|
[p 432]
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 28 March 1995, the Kingdom of Spain (hereinafter called "Spain") filed
in the Registry of the Court an Application instituting proceedings against
Canada in respect of a dispute relating to the amendment, on 12 May 1994, of
the Canadian Coastal Fisheries Protection Act, and the subsequent amendments
to the regulations implementing that Act, as well as to specific actions
taken on the basis of the amended Act and its regulations, including the
pursuit, boarding and seizure on the high seas, on 9 March 1995, of a
fishing vessel - the Estai - flying the Spanish flag. The Application
invoked as the basis of the jurisdiction of the Court the declarations
whereby both States have accepted its compulsory jurisdiction in accordance
with Article 36, paragraph 2, of its Statute.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated to the Canadian Government by the Registrar; and,
pursuant to paragraph 3 of that Article, all States entitled to appear
before the Court were notified of the Application.
3. By letter of 21 April 1995, the Ambassador of Canada to the Netherlands
informed the Court that, in his Government's opinion, the Court
"manifestly lacks jurisdiction to deal with the Application filed by Spain .
. ., by reason of paragraph 2 (d) of the Declaration, dated 10 May 1994,
whereby Canada accepted the compulsory jurisdiction of the Court".
4. At a meeting between the President of the Court and the representatives
of the Parties held on 27 April 1995, pursuant to Article 31 of the Rules of
Court, the Agent of Canada confirmed his Government's position that the
Court manifestly lacked jurisdiction in the case. At the close of the
meeting it was agreed that the question of the jurisdiction of the Court
should be separately determined before any proceedings on the merits;
agreement was also reached on time-limits for the filing of written
pleadings on that question.
By Order of 2 May 1995, the President, taking into account the agreement
reached between the Parties, decided that the written proceedings should
first be addressed to the question of the jurisdiction of the Court to
entertain the [p 436] dispute and fixed 29 September 1995 and 29 February
1996, respectively, as the time-limits for the filing of a Memorial by Spain
and a Counter-Memorial by Canada on that question.
The Memorial and the Counter-Memorial were duly filed within the time-limits
so prescribed.
5. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them availed itself of the right conferred by Article
31, paragraph 3, of the Statute to proceed to choose a judge ad hoc to sit
in the case: Spain chose Mr. Santiago Torres Bernardez, and Canada Mr. Marc
Lalonde.
6. At a meeting held between the President of the Court and the Agents of
the Parties on 17 April 1996, pursuant to Article 31 of the Rules of Court,
the Agent of Spain expressed the wish of his Government to be authorized to
submit a Reply and the Agent of Canada stated that his Government was
opposed thereto. Each of the Parties subsequently confirmed its views on the
matter in writing, Canada in letters from its Agent dated 22 April and 3 May
1996, and Spain in letters from its Agent dated 25 April and 7 May 1996.
By Order of 8 May 1996, the Court decided that it was sufficiently informed,
at that stage, of the contentions of fact and law on which the Parties
relied with respect to its jurisdiction in the case, and that the
presentation, by them, of further written pleadings on that question
therefore did not appear necessary. The case was consequently ready for
hearing with regard to the question of the jurisdiction of the Court.
7. By letter of 8 June 1998, the Agent of Spain, referring to Article 56,
paragraph 4, of the Rules of Court, submitted to the Court five official
Canadian documents which had been published but not previously produced. A
copy thereof was communicated to the Agent of Canada, who, by letter of 9
June 1998, stated that, in his Government's opinion, the provision referred
to by Spain afforded the possibility of making reference in oral arguments
to documents which were part of readily available publications, but did not
contemplate their production, adding that despite the late date of
submission of the documents in question Canada would not object to their
production, in order to avoid delaying the work of the Court.
8. In accordance with Article 53, paragraph 2, of the Rules of Court, the
Court, after ascertaining the views of the Parties, decided that copies of
the pleadings and documents annexed should be made accessible to the public
on the opening of the oral proceedings.
9. Public sittings were held between 9 and 17 June 1998, during which
pleadings and replies were heard from the following:
For Spain: Mr. Jose Antonio Pastor Ridruejo,
Mr. Luis Ignacio Sanchez Rodriguez,
Mr. Antonio Remiro Brotons,
Mr. Keith Highet,
Mr. Pierre-Marie Dupuy.
For Canada: H.E. Mr. Philippe Kirsch,
Mr. Blair Hankey,
Mr. L. Alan Willis,
Mr. Prosper Weil.
*[p 437]
10. In the Application, the following requests were made by Spain:
"As for the precise nature of the complaint, the Kingdom of Spain requests:
(A) that the Court declare that the legislation of Canada, in so far as it
claims to exercise a jurisdiction over ships flying a foreign flag on the
high seas, outside the exclusive economic zone of Canada, is not opposable
to the Kingdom of Spain;
(B) that the Court adjudge and declare that Canada is bound to refrain from
any repetition of the acts complained of, and to offer to the Kingdom of
Spain the reparation that is due, in the form of an indemnity the amount of
which must cover all the damages and injuries occasioned; and
(C) that, consequently, the Court declare also that the boarding on the high
seas, on 9 March 1995, of the ship Estai flying the flag of Spain and the
measures of coercion and the exercise of jurisdiction over that ship and
over its captain constitute a concrete violation of the aforementioned
principles and norms of international law."
11. In the written pleadings, the following submissions were presented by
the Parties:
On behalf of the Spanish Government,
in the Memorial:
"The Kingdom of Spain requests the Court to adjudge and declare that,
regardless of any argument to the contrary, its Application is admissible
and that the Court has, and must exercise, jurisdiction in this case."
On behalf of the Canadian Government,
in the Counter-Memorial:
"May it please the Court to adjudge and declare that the Court has no
jurisdiction to adjudicate upon the Application filed by Spain on 28 March
1995."
12. In the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Spanish Government,
at the sitting of 15 June 1998:
"At the end of our oral arguments, we again note that Canada has abandoned
its allegation that the dispute between itself and Spain has become moot. At
least, it appears to have understood that it cannot be asserted that the
Spanish Application, having no further purpose for the future, merely
amounted to a request for a declaratory judgment. Nor does it say - a fact
of which we take note - that the agreement between the European Union and
Canada has extinguished the present dispute.
Spain's final submissions are therefore as follows:
We noted at the outset that the subject-matter of the dispute is Canada's
lack of title to act on the high seas against vessels flying the Spanish
flag, the fact that Canadian fisheries legislation cannot be invoked against
Spain, and reparation for the wrongful acts perpetrated against Spanish [p
438] vessels. These matters are not included in Canada's reservation to the
jurisdiction of the Court.
We also noted that Canada cannot claim to subordinate the Application of its
reservation to the sole criterion of its national legislation and its own
appraisal without disregarding your competence, under Article 36, paragraph
6, of the Statute, to determine your own jurisdiction.
Lastly, we noted that the use of force in arresting the Estai and in
harassing other Spanish vessels on the high seas, as well as the use of
force contemplated in Canadian Bills C-29 and C-8, can also not be included
in the Canadian reservation, because it contravenes the provisions of the
Charter.
For all the above reasons, we ask the Court to adjudge and declare that it
has jurisdiction in this case."
On behalf of the Canadian Government,
at the sitting of 17 June 1998:
"May it please the Court to adjudge and declare that the Court has no
jurisdiction to adjudicate upon the Application filed by Spain on 28 March
1995."
***
13. The Court will begin with an account of the background to the case.
14. On 10 May 1994 Canada deposited with the Secretary-General of the United
Nations a declaration of acceptance of the compulsory jurisdiction of the
Court which was worded as follows:
"On behalf of the Government of Canada,
(1) I give notice that I hereby terminate the acceptance by Canada of the
compulsory jurisdiction of the International Court of Justice hitherto
effective by virtue of the declaration made on 10 September 1985 in
conformity with paragraph 2 of Article 36 of the Statute of the Court.
(2) I declare that the Government of Canada accepts as compulsory ipso facto
and without special convention, on condition of reciprocity, the
jurisdiction of the International Court of Justice, in conformity with
paragraph 2 of Article 36 of the Statute of the Court, until such time as
notice may be given to terminate the acceptance, over all disputes arising
after the present declaration with regard to situations or facts subsequent
to this declaration, other than:
(a) disputes in regard to which the parties have agreed or shall agree to
have recourse to some other method of peaceful settlement;[p 439]
(b) disputes with the Government of any other country which is a member of
the Commonwealth, all of which disputes shall be settled in such manner as
the parties have agreed or shall agree;
(c) disputes with regard to questions which by international law fall
exclusively within the jurisdiction of Canada; and
(d) disputes arising out of or concerning conservation and management
measures taken by Canada with respect to vessels fishing in the NAFO
Regulatory Area, as defined in the Convention on Future Multilateral
Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement
of such measures.
(3) The Government of Canada also reserves the right at any time, by means
of a notification addressed to the Secretary-General of the United Nations,
and with effect as from the moment of such notification, either to add to,
amend or withdraw any of the foregoing reservations, or any that may
hereafter be added.
It is requested that this notification be communicated to the Governments of
all the States that have accepted the Optional Clause and to the Registrar
of the International Court of Justice."
The three reservations set forth in subparagraphs (a), (b) and (c) of
paragraph 2 of the above-mentioned declaration had already been included in
Canada's prior declaration of 10 September 1985. Subparagraph (d) of the
1994 declaration, however, set out a new, fourth reservation, further
excluding from the jurisdiction of the Court
"(d) disputes arising out of or concerning conservation and management
measures taken by Canada with respect to vessels fishing in the NAFO
Regulatory Area, as defined in the Convention on Future Multilateral
Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement
of such measures."
15. On the same day that the Canadian Government deposited its new
declaration, it submitted to Parliament Bill C-29 amending the Coastal
Fisheries Protection Act by extending its area of application to include the
Regulatory Area of the Northwest Atlantic Fisheries Organization (NAFO).
Bill C-29 was adopted by Parliament, and received the Royal Assent on 12 May
1994.
Section 2 of the Coastal Fisheries Protection Act as amended defined the
"NAFO Regulatory Area" as "that part of the Convention Area of the Northwest
Atlantic Fisheries Organization that is on the high seas . . . ."[p 440]
The new Section 5.1 of the Act contained the following declaration:
"5.1 Parliament, recognizing
(a) that straddling stocks on the Grand Banks of Newfoundland are a major
renewable world food source having provided a livelihood for centuries to
fishers,
(b) that those stocks are threatened with extinction,
(c) that there is an urgent need for all fishing vessels to comply in both
Canadian fisheries waters and the NAFO Regulatory Area with sound
conservation and management measures for those stocks, notably those
measures that are taken
under the Convention on Future Multilateral Co-operation in the Northwest
Atlantic Fisheries, done at Ottawa on October 24, 1978, Canada Treaty Series
1979 No. 11, and
(d) that some foreign fishing vessels continue to fish for those stocks in
the NAFO Regulatory Area in a manner that undermines the effectiveness of
sound conservation and management measures,
declares that the purpose of section 5.2. is to enable Canada to take urgent
action necessary to prevent further destruction of those stocks and to
permit their rebuilding, while continuing to seek effective international
solutions to the situation referred to in paragraph (d)."
The new Section 5.2 read as follows:
"5.2 No person, being aboard a foreign fishing vessel of a prescribed class,
shall, in the NAFO Regulatory Area, fish or prepare to fish for a straddling
stock in contravention of any of the prescribed conservation and management
measures."
Sections 7 ("Boarding by protection officer"), 7.1 ("Search") and 8.1 ("Use
of force") of the Act as amended dealt with the activities of Canadian
fisheries protection officers within the NAFO Regulatory Area. These
sections read as follows:
"7. A protection officer may
(a) for the purpose of ensuring compliance with this Act and the
regulations, board and inspect any fishing vessel found within Canadian
fisheries waters or the NAFO Regulatory Area; and
(b) with a warrant issued under section 7.1, search any fishing vessel found
within Canadian fisheries waters or the NAFO Regulatory Area and its cargo.
"7.1. (1) A justice of the peace who on ex parte application is satisfied by
information on oath that there are reasonable grounds to believe that there
is in any place, including any premises, vessel or [p 441] vehicle, any fish
or other thing that was obtained by or used in, or that will afford evidence
in respect of, a contravention of this Act or the regulations, may issue a
warrant authorizing the protection officer named in the warrant to enter and
search the place for the fish or other thing subject to any conditions that
may be specified in the warrant.
(2) A protection officer may exercise the powers referred to in paragraph 7
(b) without a warrant if the conditions for obtaining a warrant exist but,
by reason of exigent circumstances, it would not be practical to obtain a
warrant."
"8.1. A protection officer may, in the manner and to the extent prescribed
by the regulations, use force that is intended or is likely to disable a
foreign fishing vessel, if the protection officer
(a) is proceeding lawfully to arrest the master or other person in command
of the vessel; and
(b) believes on reasonable grounds that the force is necessary for the
purpose of arresting that master or other person."
Finally, the new Section 18.1, which was concerned with the application of
criminal law, stated:
"An act or omission that would be an offence under an Act of Parliament if
it occurred in Canada is deemed to have been committed in Canada if it
occurs, in the course of enforcing this Act,
(a) in the NAFO Regulatory Area on board or by means of a foreign fishing
vessel on board or by means of which a contravention of section 5.2 has been
committed; or
(b) in the course of continuing pursuit that commenced while a foreign
fishing vessel was in Canadian fisheries waters or the NAFO Regulatory
Area."
16. On 12 May 1994, following the adoption of Bill C-8, Canada also amended
Section 25 of its Criminal Code relating to the use of force by police
officers and other peace officers enforcing the law. This Section applied as
well to fisheries protection officers, since their duties incidentally
included those of peace officers.
17. On 25 May 1994 the Coastal Fisheries Protection Regulations were also
amended.
The new Sections 19.3 to 19.5 regulated "the use of force" by Canadian
fisheries protection officers pursuant to Section 8.1 of the amended Act.
The new subsection 2 of Section 21 of the Regulations provided as follows:
[p 442]
"(2) For the purposes of section 5.2 of the Act,
(a) straddling stocks are,
(i) in Division 3L, Division 3N and Division 3O, the stocks of fish set out
in Table I to this section, and
(ii) in Division 3M, the stocks of fish set out in Table II to this section;
(b) vessels without nationality and foreign fishing vessels that fly the
flag of any state set out in Table III to this section are prescribed
classes of vessels; and
(c) a prohibition against fishing for straddling stocks, preparing to fish
for straddling stocks or catching and retaining straddling stocks is a
prescribed conservation and management measure."
The "straddling stocks" referred to in "Table I" included the "Greenland
halibut" (also called in French "fletan noir"). This was the only stock
mentioned in "Table II". "Table III" specified Belize, the Cayman Islands,
Honduras, Panama, Saint Vincent and the Grenadines and Sierra Leone.
18. These Regulations were further amended on 3 March 1995.
In their amended version, paragraphs (b) to (d) of Section 21 (2) read as
follows:
"(b) the following classes of foreign fishing vessels are prescribed classes
namely
(i) foreign fishing vessels without nationality,
(ii) foreign fishing vessels that fly the flag of any state set out in Table
III to this section, and
(iii) foreign fishing vessels that fly the flag of any state set out in
Table IV to this section;
(c) in respect of a foreign fishing vessel of a class prescribed by
subparagraph (b) (i) or (ii), prohibitions against fishing for the
straddling stocks set out in Table I or II to this section, preparing to
fish for those straddling stocks and catching and retaining those straddling
stocks are prescribed conservation and management measures; and
(d) in respect of a foreign fishing vessel of a class prescribed by
subparagraph (b) (iii), the measures set out in Table V to this section are
prescribed conservation and management measures".
"Table IV" referred to Spain and Portugal. "Table V", which was headed
"Prescribed Conservation and Management Measures", began by laying down the
following prohibitions:
"1. Prohibitions against fishing for, or catching and retaining, Greenland
halibut in Division 3L, Division 3M, Division 3N or Division 3O during the
period commencing on March 3 and terminating on December 31 in any year."
19. On 9 March 1995, the Estai, a fishing vessel flying the Spanish flag and
manned by a Spanish crew, was intercepted and boarded some 245 miles from
the Canadian coast, in Division 3L of the NAFO Regulatory Area (Grand Banks
area), by Canadian Government vessels. The vessel was seized and its master
arrested on charges of violations of the Coastal Fisheries Protection Act
and its implementing regulations. They were brought to the Canadian port of
St. John's,
Newfoundland, where they were charged with offences under the above
legislation, and in particular illegal fishing for Greenland halibut; part
of the ship's catch was confiscated. The members of the crew were released
immediately. The master was released on 12 March 1995, following the payment
of bail, and the vessel on 15 March 1995, following the posting of a bond.
20. The same day that the Estai was boarded, the Spanish Embassy in Canada
sent two Notes Verbales to the Canadian Department of Foreign Affairs and
International Trade. The second of these stated inter alia that: "the
Spanish Government categorically condemned the pursuit and harassment of a
Spanish vessel by vessels of the Canadian navy, in flagrant violation of the
international law in force, since these acts [took] place outside the
200-mile zone". On 10 March 1995, the Spanish Ministry of Foreign Affairs
sent a Note Verbale to the Canadian Embassy in Spain which contained the
following passage:
"In carrying out the said boarding operation, the Canadian authorities
breached the universally accepted norm of customary international law
codified in Article 92 and articles to the same effect of the 1982
Convention of the Law of the Sea, according to which ships on the high seas
shall be subject to the exclusive jurisdiction of the flag State . .
.
The Spanish Government considers that the wrongful act committed by ships of
the Canadian navy can in no way be justified by presumed concern to conserve
fisheries in the area, since it violates the established provisions of the
NAFO Convention to which Canada is a party."
In its turn, on 10 March 1995 the Canadian Department of Foreign Affairs and
International Trade sent a Note Verbale to the Spanish Embassy in Canada, in
which it was stated that "the Estai resisted the efforts to board her made
by Canadian inspectors in accordance with international practice" and that
"the arrest of the Estai was necessary in order to put a stop to the
overfishing of Greenland halibut by Spanish fishermen". [p 444]
Also on 10 March 1995, the European Community and its member States sent a
Note Verbale to the Canadian Department of Foreign Affairs and International
Trade which included the following:
"The arrest of a vessel in international waters by a State other than the
State of which the vessel is flying the flag and under whose jurisdiction it
falls, is an illegal act under both the NAFO Convention and customary
international law, and cannot be justified by any means. With this action
Canada is not only flagrantly violating international law, but is failing to
observe normal behaviour of responsible States.
This act is particularly unacceptable since it undermines all the efforts of
the international community, notably in the framework of the FAO and the
United Nations Conference on Straddling Fish Stocks and Highly Migratory
Fish Stocks, to achieve effective conservation through enhanced cooperation
in the management of fisheries resources.
This serious breach of international law goes far beyond the question of
fisheries conservation. The arrest is a lawless act against the sovereignty
of a Member State of the European Community. Furthermore, the behaviour of
the Canadian vessels has clearly endangered the lives of the crew and the
safety of the Spanish vessel concerned.
The European Community and its Member States demand that Canada immediately
release the vessel, repair any damages caused, cease and desist from its
harassment of vessels flying the flag of Community Member States and
immediately repeal the legislation under which it claims to take such
unilateral action."
21. On 16 April 1995, an "Agreement constituted in the form of an Agreed
Minute, an Exchange of Letters, an Exchange of Notes and the Annexes thereto
between the European Community and Canada on fisheries in the context of the
NAFO Convention" was initialled; this Agreement was signed in Brussels on 20
April 1995.
In Part A ("Control and Enforcement") of the Agreed Minute, the Community
and Canada agreed on proposals which would "constitute the basis for a
submission to be jointly prepared and made to the NAFO Fisheries Commission,
for its consideration and approval, to establish a Protocol to strengthen
the NAFO Conservation and Enforcement Measures"; at the same time the
parties decided to implement immediately, on a provisional basis, certain
control and enforcement measures. In Part B ("Total Allowable Catch and
Catch Limits"), they agreed on the total allowable catch for 1995 for
Greenland halibut within the area concerned, and to certain management
arrangements for stocks of this fish. In Part C ("Other Related Issues")
Canada undertook to[p 445]
"repeal the provisions of the Regulation of 3 March 1995 pursuant to the
Coastal Fisheries Protection Act which subjected vessels from Spain and
Portugal to certain provisions of the Act and prohibited these vessels from
fishing for Greenland halibut in the NAFO Regulatory Area";
it was further stated that, for the European Community, "any re-insertion by
Canada of vessels from any European Community member State into legislation
which subjects vessels on the high seas to Canadian jurisdiction" would be
considered as a breach of the Agreed Minute. It was likewise stated in that
Part that Canada would regard as a breach of the Agreed Minute
"any systematic and sustained failure of the European Community to control
its fishing vessels in the NAFO Regulatory Area which clearly has resulted
in violations of a serious nature of NAFO conservation and enforcement
measures".
Point 1 of Part D ("General Provisions") of the Agreed Minutes provided as
follows:
"The European Community and Canada maintain their respective positions on
the conformity of the amendment of 25 May 1994 to Canada's Coastal Fisheries
Protection Act, and subsequent regulations, with customary international law
and the NAFO Convention. Nothing in this Agreed Minute shall prejudice any
multilateral convention to which the European Community and Canada, or any
Member State of the European Community and Canada, are parties, or their
ability to preserve and defend their rights in conformity with international
law, and the views of either Party with respect to any question relating to
the Law of the Sea."
Finally, Part E ("Implementation") stated that the "Agreed Minute [would]
cease to apply on 31 December 1995 or when the measures described in this
Agreed Minute [were] adopted by NAFO, if this [should be] earlier".
The Exchange of Letters noted the agreement of the parties on two points. It
was agreed, on the one hand, that the posting of a bond for the release of
the vessel Estai and the payment of bail for the release of its master
"[could] not be interpreted as meaning that the European Community or its
Member States recognize[d] the legality of the arrest or the jurisdiction of
Canada beyond the Canadian 200-mile zone against fishing vessels flying the
flag of another State"
and, on the other hand, that
"the Attorney-General of Canada [would] consider the public inter-[p 446]est
in his decision on staying the prosecution against the vessel Estai and its
master; in such case, the bond, bail and catch or its proceeds [would] be
returned to the master".
The European Community emphasized that the stay of prosecution was essential
for the application of the Agreed Minute.
22. On 18 April 1995 the proceedings against the Estai and its master were
discontinued by order of the Attorney-General of Canada; on 19 April 1995
the bond was discharged and the bail was repaid with interest; and
subsequently the confiscated portion of the catch was returned. On 1 May
1995 the Coastal Fisheries Protection Regulations were amended so as to
remove Spain and Portugal from Table IV to Section 21. Finally, the Proposal
for Improving Fisheries Control and Enforcement, contained in the Agreement
of 20 April 1995, was adopted by NAFO at its annual meeting held in
September 1995 and became measures binding on all Contracting Parties with
effect from 29 November 1995.
***
23. Neither of the Parties denies that there exists a dispute between them.
Each Party, however, characterizes the dispute differently. Spain has
characterized the dispute as one relating to Canada's lack of entitlement to
exercise jurisdiction on the high seas, and the non-opposability of its
amended Coastal Fisheries Protection legislation and regulations to third
States, including Spain. Spain further maintains that Canada, by its
conduct, has violated Spain's rights under international law and that such
violation entitles it to reparation. Canada states that the dispute concerns
the adoption of measures for the conservation and management of fisheries
stocks with respect to vessels fishing in the NAFO Regulatory Area and their
enforcement.
24. Spain contends that the purpose of its Application is not to seise the
Court of a dispute concerning fishing on the high seas or the management and
conservation of biological resources in the NAFO Regulatory Area. Claiming
that its exclusive jurisdiction over ships flying its flag on the high seas
has been disregarded and swept aside, it argues that
"the object of the Spanish Application relates essentially to Canada's
entitlement in general, and in particular in relation to Spain, to exercise
its jurisdiction on the high seas against ships flying the Spanish flag and
their crews, and to enforce that right by a resort to armed force".
25. Spain maintains that the Agreement of 20 April 1995 between the European
Community and Canada on fisheries in the context of the NAFO Convention (see
paragraph 21 above) settled as between Canada [p 447] and the Community
certain aspects of a dispute provoked by the unilateral actions of Canada
within the area of the high seas subject to regulation by NAFO (an
organization of which both the Community and Canada are members). Spain also
stresses that it co-operated in the conclusion of this Agreement as a member
State of the Community, to which, it states, competence in respect of
fisheries conservation and management has been transferred. However,
according to Spain, its Application is based on a right exclusive to itself
and concerns a dispute whose subject-matter differs from that covered by the
Agreement; this dispute, therefore, is not merely a matter of fisheries
conservation and management.
26. For its part, Canada is of the view that:
"this case arose out of and concerns conservation and management measures
taken by Canada with respect to Spanish vessels fishing in the NAFO
Regulatory Area and the enforcement of such measures".
Canada contended at the hearing that Spain's Application constitutes
"a claim in State responsibility on account of Canada's alleged violation of
the international obligations incumbent upon it under the rules and
principles of general international law",
and maintained that a dispute consists of an indivisible whole comprising
facts and rules of law. In its view the Court cannot have jurisdiction with
regard to one of these elements and not have jurisdiction with regard to the
other.
27. Canada, referring to the notes of protest addressed to it by the
European Community and by Spain (see paragraph 20 above), points out that
they contain no trace of any distinction between a dispute with the European
Community and a dispute with Spain, and that both the protests of the
Community and those by the Spanish authorities "are founded on the dual,
inextricably linked grounds of the fisheries protection legislation and
general principles of international law". Canada argues that this conclusion
is confirmed by the Agreement of 20 April 1995 between the European
Community and Canada, inasmuch as "here, too, those questions relating to
fisheries and those relating to State jurisdiction, legal entitlement and
respect for the rights of the flag State are closely interlinked".
28. Spain insists that it is free, as the Applicant in this case, to
characterize the dispute that it wishes the Court to resolve.
*
29. There is no doubt that it is for the Applicant, in its Application, to
present to the Court the dispute with which it wishes to seise the Court and
to set out the claims which it is submitting to it. [p 448]
Paragraph 1 of Article 40 of the Statute of the Court requires moreover that
the "subject of the dispute" be indicated in the Application; and, for its
part, paragraph 2 of Article 38 of the Rules of Court requires "the precise
nature of the claim" to be specified in the Application. In a number of
instances in the past the Court has had occasion to refer to these
provisions. It has characterized them as "essential from the point of view
of legal security and the good administration of justice" and, on this
basis, has held inadmissible new claims, formulated during the course of
proceedings, which, if they had been entertained, would have transformed the
subject of the dispute originally brought before it under the terms of the
Application (Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 266-267; see also
Prince von Pless Administration, Order of 4 February 1933, P.C.I.J., Series
A/B, No. 52, p. 14 and Societe Commerciale de Belgique, Judgment, 1939,
P.C.I.J., Series A/B, No. 78, p. 173).
In order to identify its task in any proceedings instituted by one State
against another, the Court must begin by examining the Application (see
Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 21;
Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports
1960, p. 27; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 260, para. 24). However, it may happen that uncertainties or
disagreements arise with regard to the real subject of the dispute with
which the Court has been seised, or to the exact nature of the claims
submitted to it. In such cases the Court cannot be restricted to a
consideration of the terms of the Application alone nor, more generally, can
it regard itself as bound by the claims of the Applicant.
Even in proceedings instituted by Special Agreement, the Court has
determined for itself, having examined all of the relevant instruments, what
was the subject of the dispute brought before it, in circumstances where the
parties could not agree on how it should be characterized (see Territorial
Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp.
14-15, para. 19 and p. 28, para. 57).
30. It is for the Court itself, while giving particular attention to the
formulation of the dispute chosen by the Applicant, to determine on an
objective basis the dispute dividing the parties, by examining the position
of both Parties:
"It is the Court's duty to isolate the real issue in the case and to
identify the object of the claim. It has never been contested that the Court
is entitled to interpret the submissions of the parties, and in fact is
bound to do so; this is one of the attributes of its judicial functions"
(Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p.
466, para. 30; see also Request for an Examination of the Situation in
Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in
the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995,
I.C.J. Reports 1995, p. 304, para. 55.) [p 449]
The Court's jurisprudence shows that the Court will not confine itself to
the formulation by the Applicant when determining the subject of the
dispute. Thus, in the case concerning the Right of Passage over Indian
Territory, the Court, in order to form a view as to its jurisdiction,
defined the subject of the dispute in the following terms:
"A passage in the Application headed 'Subject of the Dispute' indicates that
subject: as being the conflict of views which arose between the two States
when, in 1954, India opposed the exercise of Portugal's right of passage. If
this were the subject of the dispute referred to the Court, the challenge to
the jurisdiction could not be sustained. But it appeared from the
Application itself and it was fully confirmed by the subsequent proceedings,
the Submissions of the Parties and statements made in the course of the
hearings, that the dispute submitted to the Court has a threefold subject:
(1) The disputed existence of a right of passage in favour of Portugal;
(2) The alleged failure of India in July 1954 to comply with its obligations
concerning that right of passage;
(3) The redress of the illegal situation flowing from that failure." (Right
of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, pp.
33-34.)
31. The Court will itself determine the real dispute that has been submitted
to it (see Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, pp.
24-25). It will base itself not only on the Application and final
submissions, but on diplomatic exchanges, public statements and other
pertinent evidence (see Nuclear Tests (Australia v. France), Judgment,
I.C.J. Reports 1974, pp. 262-263).
32. In so doing, the Court will distinguish between the dispute itself and
arguments used by the parties to sustain their respective submissions on the
dispute:
"The Court has . . . repeatedly exercised the power to exclude, when
necessary, certain contentions or arguments which were advanced by a party
as part of the submissions, but which were regarded by the Court, not as
indications of what the party was asking the Court to decide, but as reasons
advanced why the Court should decide in the sense contended for by that
party." (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 262, para. 29; see also cases concerning Fisheries, Judgment, I.C.J.
Reports 1951, p. 126; Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953,
p. 52; Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p. 16.)
33. In order to decide on the preliminary issue of jurisdiction which arises
in the present case, the Court will ascertain the dispute between Spain and
Canada, taking account of Spain's Application, as well as [p 450] the
various written and oral pleadings placed before the Court by the Parties.
34. The filing of the Application was occasioned by specific acts of Canada
which Spain contends violated its rights under international law. These acts
were carried out on the basis of certain enactments and regulations adopted
by Canada, which Spain regards as contrary to international law and not
opposable to it. It is in that context that the legislative enactments and
regulations of Canada should be considered.
35. The specific acts (see paragraph 34 above) which gave rise to the
present dispute are the Canadian activities on the high seas in relation to
the pursuit of the Estai, the means used to accomplish its arrest and the
fact of its arrest, and the detention of the vessel and arrest of its
master, arising from Canada's amended Coastal Fisheries Protection Act and
implementing regulations. The essence of the dispute between the Parties is
whether these acts violated Spain's rights under international law and
require reparation. The Court must now decide whether the Parties have
conferred upon it jurisdiction in respect of that dispute.
**
36. As Spain sees it, Canada has in principle accepted the jurisdiction of
the Court through its declaration under Article 36, paragraph 2, of the
Statute, and it is for Canada to show that the reservation contained in
paragraph 2 (d) thereto does exempt the dispute between the Parties from
this jurisdiction. Canada, for its part, asserts that Spain must bear the
burden of showing why the clear words of paragraph 2 (d) do not withhold
this matter from the jurisdiction of the Court.
37. The Court points out that the establishment or otherwise of jurisdiction
is not a matter for the parties but for the Court itself. Although a party
seeking to assert a fact must bear the burden of proving it (see Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, p. 437, para. 101), this has no relevance for the establishment of the
Court's jurisdiction, which is a "question of law to be resolved in the
light of the relevant facts" (Border and Transborder Armed Actions
(Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1988, p. 76, para. 16).
38. That being so, there is no burden of proof to be discharged in the
matter of jurisdiction. Rather, it is for the Court to determine from all
the facts and taking into account all the arguments advanced by the Parties,
"whether the force of the arguments militating in favour of jurisdiction is
preponderant, and to 'ascertain whether an intention on the [p 451] part of
the Parties exists to confer jurisdiction upon it'" (Border and Transborder
Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 76, para. 16; see also Factory at Chorzow,
Jurisdiction, Judgment No. 8, 1927, P.C.I.J. Series A, No. 9, p. 32).
**
39. As the basis of jurisdiction, Spain founded its claim solely on the
declarations made by the Parties pursuant to Article 36, paragraph 2, of the
Statute. On 21 April 1995 Canada informed the Court, by letter, that in its
view the Court lacked jurisdiction to entertain the Application because the
dispute was within the plain terms of the reservation in paragraph 2 (d) of
the Canadian declaration of 10 May 1994. This position was elaborated in its
Counter-Memorial of February 1996, and confirmed at the hearings.
40. Spain appears at times to contend that Canada's reservation is invalid
or inoperative by reason of incompatibility with the Court's Statute, the
Charter of the United Nations and with international law. However, Spain's
position mainly appears to be that these claimed incompatibilities require
an interpretation to be given to paragraph 2 (d) of the declaration
different from that advanced by Canada. In its Memorial at paragraph 39
Spain thus stated:
"Although the Court has hitherto avoided making a concrete determination on
the compatibility or incompatibility, with the Statute, of the literal
content of certain reservations, and on which certain judges have commented,
initiating a major doctrinal debate, the reservation in paragraph 2 (d) of
the Canadian Declaration does not raise any problems of this kind.
There may be reservations which, owing to their wording, are incompatible
with the Statute, but the Canadian Declaration is not one of them. On the
other hand, what may be incompatible with the Statute is a certain
interpretation of that reservation which Canada now appears to claim to
present as the sole authentic interpretation of its reservation with a view
to evading the jurisdiction of the Court.
There are - or there may be - not just anti-statutory reservations; there
are also anti-statutory interpretations of certain reservations."
While in the oral argument reference was made by Spain to "invalidity" and
"nullity", and to the reservation being without effect and applying to
"nothing", here again the emphasis was on the need for an interpretation of
the reservation that would be compatible with international law.
41. Accordingly, the Court concludes that Spain contends that the
interpretation of paragraph 2 (d) of its declaration sought for by Canada [p
452] would not only be an anti-statutory interpretation, but also an
anti-Charter interpretation and an anti-general international law
interpretation, and thus should not be accepted. The issue for the Court is
consequently to determine whether the meaning to be accorded to the Canadian
reservation allows the Court to declare that it has jurisdiction to
adjudicate upon the dispute brought before it by Spain's Application.
**
42. Spain and Canada have both recognized that States enjoy a wide liberty
in formulating, limiting, modifying and terminating their declarations of
acceptance of the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute. They equally both agree that a reservation is
an integral part of a declaration accepting jurisdiction.
43. However, different views were proffered as to the rules of international
law applicable to the interpretation of reservations to optional
declarations made under Article 36, paragraph 2, of the Statute. In Spain's
view, such reservations were not to be interpreted so as to allow reserving
States to undermine the system of compulsory jurisdiction. Moreover, the
principle of effectiveness meant that a reservation must be interpreted by
reference to the object and purpose of the declaration, which was the
acceptance of the compulsory jurisdiction of the Court. Spain did not accept
that it was making the argument that reservations to the compulsory
jurisdiction of the Court should be interpreted restrictively; it explained
its position in this respect in the following terms:
"It is said that Spain argues for the most restrictive scope permitted of
reservations, namely a restrictive interpretation of them . . . This is not
true. Spain supports the most limited scope permitted in the context of
observing of the general rule of interpretation laid down in Article 31 of
the Vienna Convention on the Law of Treaties."
Spain further contended that the contra proferentem rule, under which, when
a text is ambiguous, it must be construed against the party who drafted it,
applied in particular to unilateral instruments such as declarations of
acceptance of the compulsory jurisdiction of the Court and the reservations
which they contained. Finally, Spain emphasized that a reservation to the
acceptance of the Court's jurisdiction must be interpreted so as to be in
conformity with, rather than contrary to, the Statute of the Court, the
Charter of the United Nations and general international law.
For its part, Canada emphasized the unilateral nature of such declarations
and reservations and contended that the latter were to be interpreted in a
natural way, in context and with particular regard for the intention of the
reserving State.
44. The Court recalls that the interpretation of declarations made [p
543]under Article 36, paragraph 2, of the Statute, and of any reservations
they contain, is directed to establishing whether mutual consent has been
given to the jurisdiction of the Court.
It is for each State, in formulating its declaration, to decide upon the
limits it places upon its acceptance of the jurisdiction of the Court: "This
jurisdiction only exists within the limits within which it has been
accepted" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No.
74, p. 23). Conditions or reservations thus do not by their terms derogate
from a wider acceptance already given. Rather, they operate to define the
parameters of the State's acceptance of the compulsory jurisdiction of the
Court. There is thus no reason to interpret them restrictively. All elements
in a declaration under Article 36, paragraph 2, of the Statute which, read
together, comprise the acceptance by the declarant State of the Court's
jurisdiction, are to be interpreted as a unity, applying the same legal
principles of interpretation throughout.
45. This is true even when, as in the present case, the relevant expression
of a State's consent to the Court's jurisdiction, and the limits to that
consent, represent a modification of an earlier expression of consent, given
within wider limits. An additional reservation contained in a new
declaration of acceptance of the Court's jurisdiction, replacing an earlier
declaration, is not to be interpreted as a derogation from a more
comprehensive acceptance given in that earlier declaration; thus, there is
no reason to interpret such a reservation restrictively. Accordingly, it is
the declaration in existence that alone constitutes the unity to be
interpreted, with the same rules of interpretation applicable to all its
provisions, including those containing reservations.
46. A declaration of acceptance of the compulsory jurisdiction of the Court,
whether there are specified limits set to that acceptance or not, is a
unilateral act of State sovereignty. At the same time, it establishes a
consensual bond and the potential for a jurisdictional link with the other
States which have made declarations pursuant to Article 36, paragraph 2, of
the Statute, and "makes a standing offer to the other States party to the
Statute which have not yet deposited a declaration of acceptance" (Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, I.C.J. Reports 1998, para. 25). The regime relating
to the interpretation of declarations made under Article 36 of the Statute
is not identical with that established for the interpretation of treaties by
the Vienna Convention on the Law of Treaties (ibid., para. 30). Spain has
suggested in its pleadings that "this does not mean that the legal rules and
the art of interpreting declarations (and reservations) do not coincide with
those governing the interpretation of treaties". The Court observes that the
provisions of that Convention may only apply analogously to the extent
compatible with the sui generis character
of the unilateral acceptance of the Court's jurisdiction. [p 454]
47. In the event, the Court has in earlier cases elaborated the appropriate
rules for the interpretation of declarations and reservations. Every
declaration "must be interpreted as it stands, having regard to the words
actually used" (Anglo-Iranian Oil Co., Preliminary Objection, Judgment,
I.C.J. Reports 1952, p. 105). Every reservation must be given effect "as it
stands" (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 27).
Therefore, declarations and reservations are to be read as a whole.
Moreover, "the Court cannot base itself on a purely grammatical
interpretation of the text. It must seek the interpretation which is in
harmony with a natural and reasonable way of reading the text."
(Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports
1952, p. 104.)
48. At the same time, since a declaration under Article 36, paragraph 2, of
the Statute, is a unilaterally drafted instrument, the Court has not
hesitated to place a certain emphasis on the intention of the depositing
State. Indeed, in the case concerning Anglo-Iranian Oil Co., the Court found
that the limiting words chosen in Iran's declaration were "a decisive
confirmation of the intention of the Government of Iran at the time when it
accepted the compulsory jurisdiction of the Court" (ibid., p. 107).
49. The Court will thus interpret the relevant words of a declaration
including a reservation contained therein in a natural and reasonable way,
having due regard to the intention of the State concerned at the time when
it accepted the compulsory jurisdiction of the Court. The intention of a
reserving State may be deduced not only from the text of the relevant
clause, but also from the context in which the clause is to be read, and an
examination of evidence regarding the circumstances of its preparation and
the purposes intended to be served. In the Aegean Sea Continental Shelf
case, the Court affirmed that it followed clearly from its jurisprudence
that in interpreting the contested reservation
"regard must be paid to the intention of the Greek Government at the time
when it deposited its instrument of accession to the General Act; and it was
with that jurisprudence in mind that the Court asked the Greek Government to
furnish it with any available evidence of explanations of the instrument of
accession given at that time" (Aegean Sea Continental Shelf, Judgment,
I.C.J. Reports 1978, p. 29, para. 69).
In the present case the Court has such explanations in the form of Canadian
ministerial statements, parliamentary debates, legislative proposals and
press communiques.
50. Where, moreover, an existing declaration has been replaced by a new
declaration which contains a reservation, as in this case, the intentions of
the Government may also be ascertained by comparing the terms of the two
instruments.
51. The contra proferentem rule may have a role to play in the
interpretation of contractual provisions. However, it follows from the
fore-[p 455]going analysis that the rule has no role to play in this case in
interpreting the reservation contained in the unilateral declaration made by
Canada under Article 36, paragraph 2, of the Statute.
52. The Court was addressed by both Parties on the principle of
effectiveness. Certainly, this principle has an important role in the law of
treaties and in the jurisprudence of this Court; however, what is required
in the first place for a reservation to a declaration made under Article 36,
paragraph 2, of the Statute, is that it should be interpreted in a manner
compatible with the effect sought by the reserving State.
53. Spain has contended that, in case of doubt, reservations contained in
declarations are to be interpreted consistently with legality and that any
interpretation which is inconsistent with the Statute of the Court, the
Charter of the United Nations or with general international law is
inadmissible. Spain draws attention to the following finding of the Court in
the Right of Passage over Indian Territory case, where the Court had to rule
on the compatibility of a reservation with the Statute:
"It is a rule of interpretation that a text emanating from a Government
must, in principle, be interpreted as producing and as intended to produce
effects in accordance with existing law and not in violation of it." (Right
of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J.
Reports 1957, p. 142.)
Spain argues that, to comply with these precepts, it is necessary to
interpret the phrase "disputes arising out of or concerning conservation and
management measures taken by Canada with respect to vessels fishing in the
NAFO Regulatory Area . . . and the enforcement of such measures" to refer
only to measures which, since they relate to areas of the high seas, must
come within the framework of an existing international agreement or be
directed at stateless vessels. It further argues that an enforcement of such
measures which involves a recourse to force on the high seas against vessels
flying flags of other States could not be consistent with international law
and that this factor too requires an interpretation of the reservation
different from that given to it by Canada.
54. Spain's position is not in conformity with the principle of
interpretation whereby a reservation to a declaration of acceptance of the
compulsory jurisdiction of the Court is to be interpreted in a natural and
reasonable way, with appropriate regard for the intentions of the reserving
State and the purpose of the reservation. In point of fact, reservations
from the Court's jurisdiction may be made by States for a variety of
reasons; sometimes precisely because they feel vulnerable about the legality
of their position or policy. Nowhere in the Court's case-law has it been
suggested that interpretation in accordance with the legality under
international law of the matters exempted from the jurisdiction of the Court
is a rule that governs the interpretation of such reservations: [p 456]
"Declarations of acceptance of the compulsory jurisdiction of the Court are
facultative, unilateral engagements, that States are absolutely free to make
or not to make. In making the declaration a State is equally free either to
do so unconditionally and without limit of time for its duration, or to
qualify it with conditions or reservations." (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 418, para.
59.)
The holding of the Court relied on by Spain in the Right of Passage over
Indian Territory case, which was concerned with a possible retroactive
effect of a reservation, does not detract from this principle. The fact that
a State may lack confidence as to the compatibility of certain of its
actions with international law does not operate as an exception to the
principle of consent to the jurisdiction of the Court and the freedom to
enter reservations.
55. There is a fundamental distinction between the acceptance by a State of
the Court's jurisdiction and the compatibility of particular acts with
international law. The former requires consent. The latter question can only
be reached when the Court deals with the merits, after having established
its jurisdiction and having heard full legal argument by both parties.
56. Whether or not States accept the jurisdiction of the Court, they remain
in all cases responsible for acts attributable to them that violate the
rights of other States. Any resultant disputes are required to be resolved
by peaceful means, the choice of which, pursuant to Article 33 of the
Charter, is left to the parties.
***
57. In order to determine whether the Parties have accorded to the Court
jurisdiction over the dispute brought before it, the Court must now
interpret subparagraph (d) of paragraph 2 of Canada's declaration, having
regard to the rules of interpretation which it has just set out.
**
58. However, before commencing its examination of the text of the
reservation itself, the Court feels bound to make two observations which it
considers essential in order to ascertain the intention which underlay the
adoption of that text. The first of these concerns the importance attaching
to the reservation in the light of the acceptance by Canada of the Court's
jurisdiction; the second concerns the relationship between that reservation
and the Canadian coastal fisheries protection legislation.
59. The Court has already pointed out (see paragraph 14 above) that the
current Canadian declaration replaced a previous one, dated 10 September
1985. The new declaration differs from its predecessor in one respect only:
the addition, to paragraph 2, of a subparagraph (d) con-[p 457]taining the
reservation in question. It follows that this reservation is not only an
integral part of the current declaration but also an essential component of
it, and hence of the acceptance by Canada of the Court's compulsory
jurisdiction.
60. As regards the objectives which the reservation was intended to achieve,
the Court is bound to note, in view of the facts as summarized above
(paragraphs 14 et seq.), the close links between Canada's new declaration
and its new coastal fisheries protection legislation. The new declaration
was deposited with the Secretary-General on 10 May 1994, that is to say the
very same day that Bill C-29 was submitted to the Canadian Parliament;
moreover, the terms in which Canada accepted the compulsory jurisdiction of
the Court on that day echo those of the Bill then under discussion.
Furthermore, it is evident from the parliamentary debates and the various
statements of the Canadian authorities that the purpose of the new
declaration was to prevent the Court from exercising its jurisdiction over
matters which might arise with regard to the international legality of the
amended legislation and its implementation. Thus on 10 May 1994 Canada
issued a News Release on "Foreign overfishing", explaining its policy in
this field and adding that:
"Canada has today amended its acceptance of the compulsory jurisdiction of
the International Court of Justice in the Hague to preclude any challenge
which might undermine Canada's ability to protect the stocks. This is a
temporary step in response to an emergency situation."
Further, on 12 May 1994, the Canadian Minister for Foreign Affairs made the
following statement in the Senate:
"As you know, to protect the integrity of this legislation, we registered a
reservation to the International Court of Justice, explaining that this
reservation would of course be temporary. . ."
**
61. The Court recalls that subparagraph 2 (d) of the Canadian declaration
excludes the Court's jurisdiction in the following terms:
"disputes arising out of or concerning conservation and management measures
taken by Canada with respect to vessels fishing in the NAFO Regulatory Area,
as defined in the Convention on Future Multilateral Co-operation in the
Northwest Atlantic Fisheries, 1978, and the enforcement of such measures"
(see paragraph 14 above).
Canada contends that the dispute submitted to the Court is precisely of the
kind envisaged by the cited text; it falls entirely within the terms of the
subparagraph and the Court accordingly has no jurisdiction to entertain
it.[p 458]
For Spain, on the other hand, whatever Canada's intentions, they were not
achieved by the words of the reservation, which does not cover the dispute;
thus the Court has jurisdiction. In support of this view Spain relies on
four main arguments: first, the dispute which it has brought before the
Court falls outside the terms of the Canadian reservation by reason of its
subject-matter; secondly, the amended Coastal Fisheries Protection Act and
its implementing regulations cannot, in international law, constitute
"conservation and management measures"; thirdly, the reservation
covers only "vessels" which are stateless or flying a flag of convenience;
and fourthly, the pursuit, boarding and seizure of the Estai cannot be
regarded in international law as "the enforcement of . . ." conservation and
management "measures". The Court will examine each of these arguments in
turn.
*
62. The Court will begin by pointing out that, in excluding from its
jurisdiction "disputes arising out of or concerning" the conservation and
management measures in question and their enforcement, the reservation does
not reduce the criterion for exclusion to the "subject-matter" of the
dispute. The language used in the English version - "disputes arising out of
or concerning" - brings out more clearly the broad and comprehensive
character of the formula employed. The words of the reservation exclude not
only disputes whose immediate "subject-matter" is the measures in question
and their enforcement, but also those "concerning" such measures and, more
generally, those having their "origin" in those measures ("arising out of")
- that is to say, those disputes which, in the absence of such measures,
would not have come into being. Thus the scope of the Canadian reservation
appears even broader than that of the reservation which Greece attached to
its accession to the General Act of 1928 ("disputes relating to the
territorial status of Greece"), which the Court was called upon to interpret
in the case concerning the Aegean Sea Continental Shelf (I.C.J. Reports
1978, p. 34, para. 81 and p. 36, para. 86).
63. The Court has already found, in the present case, that a dispute does
exist between the Parties, and it has identified that dispute (see paragraph
35 above). It must now determine whether that dispute has as its
subject-matter the measures mentioned in the reservation or their
enforcement, or both, or concerns those measures, or arises out of them. In
order to do this, the fundamental question which the Court must now decide
is the meaning to be given to the expression "conservation and management
measures . . ." and "enforcement of such measures" in the context of the
reservation.
*
64. Spain recognizes that the term "measure" is "an abstract word signifying
an act or provision, a demarche or the course of an action, con-[p
459]ceived with a precise aim in view" and that in consequence, in its most
general sense, the expression "conservation and management measure" must be
understood as referring to an act, step or proceeding designed for the
purpose of the "conservation and management of fish".
However, in Spain's view this expression, in the particular context of the
Canadian reservation, must be interpreted more restrictively.
Initially, Spain contended that the reservation did not apply to the
Canadian legislation, which merely represented "the legal title which [was]
the origin and basis of the prohibition of fishing on the high seas", or
"frame of reference". The reservation covered only "the consequences of that
Act for the conservation and management of resources", that is to say "the
actual procedures for enforcement or implementation of the Act". However, in
oral argument, it no longer pursued this point.
Spain's main argument, on which it relied throughout the proceedings, is
that the term "conservation and management measures" must be interpreted
here in accordance with international law and that in consequence it must,
in particular, exclude any unilateral "measure" by a State which adversely
affected the rights of other States outside that State's own area of
jurisdiction. Hence, in international law only two types of measures taken
by a coastal State could, in practice, be regarded as "conservation and
management measures": those relating to the State's exclusive economic zone;
and those relating to areas outside that zone, in so far as these came
within the framework of an international agreement or were directed at
stateless vessels. Measures not satisfying these conditions were not
conservation and management measures but unlawful acts pure and simple. In
the course of this argument, Spain referred to Article 1 (1) (b) of the
"Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December 1982 Relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks" (hereinafter referred to as the "United Nations Agreement on
Straddling Stocks of 1995"), which reads as follows
"1. For the purposes of this Agreement:
(b) 'Conservation and management measures' means measures to conserve and
manage one or more species of living marine resources that are adopted and
applied consistent with the relevant rules of international law as reflected
in the Convention and this Agreement."
65. Canada, by contrast, stresses the very wide meaning of the word
"measure". It takes the view that this is a "generic term", which is used in
international conventions to encompass statutes, regulations and
administrative action.[p 460]
Canada further argues that the expression "conservation and management
measures" is "descriptive" and not "normative"; it covers "the whole range
of measures taken by States with respect to the living resources of the
sea". Canada further states that "a generic category is never limited to the
known examples it contains". Finally, Canada contends that the United
Nations Agreement on Straddling Stocks of 1995 is not relevant for the
purpose of determining the general meaning of the expression in question and
its possible scope in other legal instruments.
66. The Court need not linger over the question whether a "measure" may be
of a "legislative" nature. As the Parties have themselves agreed, in its
ordinary sense the word is wide enough to cover any act, step or proceeding,
and imposes no particular limit on their material content or on the aim
pursued thereby. Numerous international conventions include "laws" among the
"measures" to which they refer (see for example, as regards "conservation
and management measures", Articles 61 and 62 of the 1982 United Nations
Convention on the Law of the Sea). There is no reason to suppose that any
different treatment should be applied to the Canadian reservation, the text
of which itself refers not to measures adopted by the executive but simply
to "Canada", that is to say the State as a whole, of which the legislature
is one constituent part. Moreover, as the Court has already pointed out (see
paragraph 60), the purpose of the reservation was specifically to protect
"the integrity" of the Canadian coastal fisheries protection legislation.
Thus to take the contrary view would be to disregard the evident intention
of the declarant and to deprive the reservation of its effectiveness.
67. The Court would further point out that, in the Canadian legislative
system as in that of many other countries, a statute and its implementing
regulations cannot be dissociated. The statute establishes the general legal
framework and the regulations permit the application of the statute to meet
the variable and changing circumstances through a period of time. The
regulations implementing the statute can have no legal existence
independently of that statute, while conversely the statute may require
implementing regulations to give it effect.
68. The Court shares with Spain the view that an international instrument
must be interpreted by reference to international law. However, in arguing
that the expression "conservation and management measures" as used in the
Canadian reservation can apply only to measures "in conformity with
international law", Spain would appear to mix two issues. It is one thing to
seek to determine whether a concept is known to a system of law, in this
case international law, whether it falls within the categories proper to
that system and whether, within that system, a particular meaning attaches
to it: the question of the existence and content of the concept within the
system is a matter of definition. It is quite another matter to seek to
determine whether a specific act falling within the scope of a concept known
to a system of law violates the normative rules of that system: the question
of the conformity of the act with the system is a question of legality. [p
461]
69. At this stage of the proceedings, the task of the Court is simply to
determine whether it has jurisdiction to entertain the dispute. To this end
it must interpret the terms of the Canadian reservation, and in particular
the meaning attaching in the light of international law to the expression
"conservation and management measures" as used in that reservation.
70. According to international law, in order for a measure to be
characterized as a "conservation and management measure", it is sufficient
that its purpose is to conserve and manage living resources and that, to
this end, it satisfies various technical requirements.
It is in this sense that the terms "conservation and management measures"
have long been understood by States in the treaties which they conclude.
Notably, this is the sense in which "conservation and management measures"
is used in paragraph 4 of Article 62 of the 1982 United Nations Convention
on the Law of the Sea (see also 1923 Convention between the United States of
America and Canada for the Preservation of the Halibut Fisheries of the
Northern Pacific Ocean, especially Articles 1 and 2; 1930 Convention between
the United States of America and Canada for the Preservation of the Halibut
Fisheries of the Northern Pacific Ocean and Bering Sea, Arts. 1, 2 and 3;
1949 International Convention for the Northwest Atlantic Fisheries, Art. IV
(2) and especially Art. VIII; 1959 North-East Atlantic Fisheries Convention,
Art. 7; 1973 Convention on Fishing and Conservation of the Living Resources
in the Baltic Sea and the Belts, Art. I and especially Art. X. Cf. 1958
Geneva Convention on Fishing and Conservation of the Living Resources of the
High Seas, Art. 2). The same usage is to be found in the practice of States.
Typically, in their enactments and administrative acts, States describe such
measures by reference to such criteria as: the limitation of catches through
quotas; the regulation of catches by prescribing periods and zones in which
fishing is permitted; and the setting of limits on the size of fish which
may be caught or the types of fishing gear which may be used (see, among
very many examples, Algerian Legislative Decree No. 94-13 of 28 May 1994,
establishing the general rules relating to fisheries; Argentine Law No.
24922 of 6 January 1998, establishing the Federal Fishing Regime; Malagasy
Ordinance No. 93-022 of 1993 regulating fishing and aquaculture; New Zealand
Fisheries Act 1996; as well as, for the European Union, the basic texts
formed by Regulation (EEC) No. 3760/92 of 20 December 1992, establishing a
Community system for fisheries and aquaculture, and Regulation (EC) No.
894/97 of 29 April 1997, laying down certain technical measures for the
conservation of fisheries resources. For NAFO practice, see its document
entitled Conservation and Enforcement Measures (NAFO/FC/Doc. 96/1)).
International law thus characterizes "conservation and management measures"
by reference to factual and scientific criteria.
In certain international agreements (for example the United Nations [p 462]
Agreement on Straddling Stocks of 1995 and the "Agreement to Promote
Compliance with International Conservation and Management Measures by
Fishing Vessels on the High Seas" (FAO 1993), neither of which has entered
into force) the parties have expressly stipulated, "for purposes of the
Agreement", that what is generally understood by "conservation and
management measures" must comply with the obligations of international law
that they have undertaken pursuant to these agreements, such as,
compatibility with maximum sustainable yield, concern for the needs of
developing States, the duty to exchange scientific data, effective flag
State control of its vessels, and the maintenance of detailed records of
fishing vessels.
The question of who may take conservation and management measures, and the
areas to which they may relate, is neither in international law generally
nor in these agreements treated as an element of the definition of
conservation and management measures. The authority from which such measures
derive, the area affected by them, and the way in which they are to be
enforced do not belong to the essential attributes intrinsic to the very
concept of conservation and management measures; they are, in contrast,
elements to be taken into consideration for the purpose of determining the
legality of such measures under international law.
71. Reading the words of the reservation in a "natural and reasonable"
manner, there is nothing which permits the Court to conclude that Canada
intended to use the expression "conservation and management measures" in a
sense different from that generally accepted in international law and
practice. Moreover, any other interpretation of that expression would
deprive the reservation of its intended effect.
72. The Court has already given a brief description of the amendments made
by Canada on 12 May 1994 to the Coastal Fisheries Protection Act and on 25
May 1994 and 3 March 1995 to the Coastal Fisheries Protection Regulations
(see paragraphs 15, 17 and 18).
It is clear on reading Section 5.2 of the amended Act that its sole purpose
is to prohibit certain sorts of fishing, while Sections 7, 7.1 and 8.1
prescribe the means for giving effect to that prohibition. The same applies
to the corresponding provisions of the amended Regulations. In its version
of 25 May 1994, subsection 2 of Section 21 of the Regulations, which
implements Section 5.2 of the Act, defines the protected straddling stocks
and "the prescribed classes" of vessels, and states that for such vessels "a
prohibition against fishing for straddling stocks, preparing to fish for
straddling stocks or catching and retaining straddling stocks is a
prescribed conservation and management measure". Table V to Section 21 of
the Regulations as amended on 3 March 1995 lists seven types of
"conservation and management measures" applicable to ships flying the
Spanish or Portuguese flag; the first two of these specify the species of
fish in respect of which fishing is prohibited in certain areas and during
[p 463] certain periods; the next two specify the types of fishing gear
which are prohibited; the fifth lays down size limits; while the last two
lay down certain rules with which ships must comply in connection with
inspection by protection officers.
73. The Court concludes from the foregoing that the "measures" taken by
Canada in amending its coastal fisheries protection legislation and
regulations constitute "conservation and management measures" in the sense
in which that expression is commonly understood in international law and
practice and has been used in the Canadian reservation.
*
74. The conservation and management measures to which this reservation
refers are measures "taken by Canada with respect to vessels fishing in the
NAFO Regulatory Area, as defined in the Convention on Future Multilateral
Co-operation in the Northwest Atlantic Fisheries, 1978".
Article 1, paragraph 2, of that Convention defines the NAFO "Regulatory
Area" as "that part of the Convention Area which lies beyond the areas in
which coastal States exercise fisheries jurisdiction"; paragraph 1 of this
same Article states that the "Convention Area" is "the area to which this
Convention applies" and defines that area by reference to geographical
co-ordinates.
The NAFO "Regulatory Area" is therefore indisputably part of the high seas.
The Court need not return to the doubts which this part of the reservation
may have raised on the Spanish side, in view of the construction placed by
the latter on the expression "conservation and management measures". For its
part the Court has determined that this expression must be construed in a
general and customary sense, without any special connotations with regard to
place.
75. Thus the only remaining issue posed by this part of the reservation is
the meaning to be attributed to the word "vessels". Spain argues that it is
clear from the parliamentary debates which preceded the adoption of Bill
C-29 that the latter was intended to apply only to stateless vessels or to
vessels flying a flag of convenience. It followed, according to Spain - in
view of the close links between the Act and the reservation - that the
latter also covered only measures taken against such vessels.
Canada accepts that, when Bill C-29 was being debated, there were a number
of references to stateless vessels and to vessels flying flags of
convenience, for at the time such vessels posed the most immediate threat to
the conservation of the stocks that it sought to protect. However, Canada
denies that its intention was to restrict the scope of the Act and the
reservation to these categories of vessels.
76. The Court will begin by once again pointing out that declarations [p
464] of acceptance of its jurisdiction must be interpreted in a manner which
is in harmony with the "natural and reasonable" way of reading the text,
having due regard to the intention of the declarant. The Canadian
reservation refers to "vessels fishing . . .", that is to say all vessels
fishing in the area in question, without exception. It would clearly have
been simple enough for Canada, if this had been its real intention, to
qualify the word "vessels" so as to restrict its meaning in the context of
the reservation. In the opinion of the Court the interpretation proposed by
Spain cannot be accepted, for it runs contrary to a clear text, which,
moreover, appears to express the intention of its author.
77. Furthermore, the Court cannot share the conclusions drawn by Spain from
the parliamentary debates cited by it. It is, indeed, evident from the
replies given by the Canadian Ministers of Fisheries and Oceans and for
Foreign Affairs to the questions put to them in the House of Commons and in
the Senate that at that time the principal target of the Bill was stateless
vessels and those flying flags of convenience; however, these were not the
only vessels covered. Thus the Minister of Fisheries and Oceans expressed
himself as follows before the House of Commons:
"as to what is meant by 'vessels of a prescribed class', it is simply a
reference that allows the government to prescribe or designate a class, a
type or kind of vessel we have determined is fishing in a manner
inconsistent with conservation rules and therefore against which
conservation measures could be taken.
For example, we could prescribe stateless vessels. Another example is that
we could prescribe flags of convenience. That is all that is meant."
(Emphasis added.)
Similarly, the Minister for Foreign Affairs stated in the Senate:
"We have said from the outset, and Canada's representatives abroad in our
various embassies have explained to our European partners and other parties,
that this measure is directed first of all toward vessels that are unflagged
or that operate under so-called flags of convenience."
(Emphasis added.)
Furthermore, the following statement by the Minister of Fisheries and Oceans
to the Speaker of the House of Commons leaves no doubt as to the scope of
the proposed Act:
"The legislation gives Parliament of Canada the authority to designate any
class of vessel for enforcement of conservation measures. The legislation
does not categorize whom we would enforce against. The legislation makes
clear that any vessel fishing in a manner inconsistent with good, widely
acknowledged conservation rules could be subject to action by Canada. We
cite as an example the [p 465] NAFO conservation rules. Any vessel from any
nation fishing at variance with good conservation rules could under the
authority granted in the legislation be subject to action by Canada. There
are no exceptions."
This is confirmed by the inclusion in the "prescribed classes of foreign
fishing vessels", as a result of the amendment of 3 March 1995, of vessels
flying the Spanish and Portuguese flags (see paragraph 18 above). Indeed, it
should not be forgotten that, through the enactment of the legislation by
means of regulations as well as statute, from the outset the potential was
deliberately left open to add prescribed classes of vessels, the term
"class" referring not only to types of vessels but also to the flags the
vessels were flying.
*
78. The Court must now examine the phrase "and the enforcement of such
measures", on the meaning and scope of which the Parties disagree. Spain
contends that an exercise of jurisdiction by Canada over a Spanish vessel on
the high seas entailing the use of force falls outside of Canada's
reservation to the Court's jurisdiction. Spain advances several related
arguments in support of this thesis. First, Spain says that the use of force
by one State against a fishing vessel of another State on the high seas is
necessarily contrary to international law; and as Canada's reservation must
be interpreted consistently with legality, it may not be interpreted to
subsume such use of force within the phrase "the enforcement of such
measures". Spain further asserts that the particular use of force directed
against the Estai was in any event unlawful and amounted to a violation of
Article 2, paragraph 4, of the Charter, giving rise to a separate cause of
action not caught by the reservation.
79. The Court has already indicated that there is no rule of interpretation
which requires that reservations be interpreted so as to cover only acts
compatible with international law. As explained above, this is to confuse
the legality of the acts with consent to jurisdiction (see paragraphs 55 and
56 above). Thus the Court has no need to consider further these aspects of
Spain's argument.
80. By Section 18.1 of the 1994 Act, the enforcement of its provisions in
the NAFO Regulatory Area was made subject to the application of criminal
law. In turn, Section 25 of the Criminal Code was amended following the
adoption of Bill C-8 (see paragraph 16 above). Spain contends in this
context that Canada has thus provided for penal measures related to the
criminal law and not enforcement of conservation and management measures.
Spain also contends that the expression "enforcement of such measures" in
paragraph 2 (d) of Canada's declaration contained no mention of the use of
force and that the expression should not be interpreted to include it - not
least because the relevant provisions of the [p 466] 1982 United Nations Law
of the Sea Convention relating to enforcement measures also make no mention
of the use of force.
81. The Court notes that, following the adoption of Bill C-29, the Coastal
Fisheries Protection Act authorized protection officers to board and inspect
any fishing vessel in the NAFO Regulatory Area and "in the manner and to the
extent prescribed by the regulations, use force that is intended or is
likely to disable a foreign fishing vessel", if the officer "believes on
reasonable grounds that the force is necessary for the purpose of arresting"
the master or crew (Section 8.1). Such provisions are of a character and
type to be found in legislation of various nations dealing with fisheries
conservation and management, as well as in Article 22 (1) (f) of the United
Nations Agreement on Straddling Stocks of 1995.
82. The Coastal Fisheries Protection Regulations Amendment of May 1994
specifies in further detail that force may be used by a protection officer
under Section 8.1 of the Act only when he is satisfied that boarding cannot
be achieved by "less violent means reasonable in the circumstances" and if
one or more warning shots have been fired at a safe distance (Sections 19.4
and 19.5). These limitations also bring the authorized use of force within
the category familiar in connection with enforcement of conservation
measures.
83. As to Spain's contention that Section 18.1 of the 1994 Act and the
amendment of Section 25 of the Criminal Code constitute measures of penal
law other than enforcement of fisheries conservation measures, and thus fall
outside of the reservation, the Court notes that the purpose of these
enactments appears to have been to control and limit any authorized use of
force, thus bringing it within the general category of measures in
enforcement of fisheries conservation.
84. For all of these reasons the Court finds that the use of force
authorized by the Canadian legislation and regulations falls within the
ambit of what is commonly understood as enforcement of conservation and
management measures and thus falls under the provisions of paragraph 2 (d)
of Canada's declaration. This is so notwithstanding that the reservation
does not in terms mention the use of force. Boarding, inspection, arrest and
minimum use of force for those purposes are all contained within the concept
of enforcement of conservation and management measures according to a
"natural and reasonable" interpretation of this concept.
**
85. In this Judgment, the Court has had to interpret the words of the
Canadian reservation in order to determine whether or not the acts of
Canada, of which Spain complains, fall within the terms of that reservation,
and hence whether or not it has jurisdiction. For this purpose the Court has
not had to scrutinize or prejudge the legality of the acts referred to in
paragraph 2 (d) of Canada's declaration.
Because the lawfulness of the acts which the reservation to the Canadian
declaration seeks to exclude from the jurisdiction of the Court has no
relevance for the interpretation of the terms of that reservation, the Court
has no reason to apply Article 79, paragraph 7, of its Rules in order to
declare that Canada's objection to the jurisdiction of the Court does not
possess, in the circumstances of the case, an exclusively preliminary
character.
**
86. In the course of the proceedings Spain argued that the reservation
contained in paragraph 2 (d) of Canada's declaration might be thought to
have the characteristics of an "automatic reservation" and thus be in breach
of Article 36, paragraph 6, of the Statute. It is clear from the Court's
interpretation of the reservation as set out above that it cannot be
regarded as having been drafted in terms such that its application would
depend upon the will of its author. The Court has had full freedom to
interpret the text of the reservation, and its reply to the question whether
or not it has jurisdiction to entertain the dispute submitted to it depends
solely on that interpretation.
***
87. In the Court's view, the dispute between the Parties, as it has been
identified in paragraph 35 of this Judgment, had its origin in the
amendments made by Canada to its coastal fisheries protection legislation
and regulations and in the pursuit, boarding and seizure of the Estai which
resulted therefrom. Equally, the Court has no doubt that the said dispute is
very largely concerned with these facts. Having regard to the legal
characterization placed by the Court upon those facts, it concludes that the
dispute submitted to it by Spain constitutes a dispute "arising out of" and
"concerning" "conservation and management measures taken by Canada with
respect to vessels fishing in the NAFO Regulatory Area" and "the enforcement
of such measures". It follows that this dispute comes within the terms of
the reservation contained in paragraph 2 (d) of the Canadian declaration of
10 May 1994. The Court consequently has no jurisdiction to adjudicate upon
the present dispute.
***
88. Finally, the Court notes that, in its Counter-Memorial of February 1996,
Canada maintained that any dispute with Spain had been settled, [p 468]
since the filing of the Application, by the agreement concluded on 20 April
1995 between the European Community and Canada, and that the Spanish
submissions were now without object. However, at the beginning of Canada's
oral argument, its Agent informed the Court that his Government intended to
challenge the Court's jurisdiction solely on the basis of its reservation:
"It is on this problem, and no other, that the Court is called upon to
rule". This position was confirmed at the end of the oral proceedings. Spain
nonetheless draws attention to the "Court's statutory duty to verify the
existence of a dispute between States in order to exercise its function".
It is true that it is for the Court to satisfy itself, whether at the
instance of a party or proprio motu, that a dispute has not become devoid of
purpose since the filing of the Application and that there remains reason to
adjudicate that dispute (see Northern Cameroons (Cameroon v. United
Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 38;
Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 271,
para. 58). The Court has, however, reached the conclusion in the present
case that it has no jurisdiction to adjudicate the dispute submitted to it
by Spain (see paragraph 87 above). That being so, in the view of the Court
it is not required to determine proprio motu whether or not that dispute is
distinct from the dispute which was the subject of the Agreement of 20 April
1995 between the European Community and Canada, and whether or not the Court
would have to find it moot.
***
89. For these reasons,
THE COURT,
By twelve votes to five,
Finds that it has no jurisdiction to adjudicate upon the dispute brought
before it by the Application filed by the Kingdom of Spain on 28 March 1995.
IN FAVOUR: President Schwebel; Judges Oda, Guillaume, Herczegh, Shi,
Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad
hoc Lalonde;
AGAINST: Vice-President Weeramantry; Judges Bedjaoui, Ranjeva, Vereshchetin;
Judge ad hoc Torres Bernardez.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this fourth day of December, one thousand nine
hundred and ninety-eight, in three copies, one of which will be [p 469]
placed in the archives of the Court and the others transmitted to the
Government of the Kingdom of Spain and the Government of Canada.
(Signed) Stephen M. Schwebel,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
President SCHWEBEL and Judges ODA, KOROMA and KOOIJMANS append separate
opinions to the Judgment of the Court.
Vice-President WEERAMANTRY, Judges BEDJAOUI, RANJEVA and VERESHCHETIN, and
Judge ad hoc TORRES BERNARDEZ append dissenting opinions to the Judgment of
the Court.
(Initialled) S.M.S.
(Initialled) E.V.O.
[p 470]
SEPARATE OPINION OF PRESIDENT SCHWEBEL
Reservations to declarations accepting the Court's jurisdiction under the
optional clause may exclude measures and actions by the declarant that may
be illegal under international law Canadian reservation 2 (d), not being a
"self-judging" reservation inconsistent with Article 36, paragraph 6, of the
Statute, has permitted the Court to freely consider whether it has
jurisdiction Contrary to argument of Spain's counsel, the Canadian
reservation cannot be interpreted as a "nullity" applicable to "nothing"
However, arguendo, were it so interpreted, the result would be that
reservation 2 (d), but for which Canada would not have introduced a new
declaration, cannot be severed from the declaration as a whole If
reservation 2 (d) falls or fails, so does the whole of the Canadian
declaration, thus depriving the Court of any basis ofjurisdiction in the
case.
1. I am in agreement with the reasoning as well as the conclusion of the
Court's Judgment. I feel bound, however, to add the following observations,
in view of arguments which have found a place in Spain's exposition.
2. A principal contention of Spain in these proceedings is that the
reservation set out in paragraph 2 (d) of the Canadian declaration of 10
May 1994, as interpreted by Canada to be, in Spain's words, "the sole
authentic interpretation of its reservation" (Memorial of Spain, para. 39),
is incompatible with the Statute of the Court. In its Memorial, Spain
concludes that there are or may be "not just anti-statutory reservations;
there are also anti-statutory interpretations of certain reservations"
(para. 39). A counsel for Spain in the oral hearings thus maintained that
the Court
"would only need to find that there is incompatibility with . . . Article
36, paragraph 6 [of the Statute], . . . Article 2, paragraph 4 [of the
Charter], to reject not the validity of the reservation, which we have never
called for, but the strictly unilateral interpretation Canada makes of it"
(CR 98/13, p. 64 [translation by the Registry]).
Another counsel of Spain at the same sitting argued that,
"Canada's subjective intent does not have to correspond with the objective
requirements of international law. If those requirements indicate that acts
of interference with the freedom of the seas can never properly be
classified as being 'conservation and management measures', it follows that
the Canadian reservation is pro tanto a [p 471] nullity. It did not achieve
what it had set out to achieve for the simple reason that the words it
used are impossible to use in their context consistent with international
law." (CR 98/13, p. 37.)
Spain's counsel continued:
"(2) The Canadian reservation has no objective reality or validity under
international law, and should not be given effect by the Court to block
Spain's application unless such objective validity or reality can be given
to it
The 'conservation reservation' therefore excludes nothing, since it can
apply to nothing. It is inappropriate for Canada to demand that its
subjective intent control the Court. That intent may be important if not
conclusive on the question of the object and purpose of a reservation in
the 'mind' of a declarant State. But to follow Canada's argument so far as
to make that subjective intent controlling . . . would . . . violate Article
36, paragraph 6, of the Statute." (CR 98/13, p. 48, para 61.)
3. I find the foregoing arguments of Spain which may not be wholly
consistent unpersuasive for the following reasons.
4. If Spain means to maintain that a reservation is ineffective in so far as
it excludes measures or actions by the declarant State that are illegal
under international law, I cannot agree. As the Court's Judgment
acknowledges, the very purpose, or one of the purposes, of States in making
reservations may be to debar the Court from passing upon actions of the
declarant State that may be or are legally questionable. If States by their
reservations could withhold jurisdiction only where their measures and
actions are incontestably legal, and not withhold jurisdiction where their
measures or actions are illegal or arguably illegal, much of the reason for
making reservations would disappear.
5. For the reason also stated in the Judgment of the Court, the contention
of Spain that Canada's reservation as Canada interprets it deprives the
Court of the authority to decide whether the Court has jurisdiction, and
hence violates Article 36, paragraph 6, of its Statute, is without merit.
The proceedings in the Court and the resultant Judgment more than amply
demonstrate that the Court has freely considered whether it has
jurisdiction. The Court has concluded, for the reasons meticulously set out
in the Judgment which have nothing to do with "self-judging" reservations,
that it has not.
6. Nor can I agree that reservation 2 (d), as interpreted by Canada to apply
(as its terms provide) to "disputes arising out of or concerning con-[p
472]servation and management measures taken by Canada with respect to
vessels fishing in the NAFO Regulatory Area, as defined . . . and the
enforcement of such measures" can, as a counsel for Spain contended, "apply
to nothing". Those measures, as explained in the Court's Judgment, are no
less measures of conservation and management because they are meant to
apply, and by their terms and the regulations imple-menting those terms, do
apply, "in the NAFO Regulatory Area ..." not only to vessels that are
stateless or flying flags of convenience but to other foreign vessels.
7. But if it were to be accepted, arguendo, that the foregoing contentions
of Spain are correct, and that, by reason of Canada's interpreting its
reservation to apply to any vessel fishing in the NAFO Regulatory Area, the
reservation lacks validity and is "a nullity" and "can apply to nothing", it
does not follow that the Court has jurisdiction over Spain's cause of
action. On the contrary, it follows that the Court is altogether without
jurisdiction since the nullity or ineffectiveness of reservation 2 (d)
entails the nullity or ineffectiveness of the Canadian declaration as a
whole.
8. Before filing its current declaration of 10 May 1994, Canada was bound by
an anterior declaration of 10 September 1985. That declaration contained the
following clause, which is reproduced in the declaration of 10 May 1994:
"(3) The Government of Canada also reserves the right at any time, by means
of a notification addressed to the Secretary-General of the United Nations,
and with effect as from the moment of such notification, either to add to,
amend or withdraw any of the foregoing reservations, or any that may
hereafter be added."
9. In implementation of the foregoing reservation, Canada added to its
declaration of 10 September 1985 what appears in its declaration of 10 May
1994, namely and solely, reservation 2 (d). But it did not do this by way of
transmitting an amendment to the earlier declaration which remained in
force. Rather, in paragraph 1 of its declaration of 10 May 1994, Canada gave
notice of termination of its acceptance of the Court's compulsory
jurisdiction made on 10 September 1985. In paragraph 2, it declared the
acceptance by Canada of the Court's jurisdiction over all disputes other
than those specified in subparagraphs (a), (b), (c) and (d). Since
subparagraphs (a), (b) and (c) are found in exactly the same terms in the
1985 declaration, it is clear that the only reason of Canada for terminating
that declaration, and for making a new declaration, was to add the
provisions of subparagraph (d). Moreover, those provisions do not comprise
routine recitations, such as "without special agreement" [p 473] and "on
condition of reciprocity", which duplicate those of the Statute.
Subparagraph 2 (d) introduces an entirely new, specific and purposeful
reservation. It follows that the reservation contained in subparagraph 2
(d) is not only an important but an essential provision of Canada's
declaration, but for which, or without which, no new declaration would have
been made.
10. The Court has accepted "the close and necessary link that always exists
between a jurisdictional clause and reservations to it" {Aegean Sea
Continental Shelf, Judgment, I.C.J. Reports 1978, p. 33). Yet there may be
cases of jurisdictional adherence where that link may be severed. One such
has been suggested above, where a provision is redundant. Severability has
been applied by other courts or committees in respect of certain human
rights conventions. While venturing no opinion on the ten-ability of
severability in such circumstances, those are not the circumstances now
before the Court. When, as in this case, the reservation has been treated by
the declarant State as an essential one but for which or without which
the declaration would not have been made, the Court is not free to treat the
reservation as invalid or ineffective, while treating the remainder of the
declaration to be in force. If reservation 2 (d) falls or fails, so must the
Canadian declaration of 10 May 1994 fall or fail. If the Spanish argument is
accepted on the results to be attached to Canada's interpretation of the
reservation, it follows that there is no basis whatever in this case for the
jurisdiction of the Court.
(Signed) Stephen M. SCHWEBEL.
[p 474]
SEPARATE OPINION OF JUDGE ODA
Table of contents
|
Paragraphs |
I.
Introduction |
1-2 |
|
|
II.
The
Dispute Presented to the Court
|
3-7 |
|
|
III.
Exclusion from the Court's Jurisdiction of "Disputes arising out of
or concerning Conservation and Management Measures Taken by Canada"
|
8-16 |
|
|
IV.
The Question of Admissibility and the Necessity of Prior Diplomatic
Negotiations |
17-20 |
|
|
V.
Conclusion |
21 |
[p 475]
I. Introduction
1. I voted in favour of the Court's rinding that it has no jurisdiction to
adjudicate upon the dispute brought by Spain's Application of 28 March 1995.
I am entirely in agreement with the Court when it states that it has no
jurisdiction, in consequence of the terms of the reservation contained in
paragraph 2 (d) of Canada's declaration of acceptance of the compulsory
jurisdiction of 10 May 1994, to decide on the merits of the case submitted
to it. I equally support the Court's view that Canada's objection to the
jurisdiction of the Court is, in the circumstances of the case, of an
exclusively preliminary character and that the Court has no reason to apply
Article 79, paragraph 7, of the Rules of Court (see Judgment, para. 85).
2. I do not, however, share the view of the Court on what constituted the
dispute presented by Spain in its Application to the Court and on what the
issues were in respect of which the Court was requested to rule in the
present case. I have difficulty in following the argument developed by the
Court in order to reach the conclusion although that conclusion appears to
me to be quite correct that the reservation contained in paragraph 2 (d)
of the declaration deposited by Canada on 10 May 1994 excludes this dispute
from the Court's jurisdiction.
II. The Dispute Presented to the Court
3. Since the Court, at this jurisdictional phase of the case, has not had
the opportunity to deal with the issues on the merits and since it appears
to me that the Court does not fully appreciate the essence of the dispute
and lest the real issues in the case should be buried in obscurity I
consider it appropriate for me to spell out what issues existed in the
dispute between Spain and Canada at the time that it was unilaterally
brought to the Court by Spain.
4. The subject of the "dispute" in the present case relates, according to
Spain's Application (Section 3, "The Dispute"), to the Estai incident that
took place on 9 March 1995 at a point approximately 245 miles off the coast
of Canada. The Judgment states that "[t]he filing of the Application was
occasioned by specific acts of Canada which Spain contends violated its
rights under international law" (Judgment, para. 34), namely:
"the Canadian activities on the high seas in relation to the pursuit of the
Estai, the means used to accomplish its arrest and the fact of its arrest,
and the detention of the vessel and arrest of its master, arising from
Canada's amended Coastal Fisheries Protection Act and implementing
regulations" (Judgment, para. 35).[p 476]
Certainly, Canada's legislative enactments in 1994-1995 are to be examined,
but only in this context. It is important to note that Canada's legislative
enactments are not themselves an issue in dispute in the present case.
5. The Estai incident occurred, in a geographical sense, within the
"Regulatory Area" of the 1979 Convention of Future Multilateral Cooperation
in the Northwest Atlantic Fisheries (NAFO Convention).
In 1979, the NAFO Convention replaced the 1949 International Convention for
the Northwest Atlantic Fisheries (ICNAF) after the North Atlantic coastal
States extended, in accordance with relevant principles of international
law, their jurisdiction over the living resources of their adja-cent waters
to limits of up to 200 nautical miles from the coast where they exercised
sovereign rights for the purpose of exploring and exploiting, conserving and
managing these resources (Preface, NAFO Convention). The NAFO Convention was
then signed by 14 States (including Canada and Spain) and the European
Economic Commission, in accordance with their desire
"to promote the conservation and optimum utilization of the fishery
resources of the Northwest Atlantic area within a framework appropriate to
the regime of extended coastal State jurisdiction over fisheries, and
accordingly to encourage international co-operation and consultation with
respect to these resources" (Preface, NAFO Convention).
The "Convention Area", to which the 1979 NAFO Convention applies, remains
practically identical to the "Convention Area" under the 1949 ICNAF
Convention. The "Convention Area" is divided into scientific and statistical
sub-areas, divisions and subdivisions (NAFO Convention, Art. XX and Ann.
Ill), as it was under the 1949 Convention, but these divisions have no
bearing on the exercise of jurisdiction in the "Convention Area".
The "Convention Area" now consists, from a jurisdictional point of view, of
two quite distinct areas, namely, the 200-mile exclusive economic zone
which is under the jurisdiction of the respective coastal States and the
"Regulatory Area", which "lies beyond the areas in which the coastal States
exercise fisheries jurisdiction" (NAFO Convention, Art. I, para. 2). The
Estai incident occurred in a part of the "Regulatory Area". The important
point is that the Estai incident took place in the "Regulatory Area" of the
"NAFO Convention Area" but not that it took place in any particular division
of the "Regulatory Area" (cf. Judgment, para. 19).
6. Under the framework of the NAFO Convention, the Fisheries Commission
established under this Convention (Art. II) is responsible for the
management and conservation of the fishery resources of the "Regulatory
Area" (Art. XI, para. 1). The Fisheries Commission may adopt [p 477]
proposals for joint action by the contracting parties designed to achieve
the optimum utilization of the fishery resources of the "Regulatory Area"
(Art. XI, para. 2) and may also adopt proposals for international measures
of control and enforcement within the "Regulatory Area" for the purpose of
ensuring within that Area the application of this Convention and the
measures in force thereunder (Art. XI, para. 5). Each proposal adopted by
the Commission shall become a measure binding on all contracting parties
(Art. XI, para. 7). Any Commission member may present to the Executive
Secretary of NAFO an objection to a proposal (Art. XII, para. 1).
I would like to make it plain that, within the framework of the NAFO
Convention, the management and conservation of the fishery resources in the
Regulatory Area which is an area that lies beyond the fisheries
jurisdiction of any coastal State is the responsibility of the Fisheries
Commission.
The measures provided for in the national legislation of Canada enacted in
1994-1995 were not measures binding on all contracting parties adopted
pursuant to the terms of the NAFO Convention (Art. XI, para. 7); the
enforcement action taken on 9 March 1995 by the Canadian authorities against
the Estai in the Regulatory Area could not have been taken within the
framework of the NAFO Convention.
In order to understand the real issues in the dispute presented before the
Court, these points cannot be overemphasized and I am certain that Canada
must have been fully aware of the meaning of the NAFO Convention. I however
take note of the provision of the NAFO Convention that reads:
"Nothing in this Convention shall be deemed to affect or prejudice the
positions or claims of any Contracting Party in regard to .. . the limits or
extent of the jurisdiction of any Party over fisheries; or to affect or
prejudice the views or positions of any Contracting Party with respect to
the law of the sea." (NAFO Convention, Art. I, para. 5.)
7. On 3 March 1995, Canada made certain amendments to its Coastal Fisheries
Protection Regulations, the effect of which was that all vessels registered
in Spain were prohibited from fishing Greenland halibut in the NAFO
Regulatory Area and that offenders were subject to arrest, seizure of vessel
and catch and fines. The amendments were immediately notified to Spanish
fishing vessels by radio. The Estai incident took place less than a week
later. The whole chain of events unfolded totally outside the framework of
the NAFO Convention.
Thus, the only issue in dispute at the time of filing of the present case on
28 March 1995 was whether Canada violated the rule of international [p 478]
law by claiming and exercising fisheries jurisdiction (namely, the
prescribing of fishery regulations including the exclusion of fishing
vessels flying the Spanish flag , the enforcement of those regulations by
Canadian government authorities and the imposition of penal sanctions on a
Spanish vessel and its master) in an area of the high seas beyond the limit
of its exclusive economic zone, or whether Canada was justified in
exercising fisheries jurisdiction in that area, on the ground of its
honestly held belief that the conservation of certain fish stocks was
urgently required as a result of the fishery conservation crisis in the
Northwest Atlantic irrespective of the NAFO Convention, which neither
provides for the unilateral adoption by coastal States of fishery
regulations intended to apply in the Regulatory Area, nor entrusts coastal
States with the enforcement of such regulations in that area of the high
seas.
III. Exclusion from the Court's Jurisdiction of "Disputes arising out of or
concerning Conservation and Management Measures Taken by Canada"
8. Pursuant to the Court's Order of 2 May 1995, the sole question to be
decided by the Court at the present stage of the case is whether the
dispute, as defined above, falls within the purview of the clause whereby
Canada declared its acceptance of the Court's jurisdiction on 10 May 1994,
or whether Canada is exempted from the Court's jurisdiction by virtue of
paragraph 2 (d) of that declaration.
I agree totally with the following statements by the Court with regard to
the interpretation of the reservation attached to Canada's declaration:
"[i]t is for each State, in formulating its declaration, to decide upon the
limits it places upon its acceptance of the jurisdiction of the Court . . .
Conditions or reservations [attached to the declaration] . . . operate to
define the parameters of the State's acceptance of the compulsory
jurisdiction of the Court. There is thus no reason to interpret them
restrictively" (Judgment, para. 44);
"there is no reason to interpret such a reservation restrictively" {ibid.,
para. 45);
"[t]he Court will thus interpret the relevant words of a declaration
including a reservation contained therein in a natural and reasonable way,
having due regard to the intention of the State concerned at the time when
it accepted the compulsory jurisdiction of the Court" {ibid., para. 49);
"what is required in the first place for a reservation to a declaration [p
479] made under Article 36, paragraph 2, of the Statute, is that it should
be interpreted in a manner compatible with the effect sought by the
reserving State" (Judgment, para. 52);
"declarations of acceptance of its jurisdiction must be interpreted in a
manner which is in harmony with the "natural and reasonable" way of reading
the text, having due regard to the intention of the declarant" (ibid., para.
76);
"[i]t follows that this dispute comes within the terms of the reservation
contained in paragraph 2 (d) of the Canadian declaration of 10 May 1994"
(ibid., para. 87).
I wonder if the Court needed to add anything to what it said above.
9. It goes without saying that, for the sake of judicial certainty, the
interpretation given by the declarant State to the scope of its acceptance
of the Court's jurisdiction cannot be adjusted to suit the circumstances,
but must be fixed so as to cover any case that may arise. The fact that
Canada made its declaration containing the reservation set out in paragraph
2 (d) only a few days prior to enacting the amendments to its fisheries
legislation clearly indicates the true intention of Canada in respect of
those amendments and of any dispute which might arise as a result of their
implementation.
10. It is clear, given the basic principle that the Court's jurisdiction is
based on the consent of sovereign States, that a declaration to accept the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of the
Statute, and any reservations attached thereto, must, because of the
declaration's unilateral character, be interpreted not only in a natural way
and in context, but also with particular regard for the intention of the
declarant State. Any interpretation of a respondent State's declaration
against the intention of that State will contradict the very nature of the
Court's jurisdiction, because the declaration is an instrument drafted
unilaterally.
There may well be occasions when a respondent State seeks to interpret
restrictively the scope of an applicant State's acceptance of the Court's
jurisdiction, especially if one considers that a respondent State's
obligation to comply with the Court's jurisdiction greatly depends on the
scope of the applicant State's acceptance of the Court's jurisdiction (cf.
Article 36, paragraph 2, of the Statute), but this is, of course, not the
situation in the present case.
11. Once Canada had excluded from the Court's jurisdiction certain disputes
namely, "disputes arising out of and concerning conservation and
management measures" the meaning of the reservation should, as I have
explained above, be interpreted according to the intention of Canada. I am
at a loss to understand why the Court should have felt it [p 480] necessary
to devote so much time to its interpretation of the wording of that
reservation.
In particular, I do not understand why the Court should have wished to
consider whether the expression "conservation and management measures" in
Canada's reservation 1(d) ought to be interpreted according to an allegedly
established and normative concept of "conservation and management measures".
I feel particularly that paragraph 70 of the Judgment has been drafted
under a misunderstanding of the subject, namely the law of the sea.
The first sentence of paragraph 70 makes no sense to me and I have no idea
whether there is such a rule or concept in international law. I assume that
this paragraph was included in the Court's Judgment in order to pay
lip-service to some of my colleagues who dissent from the Judgment and who
hold the view that the exercise of jurisdiction on the high seas does not
fall within the bounds of "conservation and management measures". Their view
is perfectly correct, but the matter is quite irrelevant and does not need
to be mentioned in the Judgment. In my view, the references in the Judgment
to certain international treaties or national legislation are quite
meaningless and may even be misleading.
12. "Conservation" of marine living resources is a general concept of marine
science which has been widely used since the time that the depletion of
certain resources in certain areas began to be noticed due to the
over-exploitation of those resources. In fact, as the need for international
co-operation for "conservation" has long been recognized, certain
international agreements were concluded even in the earlier part of this
century (for example, the 1911 Convention for the Protection and
Preservation of Fur Seals and Sea Otters in the North Pacific Ocean; the
1923 International Convention for the Preservation of the Halibut Fisheries
of the Northern Pacific Ocean; the 1930 Convention for Protection of
Sock-eye Salmon Fisheries, etc.).
The Proclamation on "Policy of the United States with respect to Coastal
Fisheries in Certain Areas of the High Seas" made by President Truman of the
United States of America in September 1945, immediately after the end of the
war, is regarded as far-sighted, in that it drew the world's attention to
the pressing need for the conservation and protection of fishery resources,
particularly in offshore areas (see S. Oda, The International Law of the
Ocean Development, Vol. I, p. 342). Over the following years, a number of
international conventions both multilateral and bilateral covering the
conservation of certain marine living resources were concluded (I itemize,
just as examples, some of the treaties made at that time: the 1946
Convention for the Regulation of Whaling; the 1949 International Convention
for the Northwest Atlantic Fisheries (the predecessor of the NAFO
Convention); the 1949 Convention for the Establishment of an Inter-American
Tropical Tuna Commission; the 1952 International Convention for the High
Seas Fisheries of the North Pacific [p 481] Ocean; the 1957 Interim
Convention on Conservation of North Pacific Fur Seals; the 1959 North-East
Atlantic Fisheries Convention; and, the 1966 International Convention for
the Conservation of Atlantic Tunas). The measures for conservation adopted
in each case vary according to the treaty in which they appear and were
enforced through the national legislation of the individual States parties
to each treaty.
The International Technical Conference on the Conservation of the Living
Resources of the Sea was convened by the United Nations in Rome in 1955, and
that was the first worldwide conference to produce a report dealing with the
issues of conservation of marine resources. That Conference did not provide
for any particular measures for any particular stocks or in any particular
region (see S. Oda, The International Law of the Ocean Development, Vol. I,
p. 356).
13. The "conservation" of marine living resources was thus not a new concept
and the object of conserving those resources had already been implemented in
various measures and regulations at international and national levels
according to the particular situation namely, fish stocks and regions.
Once measures for conserving marine resources were agreed upon
internationally, they were then implemented through the national legislation
applicable to the nationals of each individual State.
Another point should be noted, namely that fisheries regulations were
adopted not only for the purpose of "conservation" but were also taken as
part of the chain of "management" measures adopted by each State in
pursuance of their respective national economic or social policies.
Par-ticularly when "conservation" could no longer be effected only through
regulations limiting the mesh-size of fishing nets and the fixing of fishing
seasons or fishing areas (which regulations were imposed in equal manner
upon the nationals of the States parties), it became necessary to fix the
total allowable catch of specific stocks in particular regions. Thus,
"conservation" issues turned to the more political question of the
"management" namely, allocation and distribution of marine resources.
In addition, the number of States who attempted under the pretext of
conservation of resources to secure marine resources in their offshore
areas and to exclude foreign fishing vessels from those areas increased. In
this respect, it is important to take note of the concept of maritime
sovereignty strongly advanced in the 1950s by some Latin American States
(see, for example, the 1952 Santiago Declaration adopted at the Conference
on the Exploration and Conservation of the Marine Resources of the South
Pacific, in S. Oda, The International Law of the Ocean Development, Vol. I,
p. 345). In this process there occurred, on a [p 482] number of occasions,
incidents involving the arrest of foreign fishing vessels on the high seas,
namely, beyond the area that falls under the national jurisdiction of
coastal States (see S. Oda, "New Trends in the Regime of the Sea A
Consideration of the Problems of Conservation and Distribution of Marine
Resources, I and II", Zeitschrift fόr Auslδndisches Φffentliches Recht und
Vφlkerrecht, Bd. 18 (1957-1958); and, S. Oda, International Control of Sea
Resources, Leiden, 1962).
14. In these circumstances, marine living resources had become a matter of
great concern to the international community and to the United Nations. At
the First United Nations Conference on the Law of the Sea convened in Geneva
in 1958, the Convention on Fishing and Conservation of the Living Resources
of the High Seas was adopted to provide for "the right [of all States] to
engage in fishing on the high seas, subject. . . to the provisions . . .
concerning conservation of the living resources of the high seas" and "the
duty [of all States] to adopt, or to co-operate with other States in
adopting, such measures for their respective nationals as may be necessary
for the conservation of the living resources of the high seas" (Art. 1).
In the 1970s, by which time the monopoly of coastal fisheries far beyond the
limit of the territorial sea had become more or less a general practice, the
concept of the exclusive economic zone, to justify the exclusive control of
coastal fisheries, was emerging. Bearing in mind that the fisheries
regulations in offshore areas could no longer be a matter of exclusive
concern to each coastal State, the Third United Nations Conference on the
Law of the Sea, convened over the period 1973 to 1982, produced in 1982 at
Montego Bay the United Nations Convention on the Law of the Sea. That
Convention provides, on the one hand, for the duty of each coastal State to
"determine the allowable catch of the living resources in its exclusive
economic zone" (Art. 61, para. 1) and for the obligation of each coastal
State to "promote the objective of optimum utilization of the living
resources in the exclusive economic zone" (Art. 62, para. 1), and, on the
other hand with regard to high seas fishing, contains certain provisions
concerning "conservation and management of the living resources of the high
seas" (Part VII, Sec. 2). However, that Convention certainly does not seek
to define "conservation and management measures".
In 1995 at United Nations Headquarters in New York, the so-called Straddling
Fish Stocks Convention was agreed upon to implement the provisions of the
1982 Law of the Sea Convention relating to the conservation and management
of straddling fish stocks and highly migratory fish stocks in order to
ensure the long-term conservation and sustainable use of these stocks
which stocks, of course, have no awareness of the artificial boundary of the
exclusive economic zone.
15. It is important to note that the 1958, 1982 and 1995 United [p 483]
Nations Conventions covering marine living resources do not directly impose
any concrete "measures" for conservation of any particular stocks or
"management" of any particular fishing activities. Rather, each State party
is obliged to adopt through its own national legislation various appropriate
measures for the "conservation" of resources, designed to apply to fishing
vessels, whether national or foreign, in its own area of the exclusive
economic zone, and is also obliged to reach agreement with other States for
joint measures of conservation on the high seas. It should be noted that
there exists no fixed or concrete concept of "conservation and management
measures".
16. It appears to me from the manner in which the Court referred in
paragraph 70 of the Judgment to certain international treaties or national
legislation, selected at random, that it has misunderstood the true nature
of these instruments and has not dealt with the development of the law of
the sea in a proper manner.
It is clear to me that Canada, having reserved from the Court's
jurisdiction any "disputes arising out of or concerning conservation and
management measures", had in mind in a very broad sense and without
restriction and showing great common sense any dispute which might arise
following the enactment and enforcement of legislation concerning fishing,
either for the purpose of conservation of stocks or for management of
fisheries (allocation of the catch), in its offshore areas, whether within
its exclusive economic zone or outside it.
IV. The Question of Admissibility and the Necessity of Prior Diplomatic
Negotiations
17. In so far as the Court now determines that it cannot entertain the
Application submitted by Spain against Canada, there remains nothing more to
discuss. However, I would like to add a comment on one aspect relating to
the admissibility of the present case.
No diplomatic negotiations took place between Spain and Canada with regard
to the enactment in 1994 and 1995 of Canada's national legislation or its
amendment. Immediately after the Estai incident on 9 March 1995, there was
an exchange of Notes Verbales between Spain and Canada (as reproduced in the
Annexes to the Application and referred to in the Judgment, paragraph 20).
This could have meant that there existed a "legal" dispute concerning the
Estai incident between the two States. There was, however, no further
diplomatic negotiation between the two countries over the boarding, seizure,
detention, etc., of the Estai and the domestic judicial proceedings against
its master. Spain's Application was suddenly submitted to the Court on 28
March 1995, without any prior notice or discussion. [p 484]
18. It should be noted that, after Spain had filed its Application in the
Registry of the Court, negotiations between the European Union and Canada
came to a successful conclusion, with the initialling on 16 April 1995 and
signature on 20 April 1995 of the "Agreement constituted in the form of an
Agreed Minute, an Exchange of Letters, an Exchange of Notes and the Annexes
thereto between the European Community and Canada on fisheries in the
Context of the NAFO Convention" (see Judgment, para. 21).
In parallel with this, on 18 April 1995, the proceedings in Canada against
the Estai and its master were discontinued; on 19 April 1995 the bond was
discharged and the bail repaid with interest; subsequently the confiscated
portion of the catch was returned; and, on 1 May 1995, Canada's internal
legislation was amended so as to satisfy the position of Spain (see
Judgment, para. 22). The proposals for improving fisheries control and
enforcement contained in the Agreement of 20 April 1995 were adopted by NAFO
at its annual meeting held in September 1995 and became measures binding all
Contracting Parties with effect from 29 November 1995 (ibid.).
19. I am not suggesting that the dispute became moot or that the
submissions lost their object, and I fully agree with the Court when it
states that the Court "is not required to determine proprio motu . . .
whether or not the Court would have to find [the dispute] moot" (Judgment,
para. 88). I would, however, like to suggest that, prior to the submission
of the dispute existing on 28 March 1995, not only were diplomatic
negotiations not exhausted but they had not even begun, and that the
dispute could have been solved if negotiations between Spain and Canada had
taken place. The result of Canada's acts to remedy the situation, as
explained above, indicate just that.
20. It is arguable whether a "legal" dispute may be submitted unilaterally
to the Court only after diplomatic negotiations between the disputing
parties have been exhausted, or at least initiated, but I shall refrain from
entering into that discussion. However, I submit that it could have been
questioned, even at this jurisdictional stage separately from the issue of
whether the Court had jurisdiction to entertain Spain's Application
whether Spain's Application of 28 March 1995 in the present case was really
admissible to the Court at all.
V. Conclusion
21. I have no doubt that Canada believed that it had a legitimate right to
adopt and enforce certain fisheries legislation, but that it also believed,
in the light of the development of the law of the sea, that that right may
belong to the area of lex ferenda and, in this belief, Canada wished to
avoid any judicial determination by the International Court of Justice. [p
485]
Conversely, Spain also was perfectly entitled to believe that any amendment
by Canada of its fisheries legislation so as to make it applicable to
Spanish vessels, thus excluding them from fishing for certain stocks in an
area of the high seas, was not permitted under international law as it
stands at present.
In conclusion, I should like to say that I appreciate the goodwill shown by
Canada in the actions taken by it in May 1995 (after the Estai incident),
as a result of which the practical difficulties between the two States were
resolved.
(Signed) Shigeru ODA. [p 486]
SEPARATE OPINION OF JUDGE KOROMA
The dispute as defined by Spain Jurisdiction of the Court based on
consent, Article 36, paragraph 2, of the Statute Interpretation of a
declaration and its reservation in order to ascertain declarant State's
intention Right of a State to exclude subject-matter from jurisdiction of
Court Consent and not applicable law decisive in determining whether
jurisdiction conferred Understanding of Court's determination of
lawfulness of excluded acts in a reservation Decision of the Court neither
a licence for invalid reservations nor the abdication of its judicial
function Court reserves right to determine its inherent jurisdiction
Article 36, paragraph 6, of Statute.
1. For Spain, the core of this dispute is whether Canada is entitled under
international law to exercise its jurisdiction over foreign vessels on the
high seas. This, Spain claims, moves the dispute away from the domain of the
reservation made by Canada when it accepted the com-pulsory jurisdiction of
the Court, into the area of a major principle of international law. Spain
further contends that the Canadian reservation, if accepted by the Court,
will preclude the Court from determining whether Canada's measures of
conservation and management and their enforcement violate the norms
governing the international lawfulness of those measures, particularly the
principle of freedom of the high seas and the prohibition on the use of
force.
2. Although I voted with the majority of the Court in favour of the
Judgment, I consider, nonetheless, that the points raised by Spain are so
important and fundamental, both for the role of the Court as the principal
judicial organ charged with the administration of justice between States, as
well as in relation to its judicial function, that it is incumbent upon me
to present certain views on the matter.
3. First of all, neither Party contests the principle that the jurisdiction
of the Court is consensual and that its compulsory jurisdiction under
Article 36, paragraph 2, of the Statute is predicated upon the existence of
consent as expressed in a declaration of acceptance made by a State. This
principle was not contested as such but, given its different interpretation
by the Parties, it is both pertinent and worth repeating that the absolute
and unfettered freedom to participate, or not participate, in the optional
clause system is the basis on which reservations to a declaration are made
under that system. And as a corollary, when a State attaches to its
declaration of acceptance a reservation excluding disputes on a certain
subject, it defines or limits the Court's jurisdiction to apply the
principles and rules of international law which the Court would have
applied, had that [p 487] subject-matter not been excluded from the
jurisdiction of the Court; this is irrespective of the fact that the field
of application of such principles and rules is wider than the specific
subject-matter of the dispute concerned.
4. On the basis of these basic principles, I reached the conclusion that,
since Canada excluded from the jurisdiction of the Court "disputes arising
out of or concerning conservation and management measures", the question
whether the Court is entitled to exercise its jurisdiction must depend on
the subject-matter and not on the applicable law, or the rules purported to
have been violated. In other words, once it is established that the dispute
relates to the subject-matter defined or excluded in the reservation, then
the dispute is precluded from the jurisdiction of the Court, whatever the
scope of the rules which have purportedly been violated. Stated
differently, once the Court has determined that the measures of
conservation and management referred to in the reservation contained in the
Canadian declaration are measures of a kind which can be categorized as
conservation and management of resources of the sea and are consistent with
customary norms and well-established practice, the Court is bound to decline
to found jurisdiction on the basis of the principles and rules purported to
have been violated or said to apply.
5. In accordance with the foregoing, I take the view that the Court properly
advised itself, when, in order to determine whether or not jurisdiction had
been conferred on it in this matter, it considered the following questions:
whether Canada made a declaration under Article 36, para-graph 2, of the
Statute on 10 May 1994 accepting the compulsory jurisdiction of the Court.
Whether that declaration excludes disputes arising from or relating to
conservation and management measures and their enforcement. Whether the acts
complained of fall within the category of acts excluded.
6. In answering these questions in the affirmative, the Court not only
correctly appraised and determined the scope of the Canadian declaration,
but also reaffirmed that its jurisdiction to adjudicate on a dispute derives
from the Statute and the consent of the declarant State, as defined in its
declaration, and not from the applicable law. It is in this sense that I
understand the conclusion reached by the Court in paragraph 85 of the
Judgment when it stated that:
"the lawfulness of the acts which the reservation to the Canadian
declaration seeks to exclude from the jurisdiction of the Court has no
relevance for the interpretation of the terms of that reservation . . .".
In this connection, I consider the Court's statement in paragraph 55 of the
Judgment to be more appropriate to this issue that:
"There is a fundamental distinction between the acceptance by a State of the
Court's jurisdiction and the compatibility of particular [p 488] acts with
international law. The former requires consent. The latter question can only
be reached when the Court deals with the merits, after having established
its jurisdiction and having heard full legal argument by both parties."
Nor, in my view, could the decisive issue be whether various treaty regimes
govern the subject-matter of the reservation, or whether the interpretation
of the declaration should be governed by the regime established by the
Vienna Convention on the Law of Treaties, or the application of general
principles of international law, such as the principle that the exception to
a rule should not negate the principal rule. As pointed out in the Judgment,
these legal regimes and principles cannot be applied in an identical manner
to an optional clause declaration, as that is sui generis and governed by
its own rules. Were it otherwise, not only would the limit of a State's
consent expressed in its declaration not be respected or not seen to be
respected contrary to the Statute but also the procedural distinction
between the jurisdictional and merits phases of a case would be
extinguished, with all its implications.
7. However, be that as it may, the Court's finding should in no way be
viewed, let alone interpreted, as a licence for a State to make a
declaration or reservation under the optional clause system which is
inconsistent with the Statute. Rather, the Court's finding should be
interpreted as an affirmation and a restatement of the principle that
reservations limiting the scope of compulsory jurisdiction is permissible
under the optional clause system and that the Court cannot extend its
jurisdiction beyond the scope of the consent given by the declarant State.
Nor should the finding be regarded as an abdication of the Court's judicial
function. As the Judgment confirms, the Court reserves its inherent
jurisdiction in accordance with Article 36, paragraph 6, of the Statute, to
decide in the event of a dispute whether jurisdiction has been conferred in
a matter submitted to it. It is also within the power of the Court to decide
that a reservation has been invoked in bad faith, and to reject the view of
the State in question.
(Signed) Abdul G. KOROMA.
[p 489]
SEPARATE OPINION OF JUDGE KOOIJMANS
Judgment bears testimony to inherent weakness of optional clause system
Reservations to declarations of acceptance of compulsory jurisdiction under
Article 36, paragraph 2, of the Statute Making of such reservations never
been controversial if not inconsistent with the Statute itself Court's
finding that Canada's reservation is valid correct interpretation of the law
Canada's reservation made to prevent the Court from scrutinizing the
legality of an action it intended to undertake Consistency of such policy
with expressed preference for judicial settlement Free choice of means and
acceptance of compulsory jurisdiction Optional Clause system an integral
and essential part of the Statute. Role of the Court in this respect
Compulsory jurisdiction not just another method of settling legal disputes.
1. I have voted in favour of the Court's finding that it has no
jurisdiction to adjudicate upon the dispute submitted by Spain since this
dispute comes within the terms of the reservation contained in paragraph 2
(d) of the Canadian declaration of acceptance of the Court's compulsory
jurisdiction of 10 May 1994.1 have done so, however, with a heavy heart,
since I am fully aware that this Judgment although undoubtedly in
conformity with international law as it presently stands bears testimony
to the inherent weakness of the system of compulsory jurisdiction under
Article 36, paragraph 2, of the Statute, also called the optional clause
system, as it has developed in the course of time.
2. Although this system was established in 1920 and reconfirmed in 1945 as
an expression of the idea that the settlement of international legal
disputes by adjudication is desirable and should be sought if other methods
of dispute-settlement have failed or are unable to proffer a solution, it
hardly has come near to that ideal in actual practice.
3. It is ironical indeed that the League of Nations, in its efforts to
encourage acceptance of the Court's jurisdiction, endorsed the making of
reservations to such acceptance (although Article 36, paragraph 3, of the
Statute does not formally authorize a declarant State to make such
res-ervations), but by so doing weakened the system it tried to strengthen.
The use of reservations became so widespread and so varied that Professor
Humphrey Waldock in 1955 warned that:
"the attitude of States towards the optional clause may degenerate [p 490]
into one of pure opportunism, declarations being made, cancelled and varied
as the immediate interests of States may dictate"FN1.
------------------------------------------------------------------------------------------------------------
FN1
C. H. M. Waldock, "Decline of the Optional Clause", British Year Book of
International Law, Vol. 32, 1955-1956, p. 283.
------------------------------------------------------------------------------------------------------------
4. The right of a State to make reservations to its declaration of
acceptance has long been recognized; in point of fact it never has been even
controversial. This is confirmed by the fact that it was not even
considered necessary to incorporate it explicitly in the Statute when in
1945 the present Court was established. The San Francisco Conference
Subcommittee D to Committee IV/1 stated in its Report of 31 May 1945:
"As is well known, the article (Article 36 of the Statute) has consistently
been interpreted in the past as allowing states accepting the jurisdiction
of the Court to subject their declarations to reservations. The Subcommittee
has considered such interpretation as being henceforth established. It has
therefore been considered unnecessary to modify paragraph 3 in order to make
express reference to the right of the states to make such reservations."FN2
------------------------------------------------------------------------------------------------------------
FN2
UNCIO, XIII, p. 559, doc. 702.
------------------------------------------------------------------------------------------------------------
5. Since that time controversy only has arisen with regard to the question
whether reservations inconsistent with the Statute itself are admissible.
Although the Court itself never took position with regard to that question,
both in the Norwegian Loans case and the Interhandel case the so-called
"automatic reservation" and its validity under the Statute was a matter for
lively debate. According to Judge Lauterpacht and some of his colleagues,
Article 36, paragraph 6, of the Statute explicitly authorized the Court and
not the declarant State to decide whether in the event of a dispute the
Court has jurisdiction. A reservation in which the declarant State reserves
for itself the right to determine whether a dispute is essentially within
its national jurisdiction is "contrary to an express provision" of the
Statute and therefore must be deemed invalid.
6. In his famous separate opinion in the Norwegian Loans case Judge
Lauterpacht did not doubt, however, for one moment the right of a State to
make reservations which cannot be deemed to be contrary to the Statute. He
explicitly stated:
"In accepting the jurisdiction of the Court Governments are free to limit
its jurisdiction in a drastic manner. As a result there may be little left
in the Acceptance which is subject to the jurisdiction of the Court. This
the Governments, as trustees of the interests entrusted to them, are fully
entitled to do."FN3
------------------------------------------------------------------------------------------------------------
FN3
Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 46.
------------------------------------------------------------------------------------------------------------
[p 491]
A similar viewpoint was taken by the Court in the case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) when it stated:
"Declarations of acceptance of the compulsory jurisdiction of the Court are
facultative, unilateral engagements, that States are absolutely free to
make or not to make. In making the declaration a State is equally free
either to do so unconditionally and without limit of time for its duration,
or to qualify it with conditions or reservations."FN4 (Quoted in paragraph
54 of the present Judgment.)
------------------------------------------------------------------------------------------------------------
FN4
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment, I. C.J.
Reports 1984, p. 418, para. 59.
------------------------------------------------------------------------------------------------------------
7. Nor have I found in doctrine a tendency to limit the legality which is
something entirely different from the desirability of making reservations
to declarations of acceptance (with the exception of reservations
encroaching upon the Statute). I therefore cannot but share the view of the
Court, expressed in paragraph 54 of the Judgment, that "[t]he fact that a
State may lack confidence as to the compatibility of certain of its actions
with international law does not operate as an exception to the principle of
consent to the jurisdiction of the Court and the freedom to enter
reservations". The Court has to apply the law as it is and I have not found
a scrap of evidence in State practice that contradicts the Court's view.
8. Yet, I strongly feel that things should not be left at that. In the
present case Canada has modified its declaration of acceptance and
introduced a new reservation precisely to prevent the Court from
scrutinizing the legality of an action it intended to undertake. In spite of
the wide range of reservations made, it was only seldom that a State
modified its declaration in anticipation of a certain dispute reaching the
Court. MerrillsFN5 mentions three examples: in 1954 Australia modified its
declaration in view of a dispute with Japan over pearl fisheries, in 1955
the United Kingdom entered a reservation to prevent proceedings in respect
of the Buraini arbitration and in 1970 Canada added a reservation regarding
the enactment of the Arctic Waters Pollution Prevention Act. To this list of
examples may now be added the 1994 Canadian reservation.
---------------------------------------------------------------------------------------------------------------------
FN5
J. G. Merrills, "The Optional Clause Today", British Year Book of
International Law, Vol. 50, 1979, p. 94.
---------------------------------------------------------------------------------------------------------------------
9. The doubt, or as the Court puts it the lack of confidence about the
compatibility of intended action with international law which led to the
making of a new reservation, was well expressed by the then Prime Minister
of Canada in explanation of the reservation made with regard to the Arctic
Waters Pollution Prevention Act. On 8 April 1970 he stated in the House of
Commons:[p 492]
"Canada is not prepared however to engage in litigation with other states
concerning vital issues where the law is either inadequate or non-existent
and thus does not provide a firm basis for judicial decision. We have
therefore submitted this new reservation . . . relating to those areas of
the law of the sea which are undeveloped or inadequate."FN6
------------------------------------------------------------------------------------------------------------
FN6
Quoted in R. St. J. Macdonald, "The New Canadian Declaration of Acceptance
of the Compulsory Jurisdiction of the International Court of Justice",
Canadian Yearbook of International Law, Vol. 8, 1970, p. 3.
------------------------------------------------------------------------------------------------------------
A similar reasoning seems to lie at the basis of the Canadian 1994
reservation.
10. As is clear from this statement, a State taking unilateral action on a
matter where international law apparently is in a state of flux is well
aware of the probability that such actions may lead to disputes with other
States. It may prefer to settle such disputes by other means than judicial
settlement because it is convinced that such other means may lead to a
resolution of the issue which in the end will be more satisfactory for all
States concerned. Under present international law States are perfectly
entitled to take such a position. In paragraph 56 of the Judgment the Court
refers in this respect to the principle of the free choice of means
contained in Article 33 of the Charter.
11. In the present case, however, Canada had made its choice and had made a
commitment to a particular method of dispute settlement by accepting the
compulsory jurisdiction of the Court. It is true that it had explicitly
stipulated in its declaration of 1985 that it could at any time terminate
its acceptance of the Court's jurisdiction or add to, amend or withdraw the
reservations contained in its declaration and that was exactly what Canada
did when it deposited its new declaration on 10 May 1994.
12. A State which is free to terminate its acceptance of the Court's
compulsory jurisdiction at any time by the same token is legally free to
limit the scope of that acceptance. The question which in my opinion must be
put has, therefore, no legal purport but seems nevertheless legitimate. The
question which presents itself in the present case (but not for the first
time) is: how far can a State go in strengthening the system of compulsory
jurisdiction by depositing a declaration of acceptance while at the same
time making reservations which impair its effectiveness?
13. The optional clause system was set up as a compromise between those
States that favoured a comprehensive system of compulsory judicial
settlement and (a minority of) other States which felt that this was not
(yet) desirable and therefore not achievable. A State which has accepted the
compulsory jurisdiction by depositing a declaration of acceptance indicates
thereby that it considers judicial settlement to be the most appropriate
method of third party settlement for legal disputes if [p 493] such disputes
cannot be solved amicably. It may subject this acceptance to certain
conditions and reservations thereby moving into the direction of those
States which found a comprehensive system a bridge too far. By limiting the
scope of the Court's jurisdiction in an excessive way, the credibility of
the system itself is affected; as a result the declarant State's sincerity
in supporting the idea of compulsory jurisdiction is implicitly attenuated
as well.
14. In the past this attitude of certain States which limited the Court's
jurisdiction in a drastic way has led to laments similar to that of
Professor Waldock quoted earlier. A completely different but nevertheless
comparable problem presents itself, however, when a State accepts the
Court's jurisdiction in a rather generous way, but at a given moment by
modifying its declaration deprives the Court of jurisdiction over an
anticipated dispute. The confidence in the judicial system and the Court
exemplified by the willingness to submit a wide range of conceivable but not
imminent legal disputes to judicial settlement is to a certain extent
neutralized by the exemption from the Court's jurisdiction of an anticipated
and therefore probably imminent dispute.
15. The optional clause system is a fragile system. The high expectations
of the founders of the Permanent Court of International Justice have not
come true. The prospects of a comprehensive system of compulsory
jurisdiction reached their peak in the 1930s but at present it may at best
be called a beckoning ideal. Nevertheless, an increasing number of States
are finding their way to the Court and also the number of States which have
deposited a declaration of acceptance is slowly but steadily increasing.
Under these circumstances it would in my opinion not have been beyond the
Court's mandate to draw attention to the fragility of the system of
compulsory jurisdiction which in the form of the optional clause system is
an integral and essential part of the Statute and to the risks to which it
is exposed. This all the more so since in its recent Judgment in the case
concerning the Land and Maritime Boundary between Cameroon and Nigeria,
Preliminary Objections, Judgment, I.C.J. Reports 1998, the Court emphasized
be it on a strictly legal basis the importance of that system.
16. It may be readily admitted that the system of compulsory adjudication
is not the key to a peaceful and well-organized world which it was
considered to be by many States in 1922 and 1945. Nevertheless its crucial
role in a system of dispute settlement and in a world-order in general
should by no means be underrated. In this respect it may be appropriate to
recall what was said by Professor Bin Cheng during the Conference of the
International Law Association held in Tokyo in 1964 in response to a
colleague who had said that there are methods of settlement of international
disputes which are probably just as good as international adjudication.
Maybe Professor Cheng's statement may sound too categorical; it nevertheless
contains elements which in my [p 494]opinion consider full consideration,
maybe today even more than was the case in 1964.
17. On that occasion Professor Cheng said:
"The acceptance of the compulsory jurisdiction of international tribunals is
not only a question of procedure, but is also one of substance. It changes
in fact the nature of the law which governs international relations. We may
divide international law into ... different grades. First of all there is
international law on the auto-interpretation level. That is when States
have not accepted the duty to go before an international tribunal. In such a
situation when a dispute arises each party is entitled to maintain its own
interpretation of the law."
18. He went on to say:
"But when a State accepts in advance the duty to submit to international
adjudication, it is no longer able to act in that way. It must always behave
in such manner that, if brought before the court, its conduct stands at
least a fair chance of being upheld. In other words, where a State accepts
in advance the duty to go to the International Court or to go to
arbitration, the international law that is applicable to it becomes
different in nature. One may call this law justiciable or arbitrable law. It
is very much superior in quality to the auto-interpretation type of
international law."
And Professor Cheng concluded:
"compulsory adjudication is not just another method of settling
international disputes. It raises the international law applicable between
the States concerned from the auto-interpretation to the justiciable
grade"FN7.
------------------------------------------------------------------------------------------------------------
FN7
International Law Association, Report of the Fifty-First Conference, Tokyo,
1964, pp. 43-44.
------------------------------------------------------------------------------------------------------------
19. This view seems to be shared by another learned author who drew
attention to the fact that the
"prevalence of non-judicial settlement in the domestic legal system may
result in part from the availability of judicial settlement; each party
knows that the cost of its failure to settle may be the other party's
recourse to the courts, with all the uncertainty that entails . .. Indeed,
the prospect of eventual judicial decision necessarily affects the way the
parties think about the law; inevitably, they will bargain [p 495] and
assess the value of various settlement proposals in terms of how they think
a court will decide."FN8
------------------------------------------------------------------------------------------------------------
FN8
Richard Bilder, "International Dispute Settlement and the Role of
International Adjudication", in L. Fisler Damrosch (ed.), The International
Court of Justice at a Cross-roads, 1987, pp. 159-160.
------------------------------------------------------------------------------------------------------------
20. I certainly do not contend that what is contained in the above
quotations is fully reflected in the optional clause system as it has
developed until today. Nevertheless I strongly feel that the gist of that
content, viz., that compulsory jurisdiction is more than just another method
of settling legal disputes, should function as a point of reference for the
Court's evaluation of the optional clause system. Since the Court's Judgment
inevitable as it is does not bring us any nearer to the qualitative
criteria referred to here, I have voted for the finding of the Court with
dismay; I found it necessary to give expression to my disquiet which is in
no way restricted to the present case.
(Signed) P. H. KOOIJMANS.
[p 496]
DISSENTING OPINION OF VICE-PRESIDENT WEERAMANTRY
Table of Contents
|
Paragraphs |
|
|
Issues
Raised in This Case
|
1-6 |
|
|
Preliminary Observations
|
7-16 |
|
|
Limitations on Freedom of States to Make any Reservation They
Please
|
17-22 |
|
|
Categorization of Activity Which Falls within Both General
Submission to Jurisdiction and Reservations Clause
|
23-36 |
|
|
Interpretation of Reservations Clause in Conformity with Legal
Meaning of Terms Used
|
37-42 |
|
|
Interpretation of Reservations Clauses within Context of Entire
Declaration
|
43-52 |
|
|
Effect
of Court's Independent Interpretation on Integrity of Consensual
System |
53-54 |
|
|
Philosophy Underlying Creation of Optional Clause
|
55-70 |
|
|
Conclusion
|
71-73 |
[p 497]
Issues Raised in This Case
1. The issues raised in this case offer an opportunity for an examination
of some important aspects of the optional clause, the foundation of the
Court's contentious jurisdiction.
2. The Court is faced in this case with the difficult task of determining
whether the issues raised by the assertions of Spain are to be considered as
falling within reservation (d) of the Canadian declaration, or under the
general part of that declaration which submits to the Court's jurisdiction
"all disputes arising after the present declaration with regard to
situations or facts subsequent to this declaration".
3. Reservation (d) takes away from the Court's jurisdiction
"disputes arising out of or concerning conservation and management measures
taken by Canada with respect to vessels fishing in the NAFO Regulatory Area,
as defined in the Convention on Future Multilateral Co-operation in the
Northwest Atlantic Fisheries, 1978, and the enforcement of such measures".
4. Spain's contentions are that the alleged actions of Canada, which
occurred on the high seas outside Canada's exclusive economic zone,
violated fundamental principles of international law relating, inter alia,
to the freedom of the high seas, the sovereign rights of Spain, safety at
sea, and the prohibition of the use of force, which last is a principle
enshrined in the United Nations Charter. Canada contends that its actions
fall within the ambit of reservation (d), and are thus not subject to
scrutiny by the Court.
5. The Court's decision in this case will therefore have the effect of
determining whether alleged factual situations, which may amount to breaches
of international law extending even to Charter violations, are covered by
the general portion of a declaration and hence justiciable, or whether they
are rendered non-justiciable by the fact that the situation out of which the
claim arises takes its origin in an activity specified in a reservation
clause.
6. This is a question fundamentally affecting the entire scheme of optional
clause jurisdiction, and is thus one which merits close attention from both
a procedural and a conceptual point of view.
Preliminary Observations
7. Before examining these questions I would like to make a few preliminary
observations regarding some of the arguments that were urged before the
Court.
8. It is to be noted, in the first place, that, though Canada acted as it
did in terms of certain Canadian legislation, the Court can determine the [p
498] issues before it at the present stage of these proceedings without
needing to pronounce upon the compatibility of Canada's legislation with
international law. Even the more limited question of the non-opposability
of Canadian legislation to Spain is not essential to the determination of
the issues before the Court at this stage. This opinion does not therefore
deal with this question.
9. Secondly, this opinion proceeds on the basis that the Canadian
reservations clause is a perfectly valid clause, which Canada was well
within its rights in introducing into its declaration. The question before
the Court is the interpretation of that valid reservation. Problems arise in
relation to the extent to which the applicability of that clause can be
extended. This aspect is more fully dealt with later in this opinion.
10. There have been cases in the Court's jurisprudence in which the Court
has been called upon to examine the scope of a reservation and its impact
upon the entire declarationFN1. There can indeed be reservations which are
contrary to the very purpose of the optional clause, and thus invalidate the
entire clause. However, the Canadian reservation is far removed from this
category, for a reservation relating to conservation measures is one which
Canada was well entitled to insert in its declaration. The Court's task in
the present case is to interpret that reservation in accordance with
international law and the applicable canons of legal interpretation. It must
also be viewed in the context of the totality of the declaration of which it
forms a constituent part.
---------------------------------------------------------------------------------------------------------------------
FN1
See Certain Norwegian Loans, I.C.J. Reports 1957, p. 9; Right of Passage
over Indian Territory, Preliminary Objections, I.C.J. Reports 1957, p. 125;
and Interhandel, Preliminary Objections, I.C.J. Reports 1959, p. 6.
---------------------------------------------------------------------------------------------------------------------
11. Thirdly, this opinion proceeds entirely upon the basis that Canada
undoubtedly acted with the object of conserving maritime resources a
purpose to which modern international law attaches the greatest importance.
This objective is inextricably linked with such seminal principles as the
common heritage of mankind and the rights of posterity, which need to be
strengthened as international law progresses into the next century. However,
it goes without saying that such action as may be taken for these
pre-eminently laudable purposes must be taken in compliance with legality,
and not by means conflicting with basic principles of international law.
The Court cannot, at this stage, reach any conclusion as to whether the
action taken by Canada conflicts or not with such basic principles. The
Spanish assertion to this effect remains completely unproven at this stage.
12. Fourthly, it is necessary to stress that the question before the Court
at this preliminary stage is whether, even on the assumption that all of
Spain's allegations will eventually be substantiated, the Court can still
reach the conclusion that it has no jurisdiction in consequence of the
reservations clause. These allegations include the wrongful use of force, [p
499] the violation of the principle of the freedom of the seas, the
violation of Spanish sovereignty, the endangering of the safety of its
vessel and crew, the unilateral use of coercive measures, the adoption of
harassing manuvres by patrol boats, and a wrongful act of arrest of its
national ship. It is only if the Court can pronounce that, granted the
correctness of all these allegations, there is still a lack of Court
jurisdiction, that Spain's Application can be dismissed on the preliminary
objection of want of jurisdiction. If not, the Court would be constrained to
hold, in accordance with Article 79, paragraph 7, of the Rules of Court,
that the objection does not possess an exclusively preliminary character.
13. It is true the Court's jurisdiction is consensual. It is true that
States alone determine whether they will or will not submit to the Court's
jurisdiction, and that it is entirely within their power, through
reservations, to carve out exceptions to the area of their submissionFN2. It
is true also that the jurisprudence of the Court has laid down that
reservations clauses cannot be framed so as to undermine the declaration of
which they form a part. These are well-beaten trails in international law.
The present case requires us to travel beyond the beaten track in order to
examine the reach of a valid reservations clause, and the balance that must
be struck between its operation and that of the general portion of the
declaration.
---------------------------------------------------------------------------------------------------------------------
FN2
The idea of reservations was accepted in principle as far back as 1924, and
was so well established in 1945 that it was considered unnecessary at the
San Francisco Conference to make express provision for it. (Shabtai Rosenne,
The Law and Practice of the International Court, 1920-1996, 1997, Vol. II,
pp. 767-768.)
---------------------------------------------------------------------------------------------------------------------
14. In order to determine the limits of the reach of a restrictive clause,
we need to examine a variety of legal questions. How does one categorize a
given activity which, while falling within the reservations clause, also
constitutes a violation of basic international obligations which reach far
beyond the limited compass of the reservations clause? Are the words in such
clauses to be given a meaning consistent with international law, or are they
to be given an unrestricted meaning, irrespective of whether the activities
they cover conflict with international law or not? Would any measures,
however illegal, be brought within the reservation merely because they
purport to be taken within the area of activity covered by the exception?
15. A further consideration to be borne in mind is the possible impact upon
States of giving to a reservations clause a narrower construction than the
full literal meaning it would bear had it existed by itself, and was being
construed as a self-contained document. Would such a construc-tion have an
adverse impact on the willingness of States to consent to the jurisdiction
of the Court, and thus constitute a threat to the viability of the optional
clause system? [p 500]
16. These questions are of great consequence to the entirety of the Court's
judicial activities, having regard to the fact that a substantial number of
declarations by consenting States do in fact incorporate reservations
couched in a variety of forms. They also touch the core of the concept of
submission to the Court's jurisdiction, and therefore warrant some extended
consideration of the nature of that jurisdiction and the hopes attendant on
its creation.
Limitations on Freedom of States to Make Any Reservations They Please
17. Once a State has entered the consensual system, submission to the basic
rules of international law inevitably follows, and there can be no
contracting out of the applicability of those rules. Once within the
system, the rules of international law take effect, and apply to the
entirety of the matter before the Court, irrespective of State approval. It
has been argued before us that the greater power of total abstention or
total withdrawal always includes the less. That proposition is
unimpeachable, but at the same time can make no difference to the dominance
of international law within the system once it is entered.
18. Though, regrettably, there are still many areas of international
activity which are not reached by the writ of international law, one area
where legality rules is within the consensual system.
19. It scarcely needs emphasis that the basic principles of international
law permeate the entirety of that limited domain, and that the natural
freedom to make reservations to the acceptance of that jurisdiction cannot
extend to excluding the operation within it of the fundamentals of
international law. The preservation of the integrity of that legal
territory, within the limits in which it functions, imposes upon those who
enter it certain constraints in the best interests of all users, and in
order to preserve the inviolability of international law.
20. Illustrations of the proposition that, once within the system, the
declarant State must submit to the rules and procedures prevalent therein,
are not difficult to find. Examples include the undoubted principle that it
is for the Court, and not for litigating States, to decide on its
jurisdiction. That competence de la competence is a matter exclusively for
the Court to determine is a principle which is well entrenched in the
Court's Statute (Art. 36 (6)) and jurisprudenceFN3. Indeed, the principle
that an international tribunal is the master of its own jurisdiction can be
described as a [p 501] fundamental principle of international lawFN4, and as
the Court observed in Nottebohm, "Paragraph 6 of Article 36 merely adopted,
in respect of the Court, a rule consistently accepted by general
international law in the matter of international arbitration."FN5
---------------------------------------------------------------------------------------------------------------------
FN3
See, for example, Nottebohm, Preliminary Objection, I.C.J. Reports 1953, p.
119. 72
FN4 See Rosenne, op. cit., pp. 846-852.
FN5 I.C.J. Reports 1953, p. 119.
---------------------------------------------------------------------------------------------------------------------
21. Likewise, it is the Court that determines its rules of procedure, and
not the States that appear before it. Parties coming before the Court must
accept the Court's rules of procedure and must submit to them, for the act
of submission to the Court's jurisdiction implies a submission to the
Court's procedural rules, and to the principle that the Court, and not the
parties, is the master of its own procedure.
22. So, also, any matter that arises for adjudication within optional clause
territory would be governed strictly by the rules of the United Nations
Charter and the Statute of the Court. One cannot contract out of them by
reservations, however framed. The basic principles of inter-national law
hold sway within this haven of legality, and cannot be displaced at the
wish of the consenting State.
Categorization of Activity Which Falls within Both General Submission and
Reservations Clause
23. A central question arising in this case is whether an activity
originating in an area reserved from the jurisdiction of the Court can run
its course into violations of Charter principles or fundamental principles
of international law, free of judicial scrutiny merely because it originated
in the excepted area. For example, are incursions into another State's
territory to be free of judicial scrutiny merely because the initial action
originated in a measure of conservation? Are acts of violence against a
vessel of a sovereign State on the high seas free of judicial scrutiny
merely because they originated in enforcement measures? Is there rather a
point at which, upon a reasonable construction of the reservations clause,
its applicability ceases or begins to be shrouded in doubt, and the action
in question moves into the territory of the general part of the declaration?
Would it be a more reasonable interpretation of such a clause that it
precludes scrutiny of activities within the ambit of the exempted area, but
not transgressions extending well beyond its natural scope? These are
important questions pointedly raised by this case, which go to the core of
the concept of submission to the Court's jurisdiction. [p 502]
24. Where, as in this case, there is a general submission to the Court's
jurisdiction, followed by particular exceptions, the general part states the
principle underlying the declaration, namely, the principle of submission.
That general part sets the framework within which the Court's jurisdic-tion
is accepted. It constitutes, inter alia, a submission to the general corpus
of international law and, in particular, to its ruling principles. The
reservations constitute exceptions in this case ratione materiae to that
jurisdiction. They do not constitute exceptions to the ruling principles of
the corpus of international law.
25. If, then, a State should assert that another State has sought to impose
upon the applicant State a submission to the unilateral exercise of its
penal jurisdiction on the high seas, to violate the basic principle of
freedom of the high seas, to violate the peremptory norm of international
law proscribing the use of force, to violate thereby a fundamental
principle of the United Nations Charter, to violate the well-established
principle of the complainant State's exclusive sovereignty on the high seas
over vessels carrying its national flag, to endanger the lives of its seamen
by a violation of universally accepted conventions relating to the safety of
lives at seas can all these alleged fundamental violations of
international law, which would engage the jurisdiction of the Court under
the general principle of submission, be swept away by the mere assertion
that all these were done as a measure of conservation of fisheries
resources? Reservations do not constitute a vanishing point of legality
within the consensual system.
26. It is true it is entirely within the Court's discretion to determine
whether a given cause of action must be placed within the receptacle of the
general principle or of the particular exception. That discretion must,
however, be exercised and not abdicated merely owing to the presence of the
exception. Moreover, when it is exercised, it must be exercised with a due
sense of balance regarding the claim of each receptacle to contain it.
27. In illustration of this sense of proportion that must be maintained
between the two repositories, and of the primary values underlying a choice
between them, Spain offered the Court a telling example of the exclusion of
commercial disputes under a hypothetical reservation. Could any application
concerning the commercial exploitation of children be excluded under the
reservation, on the argument that this constituted "a commercial issue"FN6?
Or, again, could the Court refrain from asserting its jurisdiction regarding
the bombing or torpedoing of a fishing vessel on the basis that it related
to a measure of fisheries conservation?
---------------------------------------------------------------------------------------------------------------------
FN6
CR 98/9, p. 52, para. 35 [translation by the Registry].
---------------------------------------------------------------------------------------------------------------------
28. A comparable situation can be envisaged which even infringes upon the
territorial integrity of a sovereign State. For example, legal [p 503]
action within one country to protect a herd of elephants that straddles
national boundaries cannot obviously be pursued into the territory of
another. If wildlife rangers should, in protection of the elephants, move
into the neighbouring State's territory and use force against the nationals
of that State, this action would clearly travel far beyond the confines of a
reservations clause relating to conservation measures for the protection of
wildlife. So, also, would a move to jam all radio frequencies to poaching
fishing vessels. This may well be described as an enforcement measure as it
cripples the operation of the poaching vessel. Yet, at the same time, it
would breach a series of State obligations in relation to safety at sea, as
well as obligations under various treaties and conventions.
29. To hold that a breach of such basic obligations is removed from the
Court's jurisdiction by the reservation would be to denude the Court of an
essential part of the basic jurisdiction conferred upon it by the
declaration of the States concerned.
30. To approach this problem in another way, if a reservations clause should
expressly state that any act which originates as a conservation measure is
free of Court jurisdiction, even though it amounts to an unauthorized use
of force against a sovereign State, one can be in little doubt that such a
clause would be held to be incompatible with the declaration. Quite
clearly, a result which cannot be achieved by express declaration, cannot
be achieved by judicial interpretation of terms which are less than express,
and I do not think a reservations clause can be so construed as to achieve
such an unacceptable result. To borrow the language Sir Hersch Lauterpacht
used in Certain Norwegian Loans, regarding another reservations clauseFN7,
this result would be "both novel and, if accepted, subversive of
international law"FN8.
---------------------------------------------------------------------------------------------------------------------
FN7
One which excluded from the jurisdiction of the Court "matters which are
essentially within the national jurisdiction, as understood by the
Government of the French Republic".
FN8 Separate opinion, I.C.J. Reports 1957, p. 37.
---------------------------------------------------------------------------------------------------------------------
31. There may in some circumstances be difficulty in determining the
classification of a particular piece of conduct which, while literally
falling within a reservations clause, also amounts to such a violation of
basic international law principles as to fall within the general consensual
jurisdiction granted to the Court. However, there are cases which clearly
fall within one category or the other, such as a violation of the peremptory
norm against aggression. In such cases, the result must follow inexorably
that parties who have consented to a regime of legality cannot opt out of
the very foundations of that regime of legality to which they have
consented. In my view, the present case is one such, which falls clearly [p
504] within the ambit of the general submission rather than the particular
reservation.
32. Speaking in general terms, and not in the context of this particular
case, a State may not, therefore, be able, under cover of a reservation
relating to a specified kind of activity, to exempt itself from the scrutiny
of basic illegalities that occur within that area of action.
33. A contrary view would mean that if any dispute brought before the Court
has even a slender connection with the subject-matter of a reservation, the
Court could deny itself (and, even more importantly, the complainant State)
of jurisdiction. It is of the nature of every dispute that it has multiple
implications and, if the Court were to take the view that a connection,
however slender, with such a reservation would deprive it of jurisdiction,
the Court would greatly attenuate the jurisdiction conferred upon it by the
general part of the declaration.
34. In this context, it is useful to recall the observations of this Court
in United States Diplomatic and Consular Staff in Tehran, where the Court
remarked that:
"no provision of the Statute or Rules contemplates that the Court should
decline to take cognizance of one aspect of a dispute merely because that
dispute has other aspects, however important"FN9.
------------------------------------------------------------------------------------------------------------
FN9
I.C.J. Reports 1980, p. 19, para. 36.
------------------------------------------------------------------------------------------------------------
and that
"if the Court were, contrary to its settled jurisprudence, to adopt such a
view, it would impose a far-reaching and unwarranted restriction upon the
role of the Court in peaceful solution of international disputes"FN10.
------------------------------------------------------------------------------------------------------------
FN10
Ibid., p. 20, para. 37.
------------------------------------------------------------------------------------------------------------
35. The Court will always have the discretion to determine whether a
particular situation falls within the reservations clause or the general
submission. "Automatic" reservations, which leave no discretion to the
Court, but take effect of their own motion, would be contrary to the
principle that the Court is the ultimate arbiter of this question. To quote
a distinguished former President of this Court, writing extrajudicially:
"The arguments that an automatic reservation is void are compelling
whenever it is indeed the case that they operate in such a way as to leave
no scintilla of jurisdiction to the Court."FN11
------------------------------------------------------------------------------------------------------------
FN11
R. Y. Jennings, "Recent Cases on 'Automatic' Reservations to the Optional Clause",International and Comparative Law Quarterly, Vol. 7, 1958, p. 349,
at p. 361.
------------------------------------------------------------------------------------------------------------
36. For these reasons, I do not think actions originating from an exempted
area of activity can be considered to be still subsumed under [p 505] the
head of the excepted activity when it has far transcended the reasonable
limits of that activity. Whether it has transcended those limits can only be
decided when the facts are known, but I cannot subscribe to the proposition
that, before those facts are known, the Court can pronounce that it has no
jurisdiction, merely because the actions complained of originated under that
head.
Interpretation of Reservations Clause in Conformity with Legal Meaning of
Terms Used
37. There is a presumption of good faith in all State actions and, hence, in
regard to the declarations which a State may make under Article 36.
Consequently, if one were interpreting the intention of Canada in making
this declaration, one would attribute to Canada the intention of using terms
in conformity with their legal meaning.
38. Another approach to the question is to apply the usual rule of
interpretation that, in interpreting a legal document, one must construe its
terms in accordance with legality rather than in violation thereof. The
conservation and enforcement measures which Canada contemplated must
therefore be interpreted to mean such measures as are in accordance with the
law, and not measures which are in violation thereof. I cite in this
connection an observation from Oppenheim's International Law which sets out
the law applicable to the interpretation of treaties in a manner no doubt
equally applicable to the interpretation of other international legal
documents:
"Account is taken of any relevant rules of international law not only as
constituting the background against which the treaty's provisions must be
viewed, but in the presumption that the parties intend something not
inconsistent with the generally recognised principles of international law,
or with previous treaty obligations towards third states."FN12
------------------------------------------------------------------------------------------------------------
FN12
R. Y. Jennings and A. Watts (eds.), 9th ed., 1992, p. 1275.
------------------------------------------------------------------------------------------------------------
Even more explicitly, and in reference to texts emanating from Governments,
this Court observed in Right of Passage over Indian Territory:
"It is a rule of interpretation that a text emanating from a Government
must, in principle, be interpreted as producing and as intended to produce
effects in accordance with existing law and not in violation of it."FN13
------------------------------------------------------------------------------------------------------------
FN13
Preliminary Objections, I.C.J. Reports 1957, p. 142.
------------------------------------------------------------------------------------------------------------
39. One would thus, even without the benefit of treaty definitions, tend [p
506] to construe "conservation and management measures" as those taken in
accordance with law. Reference may usefully be made in this connection to
such treaty definitions as that contained in Article 1 (1) (b) of the United
Nations Agreement on the Conservation and Management of Straddling Fish
Stocks of 1995, which expressly defines the expression "conservation and
management measures" as meaning
"measures to conserve and manage one or more species of living marine
resources that are adopted and applied consistent with the relevant rules of
international law as reflected in the Convention and this Agreement"
(emphasis added).
Such definitions reinforce the natural conclusion that when expressions such
as "conservation and management measures" occur in a legal document, they
must be given a meaning which is consistent with legality. Such expressions
in other publications, such as a scientific or environ-mental journal, may
well carry other connotations but, in a solemn legal document emanating from
a State, they can carry only such a meaning as is consistent with law.
40. If legality be a requisite of the meaning of the expression, at least a
prima facie case exists that such assertions as breach of essential parts of
the modern law of the sea (such as the freedom of fishing and navigation,
and the principle of exclusive State jurisdiction over ships flying the
national flag), and of the peremptory norm of international law against the
threat or use of force, are assertions which, if substantiated, take this
case out of the ambit of the reservations clause. This is not to speak of
assertions of a series of specific acts committed outside Canada's 200-mile
zone, including the use of water cannon and the cutting of trawl net cables
which, according to Spain, have had the effect of endangering the safety of
life at sea in violation of international regulations and covenants. These
Canadian actions were, moreover, the subject of a Note Verbale by the
Delegation of the European Commission in Canada, protesting, inter alia, at
the arrest of a vessel in international waters by a State other than the
flag State an act which they alleged is illegal, both under the NAFO
Convention and under customary international law, and "goes far beyond the
question of fisheries conservation"FN14.
---------------------------------------------------------------------------------------------------------------------
FN14
Note Verbale of 10 March 1995, Memorial of Spain, Ann. 11.
---------------------------------------------------------------------------------------------------------------------
41. I stress that there is no finding as yet on any of these matters. Yet,
so long as the possibility is open that they may be proved, it seems to me
that the Court cannot hold that it is manifestly without jurisdiction. That
situation may well be reached when the facts are known. Then and only [p
507] then would the Court be able to pronounce that it lacks jurisdiction to
hear the dispute before it. Until such time, the Court must hold itself
available to determine the dispute if the circumstances which bring it into
operation are satisfied.
42. The foregoing considerations make it clear that a proper construction
of the reservation relates it to legal and not illegal actions taken in
pursuance of conservation and enforcement measures.
Interpretation of Reservations Clauses within Context of Entire Declaration
43. The problem before the Court involves the balancing of two portions of
one integral document. The mistake must be avoided of concentrating on the
reservations clause, as though it contains the only words under
construction. The Court is faced with the task of construing the entire
document, under which Canada:
"accepts as compulsory ipso facto and without special convention, on
condition of reciprocity, the jurisdiction of the International Court of
Justice, in conformity with paragraph 2 of Article 36 of the Statute of the
Court, until such time as notice may be given to terminate the acceptance,
over all disputes arising after the present declaration with regard to
situations or facts subsequent to this declaration, other than:
(a) disputes in regard to which the parties have agreed or shall agree to
have recourse to some other method of peaceful settlement;
(b) disputes with the Government of any other country which is a member of
the Commonwealth, all of which disputes shall be settled in such manner as
the parties have agreed or shall agree;
(c) disputes with regard to questions which by international law fall
exclusively within the jurisdiction of Canada; and
(d) disputes arising out of or concerning conservation and management
measures taken by Canada with respect to vessels fishing in the NAFO
Regulatory Area, as defined in the Convention on Future Multilateral
Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement
of such measures." (Emphasis added.)
44. This opinion has already pointed out that there are two categories of
questions covered by this declaration broader questions of general
international law arising from the submission of "all disputes", and the
narrower category of conservation and management measures. We have already
noted that, while a matter may fall within both categories, cardinal rules
of international law, such as non-aggression or the sanctity of [p 508]
treaties, do not vanish into a black hole in the Court's jurisdiction merely
because their violation occurs under the cover of an exempted activity.
45. A similar result follows also from the general principle of legal
interpretation that clauses in a document must be treated not in isolation,
but in the general context of the meaning and purport of the document in
which they occur. Together they form an integral whole, and no one part may
be compartmentalized and brought into exclusive operation at the expense of
the other. In the special context of reservations clauses, the Court
observed, in the Aegean Sea case, that there is a "close and necessary link
that always exists between a jurisdictional clause and reservations to
it"FN15. I respectfully agree with the view so well expressed by the Court
that the general acceptance of the Court's jurisdiction and the reservations
included in it are to be considered as an integral whole.
---------------------------------------------------------------------------------------------------------------------
FN15
See Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 33, para. 79.
---------------------------------------------------------------------------------------------------------------------
46. Taken in its totality, the interpretation that actions involving the use
of force or danger to life are taken out of the declaration by the mere fact
that they arise literally out of measures relating to conservation and
management seems to me to be at odds with a consideration of the
dec-laration as one integral whole. Such an interpretation would seem to
give undue weight to the exemptions clause in a manner which detaches it
from its context.
47. It is necessary also to address the principle ut res magis valeat quam
pereat which was the subject of much argument during the hearings. The
principle that a document must, as far as possible, be given validity
applies not merely to the reservations clause, taken in isolation, but to
the document taken as a whole. The purpose of the entire document is to
subscribe to the jurisdiction of the Court, in accordance with the principle
of reciprocity, in all matters, other than those which are specifically
excepted. The application of this principle to the document read as a whole
means that effect should be given to this general intention as far as is
reasonable. To hold that vast areas of possible international wrongdoing
are withdrawn from the Court's jurisdiction merely because they occur in the
context of an operation which can be described as a conser-vation or
enforcement measure is to denude the consensual document of a vital part of
its meaning. It is indeed a negation of the ut res magis valeat principle
when applied to the document as a whole. I do not think it would be
reasonable to give to reservations clauses such an extended and
all-comprehensive meaning.
48. At the same time it needs to be observed that, granted the meaning that
the reservations clause does not include actions that are illegal at
international law, there are still a great many situations to which the
res-[p 509] ervations clause could validly apply. Even within the context
of legal conservation measures, there could be situations giving rise to
claims at law such as abuse of rights, lack of proportionality, problems of
characterization or definition, or problems of the scope of the reservation
(e.g., does it apply only to private vessels?).
49. Furthermore, no right is absolute and, correspondingly, no reservation
clause is absolute in the sense of exempting all conduct that is in any way
related to it.
50. There has been much argument addressed to the Court on the meaning of
the word "measure". Any action aimed at conservation and management could
well be described as a "measure" directed to that end. Yet this construction
must again be in the context of the totality of the document and, while
literally being such a measure, a given action could yet conceivably fall
within the general clause rather than the particular exception. Even if one
moves into the realm of intentions, it seems farfetched to conclude that it
was in the contemplation of Canada to exclude from its submission to the
jurisdiction a violation of basic principles of international law or to
disregard such time-honoured rules as those relating to the safety of lives
at sea.
51. It is not necessary to delve into the various learned arguments advanced
before us in regard to such questions as burden of proof of jurisdiction and
presumptions in favour of jurisdiction on which we were addressed at some
length. Whether the burden lies upon the party asserting jurisdiction or
the party seeking exemption matters little. The Court's task is to construe
the document as a whole in the light of a reasonable and objective
interpretation, aided where necessary by such insights as may become
available through a perusal of the parties' intentions, if travaux
preparatories should be available. Such a reasonable and objective
construction would, in my view, lead to the broad overall interpretation
which I have indicated above.
52. It is in the nature of things impossible to define where the reach of a
reservation clause ends, but it is clear that there will be cases which are
manifestly so far beyond its ambit that one can be in no doubt that its
applicability has yielded to the applicability of the general part of the
Declaration. The present case, provided the allegations of Spain are
substantiated, is one such. There is therefore no violation of the
principle ut res magis valeat quam pereat.
Effect of Court's Independent Interpretation on Integrity of Consensual
System
53. Much was made in argument of the negative effects that would ensue to
the optional jurisdictional system if the Court were to hold that [p 510]
the reservations clause does not exclude the matter in question from the
jurisdiction of the Court. It seems to me, however, that apart from the
non-judicial nature of this argument, it is the Court's mission to uphold
the integrity of its jurisdiction so far as has been entrusted to it by the
optional clause system. I have referred earlier to this area of judicial
jurisdiction as a haven of legality within the international system. Within
that protected area, it is important that the rule of law should prevail,
irrespective of such considerations as the favourable or unfavourable
reception of the Court's determinations in relation to its jurisdiction.
54. It may indeed be argued, on the contrary, that the preservation of
legality within the system would strengthen rather than undermine its
integrity. I do not think it is open to the Court, if a violation of a
bedrock principle of international law is brought to its attention, to pass
by this illegality on the basis that it is subsumed within the reservations
clause. Such an approach could well weaken not only the authority of the
Court, but also the integrity of the entire system of international law,
which is a seamless web, and cannot be applied in bits and pieces. It is
within this seamless fabric of international law that the entire optional
clause system functions, and that consent to the Court's jurisdiction must
be construed.
***
Philosophy Underlying Creation of Optional Clause
55. I am fortified in reaching this conclusion by the circumstance that it
accords with the philosophy underlying the creation of the optional clause.
A brief historical excursus into this area will help to place the present
problem in its overall context.
56. The optional clause system, it will be remembered, was the
international community's answer, after the agonies of World War I, to the
hitherto intractable problem of carving out an area for the judicial
settlement of international disputes, amidst the welter of conflicting
claims of State sovereigntyFN16. These interests had for several centuries
of recorded thought in many cultures eluded all attempts at the creation [p
511] of such a jurisdiction. At long last a working formula was devised, in
terms suggested by the Brazilian delegation to the Peace Conference (and in
particular Mr. Raoul Fernandes), so as to create, in the midst of the clash
of opposing sovereign interests, a comparatively small haven in which
disputes would be resolved by a supra-national judiciary in accordance with
international law. The words come to mind of Sir Eric Drummond,
Secretary-General of the League of Nations, at the official opening of the
Permanent Court of International Justice on 15 February 1922: "The path of
world progress lies at the present time enshrouded in fog, but here and
there glimpses of light are breaking through and illuminating the way."FN17
---------------------------------------------------------------------------------------------------------------------
FN16
After a failure to achieve such an international agreement at the Peace
Conferences of 1899 and 1907, the Statute of the Permanent Court of
International Justice was approved by a unanimous vote of the Assembly of
the League of Nations on 13 December 1920, at Geneva, after lengthy debates
during which the entire idea was at many stages in danger of total
rejection. (Documents concerning the Action Taken by the Council of the
League of Nations under Article 14 of the Covenant and the Adoption by the
Assembly of the Statute of the Permanent Court, p. 205.)
FN17 P. CI. J., Series D, No. 2, p. 320.
---------------------------------------------------------------------------------------------------------------------
57. The judicial territory covered by the optional clause was one such
illuminated area into which the light of international justice had at last
broken through.
58. In this area, a panel of regular judges as opposed to ad hoc
arbitrators would administer justice among the nations, as domestic
tribunals had traditionally administered justice among the subjects of a
State. This totally unprecedented creation of a system of truly
international adjudication was described on the same occasion as "the most
remarkable step forward that humanity in its upward struggle has
accomplished in the realm of law"FN18. Though now upwards of 70 years in
operation, it is still of tender growth when compared with the thousands of
years of domestic adjudication which had preceded it.
---------------------------------------------------------------------------------------------------------------------
FN18
By Mr. van Karnebeek, Minister for Foreign Affairs of the Netherlands,
ibid., p. 322.
---------------------------------------------------------------------------------------------------------------------
59. I cite these statements because in the administration of this hard-won
jurisdiction the high idealism that attended its birth needs to be kept in
constant view. As this jurisdiction gathers strength through its continued
exercise, the tendency is to be resisted of limiting it within the confines
of circumscribed interpretations, when other interpretations more consistent
with its spirit and purpose are equally available within its governing
Statute. That interpretation should, in my view, be preferred which tends to
strengthen that jurisdiction, provided such interpretation is available
within the parameters of the consenting State's declaration.
60. It is also to be recalled in this context that the universal
expectation of the time was that the creation of this jurisdiction was only
the first step towards the gradual enlargement of that jurisdiction in the
light of the experience of its administration. In the words of the British
delegate, Mr. Balfour: [p 512]
"we are convinced, as the eloquent speaker who has just preceded me [Mr. de
Aguero (Cuba)], and others, have pointed out, that if these things are to be
successful they must be allowed to grow. If they are to achieve all that
their framers desire for them, they must be allowed to pursue that natural
development which is the secret of all permanent success in human affairs .
. ."FN19
------------------------------------------------------------------------------------------------------------F
N19
Mr. Balfour (British Empire), Twenty-first Plenary Meeting of the First
Assembly,
League of Nations, Documents, supra, p. 247.
------------------------------------------------------------------------------------------------------------
Mr. Bourgeois (France) said:
"Natura non fecit saltus, said one of our colleagues. Between the anarchic
state of international law in which the world has hitherto lived and the
state of organised international justice upon which we are about to enter,
there are necessary intermediate steps."FN20
------------------------------------------------------------------------------------------------------------------------------------------------------------------
FN20
Ibid., p. 253.
------------------------------------------------------------------------------------------------------------------------------------------------------------------
61. The creation of this optional clause jurisdiction was one of these
necessary intermediate steps.
62. I appreciate that two views are possible as to how an increasing
confidence in the system of international adjudication can be fostered.
63. One view is the use of extreme caution in the assumption of
jurisdiction, striking down every situation where, upon the literal meaning
of the declaration, there is room for the interpretation that the State in
question has not expressly granted its consent. This approach, while quite
rightly basing itself on the principle of consent, can apply that principle
somewhat too literally, thus resulting in a progressive diminution of that
hard-won area of international jurisdiction that has been entrusted to the
custody of the Court.
64. Another view is that the jurisdiction granted to the Court must be
exercised in the context of the broader responsibility of developing that
jurisdiction in the light of the right of both States to seek from the one
international court that is in existence a resolution of their dispute in
accordance with the overall scheme of international justice based always,
of course, on the presence of consent.
65. There could well be a range of possible interpretations of a
declaration, and it seems to me that the interests of justice are best
served by taking a broader view where that is consistent with the terms of
the declaration. Thus construed, these submissions to the jurisdiction can
afford the Court the basis for building up a growing body of jurisprudence,
as well as for increasing the confidence of States in the reach and the
value of international adjudication. Decisions which tend to diminish that
jurisdiction in its formative stage may well inhibit the growth of the
potentially vigorous sapling of international adjudica-[p 513]tionFN21, and
deter parties, who might otherwise approach the Court for a resolution of
their disputes, from doing so.
---------------------------------------------------------------------------------------------------------------------
FN21
Cf. the observations of Mr. Loder of the Netherlands, at the Twentieth
Plenary Meeting of the First Assembly on 13 December 1920, at which the
Statute of the Permanent Court of International Justice was adopted: "The
slip that we are planting in the ground to-day will develop, will increase
and become a lofty tree with great branches and thick foliage under the
shadow of which the peoples will rest." (League of Nations, Documents,
supra, p. 231.) (Mr. Loder was later elected the first President of the
Permanent Court of International Justice.)
---------------------------------------------------------------------------------------------------------------------
66. All of these principles make no encroachments whatsoever on the
undoubted right of every sovereign State in its own unfettered discretion to
determine whether it will or will not enter the judicial enclave created by
the Statute. The discussions attending the acceptance of this clause show
how careful the drafters were to ensure the preservation of State autonomy
in this regard, for the imposition of compulsory jurisdiction, in however
small a measure, was seen as a significant encroachment upon State autonomy.
67. The entire architecture of the scheme points, however, to the
preservation of the international rule of law within that judicial haven
once entered. It was important to ensure that those who so entered had the
assurance of the unimpeded reign of international law within that haven.
Least was it under contemplation that a State could, while being within the
system, disengage itself from the operation of Charter rules or basic
principles of international law.
68. Such disengagement from the ruling principles of international law is
different in quality from the exclusion of Court jurisdiction in respect of
specified categories of cases or areas of activity. Disengagement of
jurisdiction from the latter is just as manifestly within the power of a
State as disengagement from the former is not.
69. Fundamental breaches of international law, if committed in the course of
a particular activity, could clearly fall into the area over which the Court
has been granted a general jurisdiction by a State's declaration. All the
more would they tend to attract jurisdiction where, as in the present
declaration, the general part submits all disputes arising after the
declaration to the jurisdiction of the Court. Acceptance of the proposition
that actions diverging fundamentally from the basics of international law
can escape Court scrutiny, because they also fall literally within a
reservations clause, could amount to an abdication of a portion of that
hard-won jurisdiction which the Court was designed to exercise.
70. The progressive contraction of that jurisdiction which could result
could weaken the prospects for its continuing development, which were
envisaged when it was launched. As Justice Cardozo has so eloquently
reminded us in regard to the judicial process, "the inn that shelters for
the [p 514] night is not the journey's end"FN22 and, if the long and
difficult road towards the goal of judicial settlement of international
disputes is to be made easier, each stop along the way must offer the
maximum judicial shelter it can provide.
---------------------------------------------------------------------------------------------------------------------
FN22
Benjamin N. Cardozo, The Growth of the Law, 1931, p. 20.
---------------------------------------------------------------------------------------------------------------------
***
Conclusion
71. Upon the interpretation of the reservations clause which is indicated
above, the Court is not in a position to reject the Spanish Application in
limine on the basis of manifest lack of jurisdiction. There may well be no
jurisdiction, and there may just as well be jurisdiction. The issue can only
be determined once it is known whether the facts bring the case within the
general submission to jurisdiction, or within the reservations clause. Until
these are known, the Court is not entitled to reject Spain's Application.
72. It is scarcely necessary to observe that the resulting procedures will
involve expense and delay, as they will require a survey of facts as a
prerequisite to determining whether the Court has jurisdiction. Yet, this
is the price that must be paid for a decision of this matter in accordance
with law and justice. It is true that the unqualified power of joining the
objections to the merits, which the Court enjoyed under Article 62,
paragraph 5, of the 1946 Rules, has been formally dropped, but the
reformulated principle contained in Article 79 of the 1978 Rules does not
abolish the option of joining an objection to the meritsFN23, and this is
precisely the situation for which Article 79, paragraph 6, is intended to
provide. No doubt such situations are exceptional and are to be kept to a
minimumFN24, but the present case seems to me to be eminently one in which
the demands of justice require such a course.
---------------------------------------------------------------------------------------------------------------------
FN23
Rosenne, op. cit., pp. 924-928.
FN24 For cases which have already adopted this course, in whole or in part,
see Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of
America), Jurisdiction and Admissibility, I.C.J. Reports 1984, pp. 425-426;
Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America),
I.C.J. Reports 1986, pp. 29-31; Elettronica Sicula S.p.A. (ELSI), I.C.J.
Reports 1989,
p. 18; Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
Kingdom),
I.C.J. Reports 1998, p. 24; Questions of Interpretation and Application of
the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya
v. United States of America), I.C.J. Reports 1998, p. 23; Land and Maritime
Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), I.C.J. Reports 1998, p.
57.
---------------------------------------------------------------------------------------------------------------------
73. One need go no further at this stage. Sufficient has been alleged to
show that, assuming the existence of the facts alleged, a justiciable dis-[p
515] pute which is within the Court's jurisdiction could well exist between
the Parties regarding the violation of basic rules of international law.
This matter cannot, in my view, be treated as involving a jurisdictional
objec-tion of an exclusively preliminary character. I believe the Court is
left with no alternative but to proceed to the next phase of this case, in
order to determine whether it has jurisdiction.
(Signed) Christopher Gregory WEERAMANTRY.
[p 516]
DISSENTING OPINION OF JUDGE BEDJAOUI
[Translation]
I. GENERAL INTRODUCTION
1. Continuing its long and estimable tradition of respect for the primacy
of law, both internal and external, Canada has for 70 years placed full
confidence, first in the Permanent Court of International Justice and then
in its successor, our present Court. Thus, its first declaration of
acceptance of the jurisdiction of the Permanent Court of International
Justice dates from 20 September 1929. And since then it has always held our
jurisdiction in great respect and has not hesitated to have recourse to it,
as for example in the Gulf of Maine case.
2. On two occasions, however, in 1970 and 1994, Canada made reservations
imposing specific restrictions on the Court's jurisdiction. In 1970 it
amended its declaration of acceptance of the Court's jurisdiction so as [p
517] to enable it to take measures to prevent pollution and protect the
marine environment of its northern coast, over an area extending more than
100 miles towards the polar zone. At that time, however, the United States,
at which these measures were aimed, did not bring the matter before the
Court.
3. Canada's reservation, contained in its declaration of 7 April 1970 (see
I.C.J. Yearbook 1975-1976, p. 54), had a certain resemblance, at least as
regards the manner in which it was formulated, to that of 1994 and read as
follows:
"(2) I declare that the Government of Canada accepts as compulsory ... the
jurisdiction of the International Court of Justice . . . over all disputes .
. . other than:
.
(d) disputes arising out of or concerning jurisdiction or rights claimed or
exercised by Canada in respect of the conservation, management or
exploitation of the living resources of the sea, or in respect of the
prevention or control or contamination of the marine environment in marine
areas adjacent to the coast of Canada." (Emphasis added.)
4. Disregarding the 1985 declaration, which contained no equivalent
reservation, it will be noted that the 1970 reservation quoted above has
been replaced by another, situated in the same place, allowing Canada to
exclude the jurisdiction of the Court in regard to
"(2) . . .
.
(d) disputes arising out of or concerning conservation and management
measures taken by Canada with respect to vessels fishing in the NAFO
Regulatory Area, as defined in the Convention on Future Multilateral
Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement
of such measures." (Emphasis added.)
5. These similar reservations formulated by Canada on two separate occasions
would appear to reflect its hesitation, or reluctance, to submit to the
sanction of the International Court issues which it regarded as vital, and
in relation to which it considered the applicable law to be, in the words of
the Canadian Foreign Minister, "inadequate, non-existent or irrelevant". The
point was that Canada was not entirely satisfied with the Montego Bay
Convention of 10 December 1982 on the Law of the Sea, which for this reason
it has not ratified and which, in its view, failed to settle fully the
problem of overfishing, thus jeopardizing fisheries resources for future
generations. [p 518]
6. Canada has frequently expressed its dissatisfaction and invoked the
"emergency", or even "state of necessity", which it is facing in this
regard. Its declarations in international fora have been as clear as they
have been numerous. One writer has described one of them in the following
terms:
"The (Canadian) Minister of Fisheries, Mr. John Crosbie, had told the Rio de
Janeiro Conference that foreign overfishing was one of the subjects which
Canada intended to address as a matter of urgency and that it had a dual aim
in this regard: to obtain approval from the world leaders meeting at the
Earth Summit for certain principles and measures on the one hand, and to
seek a follow-up conference to examine these questions in greater detail on
the other hand . . . Mr. Crosbie stated in barely veiled terms that
legislative action by the Canadian Federal Government with regard to fishing
on the high seas was being considered as a real alternative in response to
the urgent appeals that he had been getting from the Atlantic Provinces, and
in particular from Newfoundland, asking him to deal with the problem of
foreign overfishing on the 'Nose' and 'Tail' of the Grand Banks by
unilaterally extending his fisheries jurisdiction beyond the 200-mile
limit."FN1
------------------------------------------------------------------------------------------------------------
FN1
Paul Fauteux, "L'initiative juridique canadienne de la pκche en haute mer",
Canadian Yearbook of International Law, 1993, Vol. XXXI (pp. 33-87), p. 58.
[Translation by the Registry. ]
------------------------------------------------------------------------------------------------------------
7. Statements of this type give us an insight into the real background to
the present case. The Court had to rule on its jurisdiction by examining
the meaning and scope of Canada's reservation, but it could not ignore the
fact that, if it accepted such a reservation, it was leaving the author of
that reservation free to combat foreign overfishing by unilaterally giving
itself powers over the high seas for as long as no settlement had been
reached between itself and the States concerned. This account of the
background to the case was necessary, inasmuch as, where reservations have
been formulated ratione materiae, prima facie they cannot be construed
without at least some reference to the substantive issues involved.
8. The case would have been perfectly simple if the duty of the Court had
been to confine itself to ascertaining the meaning of the expression
"conservation and management measures" contained in the reservation, and to
affirming that "the enforcement of those measures" against the Spanish
fishing vessel Estai was precisely covered by the terms of that reservation,
thus preventing the Court from entertaining any claim in this regard. It is
absolutely essential, however, that attention be focused on another, far
more important term of the reservation, that which places Canada's action,
in geographical terms, "in the NAFO Regulatory Area", that is to say outside
the 200-mile limit. And indeed the Estai was [p 519] boarded some 245 miles
off the Canadian coast. If in the Canadian reservation we simply substitute
for the words "in the NAFO Regulatory Area" the expression "beyond Canada's
200-mile exclusive economic zone", then it immediately becomes clear that
the Court is dealing here with a reservation of an unusual, not to say
audacious, nature. Hence it became incumbent upon the Court to verify
whether such a reservation could be accepted without difficulty under the
optional clause system.
9. Article I (2) of the NAFO Convention contains a crystal-clear definition
which leaves no doubt in this regard when it provides that:
"The area referred to in this Convention as 'the Regulatory Area' is that
part of the Convention Area which lies beyond the areas in which coastal
States exercise fisheries jurisdiction." (Emphasis added.)
It is in no sense a distortion of the Canadian reservation to recast it in
terms of its true meaning, making it accessible to the reader, who may not
be aware of the precise significance of the expression "NAFO Regulatory
Area" and will certainly be in a better position to understand the object of
the reservation, whose field of application is "the high seas". The object
of the reservation is to signal urbi et orbi that Canada claims special
jurisdiction over the high seas. The Court cannot interpret or accept this
reservation in the same way as it would interpret or accept an ordinary
reservation, since, without any need for a consideration of the merits, its
terms prima facie disclose a violation of a basic principle of international
law. This is an issue which the Court cannot simply ignore by restricting
itself to an external and superficial interpretation of the res-ervation. It
cannot be right for the Court to content itself in this case with a purely
formal view of the reservation, disregarding its material content a
content which does not require an investigation involving examination of the
merits, since it is abundantly clear that the reservation affects a
traditionally established right. This is the real flavour of this
fascinating case.
10. Without going further into the merits than is permissible at this
jurisdictional stage, the Court is bound to take account of the efforts by
Canada over more than a decade to obtain recognition, in the context of its
"preferential right" as a coastal State, of its special jurisdiction to act
on the high seas by means of measures for the conservation and management
of fisheries stocks in the interests of the entire international community.
But, however estimable this aim, it would be over-facile to hold that we
must "answer a simple question: were the measures taken by Canada and
enforced against the Spanish vessel Estai, conservation and management
measures? If the answer is yes, the Court is without jurisdiction" (CR
98/14, p. 51, para. 10). It is over-simplifying the question to empty the
reservation of its sole veritable substance, for which Canada has been
campaigning for so many years, namely the purported preferential right of
coastal States to take conservation and management meas-[p 520]ures in
respect of the high seasFN2. The precise scope of the Canadian reservation,
and hence the question whether or not the Court's jurisdiction is excluded,
thus depends basically on the issue of the meaning of the "conservation and
management measures" contemplated by that reservation. Depending on whether
such measures fall to be interpreted by reference to Canadian law or even
simply by reference to the generally accepted meaning of that expression
or on the contrary on the basis of international law, given already that
there is nothing to prevent them being applied on the high seas, impugning
the traditional principle of the freedom of that area, the Canadian
reservation takes on quite different aspects. At this stage it is already
clear that the Court cannot just content itself with stating that the
boarding on the high seas of a foreign fishing vessel merely represents the
enforcement of conservation and management measures taken by Canada, and
thus hold that that incident is covered by a reservation entirely depriving
it of jurisdiction, for this would be to shelter behind the notion of
"conservation and management measures", interpreted in an artificial
manner, without any concern for what such measures involve in terms of the
violation of a well-established principle of international law.
---------------------------------------------------------------------------------------------------------------------
FN2
Laurent Lucchini, "La loi canadienne du 12 mai 1994: la logique extrκme de
la thιorie du droit prιfιrentiel de l'Etat cτtier en haute mer au titre
stocks chevauchants", Annuaire franηais de droit international, 1994, pp.
864-875.
---------------------------------------------------------------------------------------------------------------------
11. It follows that the only proper attitude is to interpret and evaluate
those "conservation and management measures" by reference to international
law. It is in the corpus of the law of nations that a definition of such
measures must be sought. And two options, and two only, accordingly present
themselves to the Court at this stage of the proceedings: either, at the
very least, to state that it cannot readily find any well-established
international definition of such measures applicable to the case before it,
and is accordingly obliged to touch on the merits of the case by going
further in its examination of the facts and of their implications in terms
of the international practice of States, and in consequence to declare that
Canada's objection to jurisdiction is not of an exclusively preliminary
character within the meaning of Article 79, paragraph 7, of the Rules of
Court; or, on the contrary, to declare that it does have available to it an
undisputed international definition of conservation and management measures,
which, applied to the facts of this case, obliges it to interpret the
Canadian reservation as invalid or not opposable in so far as it purports to
cover acts occurring on the high seas, and is accordingly not capable of
constituting a bar to the Court's jurisdiction to proceed to an examination
of the merits.
12. Without dealing with all the points which appear to me disputable in the
Judgment in particular the theoretical and practical implications of the
methods of interpretation adopted therein, or at least the manner in which
the Judgment formulates a number of these points (see in par-[p 521]ticular
paragraphs 46 to 54 of the Judgment) I shall restrict myself to raising
three important questions on which, to my great regret, I find myself
obliged to express my disagreement with the majority of the Court:
the subject-matter of the dispute;
the validity of the Canadian reservation;
the definition of conservation and management measures.
***
II. The Subject-Matter of the Dispute
13. What makes this case so unique and at the same time gives it its great
legal interest, is the persistent disagreement between the applicant State
and the respondent State with regard to the actual subject-matter of the
dispute a disagreement now extended by another, just as far-reaching,
between the majority of the Court and the minority on the same point. This
is hardly an everyday occurrence in the Court's jurisprudence.
14. Determination of the subject-matter of the dispute appears to me to be a
"tripartite operation", involving first the applicant State, then the
respondent State and finally the Court. But I would hasten to add that in
this operation the distribution of roles among the various actors is
necessarily unequal or, more precisely, different, since the principle of
equality has no part to play here. In a case before the International Court
the allocation of tasks is necessarily dependent upon the status of each of
the actors. And to accord to each of them an equal say in the determination
of the subject of the dispute is to call into question the intrinsic status
of Spain as Applicant, the equally specific status of Canada as Respondent,
and finally the status of the Court as forum rather than party.
15. For it stands to reason that within any judicial order, whether domestic
or international, it is naturally the applicant who has the initiative and
who defines at his own judicial risk the subject-matter of the dispute
which he wishes to bring before the court. In this regard he enjoys a clear
procedural right, deriving from his status as applicant, to seek and to
obtain from the court a ruling on the subject of the dispute which he has
submitted to it and on that alone, to the exclusion of all others (subject
of course to any supervening incidental proceeding). The principle of the
equality of the parties is by its nature completely irrelevant to this
question, for it cannot render "equal" those who, procedurally, are
"different". It cannot turn the "respondent" into a "second applicant",
purportedly endowed with some concurrent power to reformulate the
subject-matter of the dispute as defined by the applicant. Nor, by the same
token, can it transform the court into an applicant "party" (a third one!),
with the power to set aside the subject of the dispute as defined in the
application and replace it with an entirely different one. [p 522]
16. In international proceedings, as indeed in domestic litigation, the
respondent State, by virtue of its very status as respondent, does not have
a power to intervene in the definition of the subject as presented by the
applicant. It could only have such a right if it changed its status, which
can happen in two cases: first, where the proceedings are instituted not as
in this case by an application, but by means of a special agreement, thus
making each State simultaneously applicant and respondent, and secondly
where, in proceedings instituted by an application as in this case, the
respondent State lodges a counter-claim, of which there is no question here.
***
17. What then happened in this case?
I shall do my best to avoid compounding the semantic confusion which has
rendered still more complex a problem thought to be simple, and I shall in
particular endeavour to avoid using the word "claims", which in my view has
a somewhat narrow scope, giving my preference to what I consider to be the
more appropriate term here, namely the "dispute", which has a wider sense.
Thus it appears to me that the word "claims" denotes legal acts whereby one
party to the proceedings makes "requests", which it seeks to have upheld by
the court by means of arguments of fact or law (the "grounds"), presented by
it in support of those requests in order to enable the court to settle the
"dispute".
18. How, as Applicant, did the complainant here indicate to the Court what
it was complaining about? Spain clearly stated the precise matter over which
it was bringing Canada before the Court. In both its written and its oral
pleadings, it consistently complained of "a very serious infringement of a
right deriving from its sovereign status, namely exclusive jurisdiction
over vessels flying its flag on the high seas" (CR 98/9, p. 20), and stated
that the subject of the dispute, which constituted "the crux of the case",
was the issue of Canada's legal title to act on the high seas against
vessels flying the flag of a foreign State. And in its final submissions
Spain again emphasized that "the subject-matter of the dispute is Canada's
lack of title to act on the high seas against vessels flying the Spanish
flag, the fact that Canadian fisheries legislation cannot be invoked against
Spain, and reparation for the wrongful acts perpetrated against Spanish
vessels" (emphasis added).
19. In setting out in clear and precise terms the subject of its dispute,
both from the outset in its Application, and then in its Memorial, oral
argument and final submissions, Spain had satisfied the requirements of the
Statute and the Rules of Court. Thus at no time was there any suggestion by
the Court that Spain had failed to comply with the requirements of Article
40 of the Statute or of Article 38, paragraph 1, of the Rules of Court, both
of which obliged it to state the precise nature of "the subject of the
dispute" from the outset, when it filed its Application. [p 523]
20. It should be noted in passing that this same dispute also involved not
just Spain, but the entire European Community. And it is not without
relevance to observe that Spain, whose concern was matched by that of the
other member States, both of the European Community and of NAFO, had already
raised the same subject of dispute, and consistently posed the same problem
in the same terms, by protesting vigorously against the Canadian
legislation, even before the filing of its Application with the Court some
ten months later following the boarding of the Estai and the harassment and
inspection of other Spanish vessels. Spain could not have demonstrated
greater consistency. The same dispute was already in existence even before
the incident. The conflict between Spain and Canada over the alleged
entitlement to a "right" over the high seas was already in existence and had
indeed become quite serious, before it dramatically came to a head ten
months later as a result of the effective exercise of such a "right"
against a Spanish vessel. Canada's purported "right" to act on the high seas
under certain conditions laid down in its new legislation remained the same.
It had finally provided Spain with the opportunity to bring it before the
Court. That was the subject of the dispute, declared and indeed reiterated
with rare perseverance by Spain.
21. In sum, in this case, for Spain acting in its capacity as Applicant, the
subject of the dispute was clearly constituted by the issue of the legal
title to act on the high seas, in the light of the principles and rules of
international law which uphold the freedom of the seas ("grounds" of law)
and which Spain claims to have been violated by Canada ("arguments" of
fact), as a result of which Spain has asked the Court to declare the
Canadian legislation unopposable to it and to order that Canada refrain from
any repetition of the acts complained of and make appropriate reparation
for those acts ("claims" and "requests").
***
22. It was an altogether different subject-matter that Canada
notwithstanding its status as respondent State raised against Spain. It
invoked issues of fishing and of the conservation and management of
fisheries resources within the NAFO Regulatory Area, and consequently
contended that this was the true subject of the dispute, and that it was
excluded from the jurisdiction of the Court by virtue of reservation (d)
inserted by Canada in its new declaration notified on 10 May 1994 (two days
before the adoption of Bill C-29 amending the Coastal Fisheries Protection
Act). It is worth noting that the definition of the subject of the dispute
given by Canada in this case was not "objectively" substantiated in
submissions on the merits. Spain, on the other hand, did present submissions
on the merits in its Application. Canada's definition may therefore appear
to have been "tailored to suit the occasion", inasmuch as it was intended to
support the Canadian position concerning jurisdiction.[p 524]
Thus Canada stated that
"this case arose out of and concerns conservation and management measures
taken by Canada with respect to Spanish vessels fishing in the NAFO
Regulatory Area and the enforcement of such measures" (Counter-Memorial of
Canada, para. 229).
***
23. We are faced here with two entirely different subjects of the dispute :
one put forward in Spain's Application, and the only one which because it
emanated from the Applicant the Court was required to settle (having, of
course, first "processed" it, i.e., given the dispute its "legal
characterization"); the other submitted by Canada, which the Court could not
have entertained unless Canada had itself lodged a counter-claim. This was
not the case. The Court should therefore, at most, have focused the
proceedings on the true subject of the dispute, as presented and defined by
the applicant State, while asking Canada to concentrate its defence on this
subject and no other, although at the same time allowing Canada to submit,
as one of its "grounds" of law, what it had presented as a "subject of the
dispute". In this way, the Court could have "adjusted the focus" of the
proceedings while remaining on firm legal ground. None of this occurred,
despite the desperate attempts by Spain, which simply reiterated its
contention that the dispute was confined to events on the high seas and that
the other, prior, matters did not relate to the dispute stricto sensu and
did not in any case concern Spain, which, in its capacity as Applicant, was
free to refer to the Court the dispute of its choosing, albeit, obviously,
at its own judicial risk.
24. There is of course a connection between the subject-matter of the
dispute, as defined by the Applicant for the purposes of the claim which it
instituted, but which regrettably was not heard, and that alleged by the
Respondent to be the true one, which the Court did indeed settle and
dis-pose of. However, that connection in no way justified the substitution
by the Court of the second subject for the first one as defined by the
Applicant.
25. And even allowing, on an extreme view, that the Canadian legislation,
together with its implementing regulations, had given rise to a general
dispute, and that, on that basis, such a general dispute could be regarded
as comprising a number of aspects or involving a number of levels, this was
still no justification for refusing, as the Court did, to recognize an
applicant State's right to refer to it only one aspect of that general
dispute, despite its connection with other aspects. As the Court was at
pains to point out in the case of the United States Diplomatic and Consular
Staff in Tehran, "no provisions of the Statute or Rules contemplates that
the Court should decline to take cognizance of one aspect of a dispute
merely because that dispute had other aspects". [p 525]
26. Notwithstanding all of this, the Court took the view that the proper
course in law was to relocate the subject of the dispute so as to bring it
far closer to that proposed by Canada. In my view the Judgment conferred
upon the respondent State and the Court powers so wide as to distort the
essential nature of the subject of the dispute as set out in the
Application. Determination of the subject-matter of the dispute is
admittedly, as I have already said, a "tripartite" or triangular operation,
involving, in various degrees and with different roles and powers, first the
Applicant, then the Respondent, and finally the Court. The applicant State
is free to submit such dispute as it wishes to submit, but has a duty under
the Statute to "specify" and "define" the subject-matter of that dispute.
The scene is set. The play to be acted out has been freely chosen by the
Applicant. The proceedings have been initiated, on the terms desired by the
Applicant. The respondent State now has the option of casting its legal
"grounds", whatever they be, in the mould thus prepared for them. It is,
however, well accepted that the Respondent may in practice opt for an
alternative judicial strategy and may seek to escape the definition of the
dispute given by the applicant State by invoking grounds and arguments,
which it is for the Court to evaluate. But the Court can in no way modify
the "decor" or change the subject-matter of the dispute. For, if it did so,
it would be rendering judgment in a case altogether different from that
brought before it by the Applicant. The Court's role is to give an
appropriate legal characterization to those claims of the applicant State
which properly come within the framework of the subject-matter of the
dispute as that State has defined it in its Application. This does not mean
that the Court has the power to alter the subject-matter put before it.
Still less can the respondent State propose a different subject-matter to
the Court. That would be to hear a different case.
***
27. I find it regrettable that the Court allowed such a metamorphosis to
occur. The Respondent argued that the only possible subject-matter of the
dispute was "the conservation and management measures" taken by it, in
respect of whose enforcement it had been at pains to protect itself through
its reservation. And the Court accepted this, allowing the real dispute
submitted to it by the applicant State, which concerned its exclusive and
sovereign jurisdiction on the high seas over vessels flying its flag, to be
subsumed in desolating fashion for the Applicant in a nonexistent
dispute about fisheries conservation and management. Thus, while Spain
proclaims its sovereignty on the high seas over its vessels, Canada speaks
of conservation and management measures. Whereas Spain invokes a "conflict
of jurisdiction" on the high seas, Canada opposes to it a "conflict over
fisheries conservation and management".
28. There is a suggestive parallel to be drawn between these two
situations. Spain asked the Court to settle a dispute which had arisen
between itself and Canada in 1995 concerning the legality and opposability
to [p 526] Spain of a Canadian internal enactment which, when implemented on
the high seas, affected vessels flying its flag. The Court, won over by
Canada's claim to alter the clear subject of the dispute, proceeded to
settle a dispute one which moreover no longer exists, having arisen in
1994 between Canada and the European Community. In place of the dispute
properly submitted to it by the applicant State, which concerned respect for
the international limits of national jurisdiction, the Court proceeded, in
quite surprising fashion, to direct its attention to a dispute regarding
measures for the conservation and management of fisheries. In short, Spain
talked of State sovereignty, Canada of fisheries conservation and
management.
***
29. As Judge Fitzmaurice so aptly put it in the separate opinion which he
appended to the two Fisheries Jurisdiction Judgments,
"agreed measures of conservation on the high seas for the preservation of
common fisheries in which all have a right to participate, is of course a
completely different matter from a unilateral claim by a coastal State to
prevent fishing by foreign vessels entirely, or to allow it only at the will
and under the control of that State. The question of conservation has
therefore no relevance to the jurisdictional issue now before the Court,
which involves its competence to adjudicate upon a dispute occasioned by
Iceland's claim unilaterally to assert exclusive jurisdiction for fishery
purposes up to a distance of 50 nautical miles from and around her coasts."
(/. C.J. Reports 1973, pp. 26-27; emphasis added.) (N.B. At the time there
was no exclusive economic zone and the distance referred to here actually
takes us onto the "high seas".)
30. A glimmer of hope nevertheless emerges on reading paragraphs 34 to 35 of
the Judgment. We note that the Court accepts that the subject of the dispute
is what the Applicant states it to be:
"34. The filing of the Application was occasioned by specific acts of Canada
which Spain contends violated its rights under international law. These
acts were carried out on the basis of certain enactments and regulations
adopted by Canada, which Spain regards as contrary to international law and
not opposable to it. It is in that context that the legislative enactments
and regulations of Canada should be considered.
3
5. The specific acts (see paragraph 34 above) which gave rise to the present
dispute are the Canadian activities on the high seas in relation to the
pursuit of the Estai, the means used to accomplish its arrest and the fact
of its arrest, and the detention of the vessel and arrest of its master,
arising from Canada's amended Coastal Fisher-[p 527]ies Protection Act and
implementing regulations. The essence of the dispute between the Parties is
whether these acts violated Spain's rights under international law and
require reparation. The Court must now decide whether the Parties have
conferred upon it jurisdiction in respect of that dispute."
31. But hope is rapidly extinguished. I thus find it astonishing that, on
the pretext of placing a legal characterization on the dispute submitted to
it by the applicant State, the Court so far overstepped the limits of the
operation whereby it sought to "clarify" the subject of that dispute as to
veer away towards a subject altogether different from that submitted to it,
notwithstanding that Spain, as a sovereign State and as applicant State, had
an uncontested procedural right obviously at its own judicial risk to
seise the Court of whatever subject it considered legitimate, and an
inalienable interest at law in seeking and obtaining judgment on the
specific dispute whose subject it had indicated with perfect clarity. Such a
decision represents a regrettable departure from the traditional general
view of the respective roles of applicant State, respondent State and the
Court.
***
32. I have already said enough about the respective roles of Applicant and
Respondent. It remains to be more specific about that of the Court.
According to the Judgment, the Court is empowered "to determine on an
objective basis the dispute dividing the parties" (para. 30). I am afraid
this is not altogether correct. Adding the words "on an objective basis"
cannot lend acceptability to this power of "definition", whose result here
has been to substitute one dispute for another. The Court can do no more
than attribute a "legal characterization" (and not a "definition") to the
subject of the dispute. Where an act takes place on the high seas, the Court
must verify factually what that act is (in this case the "boarding" of a
fishing vessel), in what area it took place ("the high seas"), and who the
author is ("Canada"). Those are facts. After that, it has to ascertain
whether the author of the act possesses a title, or legal ground, on which
to base its act, in order finally, in this phase of the proceedings, to be
in a position to rule on the question whether or not the title or legal
ground invoked is covered by Canada's reservation (d).
***
33. In the Nuclear Tests cases (1974), the Court rejected certain arguments
put forward by one party as part of its submissions because it considered
them "not as indications of what the party was asking the Court to decide,
but as reasons advanced why the Court should decide in the [p 528] sense
contended for by that party". In support of its decision, it cited the
Fisheries case, in which it had said that nine of the thirteen points making
up the Applicant's submissions "[were] elements which might furnish reasons
in support of the Judgment, but cannot constitute the decision (I.C.J.
Reports 1951, p. 126)" (I.C.J. Reports 1974, p. 262; emphasis added).
In 1974 the Court considered itself legitimately entitled and indeed
obliged "to isolate the real issue in the case and to identify the object
of the claim" (para. 29; emphasis added), but not, at least according to the
intention there expressed, to proceed proprio motu to "the reformulation of
submissions". In the same paragraph it made it clear, citing the case-law of
its predecessor (P. C.I. J., Series A, No. 7, p. 35), that it had no power
to "substitute itself for [the parties] and formulate new submissions".
34. So aroused was the judges' vigilance that, despite the majority's
precautions in this regard, it was strongly criticized by the minority on
this issue. There is no better way of defining the limits upon the Court's
duties than that set out by Judges Jimenez de Arechaga, Dillard, Onyeama and
Sir Humphrey Waldock in their joint dissenting opinion in those Nuclear
Tests cases:
"11. In a case brought to the Court by means of an application the formal
submissions of the parties define the subject of the dispute, as is
recognized in paragraph 24 of the Judgment. Those submissions must
therefore be considered as indicating the objectives which are pursued by an
applicant through the judicial proceedings.
While the Court is entitled to interpret the submissions of the parties, it
is not authorized to introduce into them radical alterations. The Permanent
Court said in this respect: '. . . though it can construe the submissions of
the Parties, it cannot substitute itself for them and formulate new
submissions simply on the basis of arguments and facts advanced' (P. C.I.
J., Series A, No. 7, p. 35, case concerning Certain German Interests in
Polish Upper Silesia). The Judgment (para. 29) refers to this as a
limitation on the power of the Court to interpret the submissions 'when the
claim is not properly formulated because the submissions of the parties are
inadequate'. If, however, the Court lacks the power to reformulate
inadequate submissions, a fortiori it cannot reformulate submissions as
clear and specific as those in this case.
12. In any event, the cases cited in paragraph 29 of the Judgment to justify
the setting aside in the present instance of the Applicant's first
submission do not, in our view, provide any warrant for such a summary
disposal of the 'main prayer in the Application'. In those cases the
submissions held by the Court not to be true submissions were specific
propositions advanced merely to furnish reasons in support of the decision
requested of the Court in the 'true' final submission. Thus, in the
Fisheries case the Applicant had summarized [p 529] in the form of
submissions a whole series of legal propositions, some not even contested,
merely as steps logically leading to its true final submissions (I.C.J.
Reports 1951, pp. 121-123 and 126). In the Min-quiers and Ecrehos case the
'true' final submission was stated first and two legal propositions were
then adduced by way of furnishing alternative grounds on which the Court
might uphold it (I.C.J. Reports 1953, at p. 52); and in the Nottebohm case a
submission regarding the naturalization of Nottebohm in Liechtenstein was
considered by the Court to be merely 'a reason advanced for a decision by
the Court in favour of Liechtenstein' on the 'real issue' of the
admissibility of the claim (I.C.J. Reports 1955, at p. 16). In the present
case, as we have indicated, the situation is quite otherwise. The legality
or illegality of the carrying out by France of atmospheric nuclear tests in
the South Pacific Ocean is the basic issue submitted to the Court's
decision, and it seems to us as wholly unjustifiable to treat the
Applicant's request for a declaration of illegality merely as reasoning
advanced in support of its request for an Order prohibiting further tests.
13. In accordance with these basic principles, the true nature of the
Australian claim, and of the objectives sought by the Applicant ought to
have been determined on the basis of the clear and natural meaning of the
text of its formal submission. The interpretation of that submission made by
the Court constitutes in our view not an interpretation but a revision of
the text, which ends in eliminating what the Applicant stated is 'the main
prayer in the Application', namely the request for a declaration of
illegality of nuclear atmospheric tests in the South Pacific Ocean. A
radical alteration or mutilation of an applicant's submission under the
guise of interpretation has serious consequences because it constitutes a
frustration of a party's legitimate expectations that the case which it has
put before the Court will be examined and decided . . .
14. The Judgment revises, we think, the Applicant's submission by bringing
in other materials such as diplomatic communications and statements made in
the course of the hearings. These materials do not justify, however, the
interpretation arrived at in the Judg-ment. They refer to requests made
repeatedly by the Applicant for an assurance from France as to the cessation
of tests. But these requests for an assurance cannot have the effect
attributed to them by the Judgment. While litigation is in progress an
applicant may address requests to a respondent to give an assurance that it
will not pursue the contested activity, but such requests cannot by
themselves support the inference that an unqualified assurance, if
received, would satisfy all the objectives the applicant is seeking through
the judicial proceedings; still less can they restrict or amend the claims
formally submitted to the Court. According to the Rules of Court, this can
only result from a clear indication by the applicant to that [p 530] effect,
through a withdrawal of the case, a modification of its submissions or an
equivalent action. It is not for nothing that the submissions are required
to be presented in writing and bear the signature of the agent. It is a non
sequitur, therefore, to interpret such requests for an assurance as
constituting an implied renunciation, a modification or a withdrawal of the
claim which is still maintained before the Court, asking for a judicial
declaration of illegality of atmospheric tests. At the very least, since the
Judgment attributes intentions and implied waivers to the Applicant, that
Party should have been given an opportunity to explain its real intentions
and objectives, instead of proceeding to such a determination inaudita
parte" (I.C.J. Reports 1974, pp. 316-317.)
35. In relying in the present case on the 1974 French Nuclear Tests cases,
the Court seems to me, moreover, to have invoked a precedent which is not
apt to justify the faculty here accorded to Canada, the respondent State,
since France the respondent State in 1974 having failed to appear, did
not put forward any argument for a definition of the subject of the dispute
different from that formulated by the Applicant.
***
36. In the present case, the Court has relied on jurisprudence which seems
either not fully relevant, or to have been interpreted incorrectly. In this
respect I would first cite what I think is a particularly appropriate
passage from the Sociιtι Commerciale de Belgique case, which was itself
cited by the Court in the case concerning Military and Paramilitary
Activities in and against Nicaragua:
"It is to be observed that the liberty accorded to the parties to 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 ... 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. A practice of this kind would be calculated to
prejudice the interests of third States to which, under Article 40,
paragraph 2, of the Statute, all applications must be communicated in order
that they may be in a position to avail themselves of the right of
intervention provided for in Articles 62 and 63 of the Statute." (P.C.I.J.,
Series A/B, No. 78, p. 173; see Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, I. C.J. Reports 1984, p. 427, para. 80.)
It will be evident that this highly cautious piece of jurisprudence LIMITS
EVEN THE POWER OF THE APPLICANT STATE, the reason being to avoid prejudice
[p 531]to third States which might wish to avail themselves of their right
to intervene in the proceedings.
37. Jurisprudence of a similar kind was again applied by the Court, and with
a similarly cautious approach, in the case concerning Certain Phosphate
Lands in Nauru:
"Article 40, paragraph 1, of the Statute of the Court provides that the
'subject of the dispute' must be indicated in the Application; and Article
38, paragraph 2, of the Rules of Court requires 'the precise nature of the
claim' to be specified in the Application. These provisions are so
essential from the point of view of legal security and the good
administration of justice that they were already, in substance, part of the
text of the Statute of the Permanent Court of International Justice,
adopted in 1920 (Art. 40, first paragraph), and of the text of the first
Rules of that Court, adopted in 1922 (Art. 35, second paragraph),
respectively. On several occasions the Permanent Court had to indicate the
precise significance of these texts. Thus, in its Order of 4 February 1933
in the case concerning the Prince von Pless Administration (Preliminary
Objection), it
stated that:
'under Article 40 of the Statute, it is the Application which sets out the
subject of the dispute, and the Case, though it may elucidate the terms of
the Application, must not go beyond the limits of the claim as set out
therein . . .' (P. C.I. J., Series AIB, No. 52, p. 14)." (Certain Phosphate
Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, pp. 266267, para. 69.)
Obviously, such vigilance on the part of the Court, in requiring even the
applicant State to remain within the specific confines of the subject of the
dispute submitted by it to the Court, is all the more appropriate in
relation to the respondent State and indeed to the Court itself, since not
only does it preclude the possibility of third States being deprived of
their right of intervention, but also more crucially it enables the
Court properly to adjudicate on its jurisdiction in light of the subject as
defined by the Applicant, and not of some other subject adduced subsequently
by the Applicant or by anyone else.
38. It would seem to me prudent in any event to preclude any notion of
placing the Respondent on a precisely equal footing with the Applicant in
relation to the definition of the subject of the dispute. Quite apart from
the infringement of procedural requirements, to allow the Respondent an
identical power in the determination of the subject of the dispute would be
to deny the possibility under the Statute of instituting proceedings
unilaterally by way of application, thus engendering the belief that the
Statute and the Rules of Court allowed parties no means of instituting
proceedings otherwise than by special agreement. However, what has occurred
in the present case strikes me as even more disturbing, inasmuch as the
Court's reasoning has led it willy-nilly to place the Respondent not [p 532]
merely on an equal footing with the Applicant but indeed above it,
permitting the former to substitute itself for the latter in "defining" the
subject of the dispute submitted to the Court by the applicant State.
***
39. As regards the Right of Passage over Indian Territory case, also cited
in the Judgment, one should of course bear in mind that this was a case on
the merits, settling a dispute concerning a condition ratione tem-poris in
India's declaration of acceptance of the optional clause a con-dition
which in the preliminary phase had been referred for final consideration to
the merits stage. A decision on that condition had thus been joined to the
merits because, in the light of the subject-matter of the dispute, as
established by Portugal, the applicant State, it was not exclusively
preliminary in character. The situation today is quite different, since
neither Canada nor Spain has submitted a memorial to the Court on the
merits. And the two cases differ in many other respects, to the point at
which any comparison becomes artificial. Spain has not altered the subject
of the dispute since it filed its Application. Canada has not undertaken,
either directly to Spain, or by making a unilateral declaration as France
did in 1974, to cease in future applying its domestic legislation to
vessels on the high seas. The subject of the dispute as set out in the
Spanish Application has remained as it was and no further element whatsoever
has emerged on either side. The Court should therefore have decided the
question of its jurisdiction in the light of that subject and none other.
40. Turning now to the case concerning Maritime Delimitation and Territorial
Questions between Qatar and Bahrain, mentioned in paragraph 31 of the
Judgment, it is not difficult to see that here too the situation was in no
way comparable with that of the present case. As the Court made it perfectly
clear in its Judgment of 1 July 1994 (I.C.J. Reports 1994, pp. 123-125,
paras. 33-38), there was already a text called the "Bahraini formula"
which described the whole of the dispute which the parties had agreed to
bring before the Court. Since the Application by Qatar, at whose instance
the Court was seised, contained only its own claims, the Court had still to
be seised effectively of the whole of the dispute. There was no question in
the Court's approach of its remodelling a "subject of the dispute", which
had already been clearly demarcated by the parties in a joint agreement;
yet that is what the Court is doing in the present case, under pretext of
"itself determining] the real dispute that has been submitted to it" (para.
31; emphasis added). In short, in the Qatar v. Bahrain case, the Court
simply ensured that the subject of the dispute, as agreed between the
parties, was respected in its entirety. The present case bears absolutely no
relationship with the Qatar v. Bahrain case.
***
41. Lastly, as regards the Court's power to determine its own jurisdiction
under Article 36, paragraph 6, of the Statute, that is to say, within the
limits of its sovereign discretion in relation to its own jurisdiction, it
must, as I have already pointed out, interpret the subject of the dispute,
but without in any way changing it, as the Respondent did. On this point,
the jurisprudence of the present Court's predecessor demonstrates admirable
caution. The Permanent Court of International Justice did not permit itself
either to alter, or even merely to "correct", the subject of the dispute
where the applicant State had formulated it inadequately, but merely asked
the Applicant itself to correct the subject of the dispute; on its failing
to do so, the Court simply refrained from determining the claim. This is
what occurred in the case concerning Certain German Interests in Polish
Upper Silesia, Jurisdiction (P. C.I. J., Series A, No. 7, pp. 34-35).
III. The Validity of the Canadian Reservation
42. It would be absurd to cast doubt, in any degree, on the sovereign power
of a State to maintain or amend, whether by restricting or by extending it,
a declaration of acceptance of the Court's jurisdiction, or to withdraw it
altogether whenever it wishes always subject, of course, to compliance
with the procedure (and in particular any prior notice) established by that
State itself in its declaration. Doctrine and jurisprudence are unanimous on
this point. As Sir Arnold McNair wrote: "A state, being free either to make
a Declaration or not, is entitled, if it decides to make one, to limit the
scope of its Declaration in any way it chooses" (quoted in the
Counter-Memorial of Canada, p. 24, para. 50; emphasis added). The language
used by Canada in paragraph 3 of its most recent declaration of 1994 clearly
expresses, moreover, the undisputed right of a State "to ... at any time . .
. add to, amend, or withdraw any of the foregoing reservations, or any that
may hereafter be added" and, one might add, to do likewise in respect of any
declaration it has made.
43. However, a State's freedom to attach reservations or conditions to its
declaration must be exercised in conformity with the Statute and Rules of
Court, with the Charter of the United Nations, and more generally with
international law and with what I may venture to call "I'ordre public
international". Just as the acts of a State, and more generally its conduct,
in whatever area of international relations, must conform to existing
international legal norms, so the formulation of a reservation, which is no
more than one element of such conduct, must also comply with these norms.
44. Accordingly,
I do not see why the Court should hesitate to reject, or to declare [p
534]inadmissible, or not opposable, or even invalid or null and void, a
reservation the purpose or effect of which is to nullify or distort one or
more of the provisions of the Statute or Rules of Court which govern
international judicial proceedings, and to establish some sort of ad hoc
judicial procedure suiting or benefiting the author of the reservation
alone;
I do not see why the Court should hesitate to declare null and void and
invalid ab initio any reservation that prevents it from hearing proceedings
concerning genocide, slavery, piracy, or any other international crime;
I do not see why the Court should accept any "automatic" reservation so
formulated that only the State making it is empowered to decide whether or
not its conduct, or an act done by it, is covered by that reservation, thus
depriving the Court of the "power to determine its own jurisdiction"
provided for by Article 36, paragraph 6, of its Statute;
I do not see why the Court should allow itself to consider a reservation
which, while appearing to set specific limits to the Court's jurisdiction,
is in the final analysis incompatible with respect for the integrity of the
declaration as a whole, since, while international law undeniably confers
freedom of consent and the declaration implies recognition of the Court's
jurisdiction, a reservation made within this framework must also respect the
consistency and the integrity of the optional clause "system".
***
45. Under the optional clause "system", as currently structured within the
framework of the "international legal corpus" that is to stay, neither
total chaos nor an absurd "bric-a-brac" (Jean Combacau) which we call
"international law", a State's freedom is immense, but cannot be regarded as
boundless. Anyone is free to join a club or not, but he who does so must
accept the rules governing the club's activities.
46. In joining the optional clause "system" through its declaration, a State
enters freely into a network of specific rights and obligations. It is
perfectly clear that its declaration is not totally devoid of implications
for the scope of its rights and obligations. In this respect the declarant
State will obviously enjoy vis-a-vis the Court to which the declaration is
addressed and as regards the other declarant States less freedom than a
State which has not accepted the Court's jurisdiction. In short, it has
obligations vis-a-vis the clause "system" those currently or potentially
participating in it and also to the party to whom that clause is
ultimately addressed, namely the International Court. It is not entitled to
provoke the implosion of a "system" to which it now owes duties, the
counterpart of which are the rights it derives from it. The possibility of
withdrawing from the system remains fully open to it, but what is not [p
535]
acceptable is that the declarant State should distort or pervert the system,
or compromise its existence or its functioning, and yet remain part of it.
***
47. This case inevitably engenders a certain unease. These were events which
occurred over a specific period of two days, 10 and 12 May 1994, during
which, almost simultaneously, Canada formulated its reservation thus
barring any action by the Court lodged a Bill with Parliament and had it
adopted. There is every reason to think that, in so acting, Canada wished to
protect itself in advance against any application to the Court, so as to be
completely free to follow a particular line of conduct, over whose legality
it had certain doubts. Without any consideration of the merits of the case
something we are not entitled to do at the present, jurisdictional phase of
the proceedings it is clear that this hypothesis is a reasonably credible
one. Canada itself, in an official news release dated 10 May 1994, the day
on which the new declaration with its reservation (d) was deposited, stated
the following:
"Canada has today amended its acceptance of the compulsory jurisdiction of
the International Court of Justice in the Hague to preclude any challenge
which might undermine Canada's ability to protect the stocks." (Emphasis
added.)
As the Spanish Memorial states, Canada's purpose in this reservation was to
"secure itself against any judicial rejection of. . . such measures". What
is more, one of Canada's counsel gave a particularly clear description of
this "special period" when he said:
"The exact coincidence in timing of Bill C-29 and the new declaration
demonstrates that the reservation was deliberately designed to exclude Bill
C-29 and everything done in or in connection with it from judicial
settlement" (CR 98/11, p. 44, para. 63; emphasis added.)
And the same counsel reiterated:
"Canada amended its declaration . . . [on] exactly the same day it
introduced into Parliament an Act on . . . [fisheries]. . . The intimate
link between these two instruments was and is absolutely transparent." (CR
98/14, p. 51, para. 7; emphasis added.)
48. In short, the Canadian Government the discussions in Parliament on
Bill C-29 made this clear wished to have a free hand and sought to avoid
the risk of losing a case before the Court in respect of action in the NAFO
Regulatory Area, i.e., on the high seas. There is little doubt that the
legislation adopted had the specific purpose of enabling Canada to intervene
beyond the boundary of its national maritime juris-[p 536]diction. This is
the main objective of the Act of 12 May 1994, as Article 1 of the Act
states. Another Canadian counsel stated:
"The measures are perfectly ordinary conservation and management measures,
and the only thing that makes them different is where Canada applied them,
in the NAFO Regulatory Area and therefore, beyond two hundred miles. But
that of course is the whole rationale for the reservation." (CR 98/12, p.
14, para. 66; emphasis added.)
And the Agent of Canada was clear and specific, before the Court, on this
crucial point. This leaves no doubt that Canada knew that, in the absence of
any appropriate reservation in its declaration, it ran the risk of
condemnation by the Court for any intervention on the high seas against a
foreign vessel, since apparently it had doubts as to the legality of such
intervention. So much so that one of Spain's counsel asserted:
"[It is a wrongful act] 'with premeditation'! A State may prepare [for it].
Then it may take the necessary steps to escape the court; and, thus [it
acts] assured of impunity." (CR98/10, p. 37, para. 1; emphasis added.)
49. This is not what one might have expected of a country like Canada, which
for the last 70 years has set an example of its attachment to the Court's
jurisdiction and its respect for international law. Nor is it a welcome
situation for Canada's traditional NAFO partners, or for the international
community or, indeed, for the optional clause "system" and the Court itself.
The latter has, most regrettably, failed to recognize that reliance on a
reservation, in circumstances where a State wishes to undertake specific
acts of doubtful international legality, risks seriously damaging the
credibility of the optional clause "system".
50. I therefore regret that the Court did not reject, or even hold null and
void, a reservation whose obvious purpose, when read together with a piece
of domestic legislation, was to permit encroachment upon an essential
freedom of international law, both past and present, without fear of
judicial intervention. Canada admittedly with legitimate concern for the
conservation of fishery resources unfortunately yielded to temptation and
took a regrettable legislative initiative with a view to an operation on the
high seas, believing it could escape judicial sanction by simultaneously
notifying the international community of a new reservation adopted for
purposes it feared might be illegal.
Such a reservation could not and should not be accepted by the Court.
51. The Canadian reservation (d) is damaging to the optional clause
"system". A better and perfectly clear position would have been as fol-[p
537]lows: either Canada should have withdrawn its declaration completely in
1994, provisionally and for the period required for its fisheries
conservation policy, or the Court should now, in its present Judgment, in
1998, have rejected reservation (d). The situation created by the
maintenance of the declaration subject to the reservation represents the
least satisfactory solution for all concerned: Canada, other declarant
States and the International Court of Justice.
52. The backbone of the optional clause "system" consists in good faith
among declarant States. Upon this principle depends the freedom of a State
to formulate a reservation. If, for reasons of domestic or international
policy, which may of course be perfectly legitimate, a declarant State finds
itself in difficulty as a result of the terms of its declaration, it should
temporarily withdraw that declaration for the period required by the
political action which it contemplates, rather than attach to the
declaration / am tempted to say encumber and undermine it a
reservation intended to cover a purpose which might very well be regarded
as unlawful. It may not on the one hand set out to accept the Court's
jurisdiction for a wide variety of disputes, given the broad terms of its
declaration, while on the other seeking simultaneously to escape judicial
scrutiny (which its declaration has clearly demonstrated that it wishes to
accept) in respect of a specific class of acts protected by its reservation
where it doubts their legality.
53. First, this situation stemming directly from reservation (d) places
the consistency of the declarant State's conduct under internal "strain".
Next, it undermines the optional clause "system" from within, risking its
implosion, since it robs the system of the good faith which is its very
life-blood. According to a maxim of French civil law, "donner et retenir ne
vaut" (you cannot both give and take back). A declarant State cannot take
away with one hand what it has given with the other. It cannot swear fealty
to international justice by submitting itself to the latter's verdict in
respect of those acts where it considers it has behaved correctly, while
shunning that same justice in the case of those acts whose legality it fears
may be questionable. It is not possible for a declarant State to remodel the
philosophy of the clause "system" in this way, still less to bend the
"system" to suit its own conflicting requirements, or to mix two
incompatible aims.
54. But Canada is not the only victim of its own choice a choice which
tarnishes the bright image of a State committed for the last 70 years to the
ideal of international justice. Nor is it only the clause "system" which
suffers. The Court itself, in holding that it lacks jurisdiction, lays
itself open to a degree of damage. The saying is that "lack of jurisdiction
does not imply legality", i.e., the Court in no way endorses Canada's
conduct by declaring that it lacks jurisdiction in regard to that conduct.
That is true, but psychologically the impact is disastrous. Was there really
no other way than to embarrass the Court, which clearly discerns illegality
in Canada's conduct on the high seas, but must nonetheless play Pontius
Pilate and wash its hands of the case? This is an unwelcome [p 538]
situation for a court which knows that it must render justice but cannot do
so.
55. This is not the end of the harm caused by reservation (d). Declarant
States also suffer. A State is of course free to formulate reservations;
from this the Court proceeded to the conclusion that, had it refused to
recognize the reservation on the basis of which it accepted the
Respon-dent's claim that it had no jurisdiction the clause "system" would
have been severely prejudiced. To disregard a declarant State's inviolable
right to make reservations would be to undermine the structure of the system
and discourage States wishing in the future to make a declaration of
acceptance. This, it was said, would be the speedy ruin of the clause
"system".
56. This argument fails on two accounts. First, the idea that States will be
discouraged stopped in their tracks in their rush to make a declaration
because, for once, a judgment of the Court has rejected an incompatible and
potentially hazardous reservation, seems to me pure fantasy. Unfortunately,
more than two thirds of today's States, for reasons which I to some extent
understand, flatly reject the idea of making a declaration and, whatever the
Court does, will probably never accept its compulsory jurisdiction, despite
the blessing bestowed by the Court to a quiet unreasonable degree upon
the right to make reservations, and the over-whelming enthusiasm displayed
by the Judgment for the Canadian reservation in particular.
The second point is even more important: we should not consider merely the
position of States which have yet to accede to the optional clause "system".
We must not forget those States which have already made a declaration and
which participate in the clause "system". Is it right for these States,
which through the "system" are working for stability, foreseeability and
security in legal relations, that other declarant States should hastily
formulate a reservation whenever they encounter a problem? Is this the best
they can hope for in their legitimate expectations for the security of
their relations with other declarant States? Does this not jeopardize the
stability of the entire optional clause "system"?
57. Nor should we forget that this is the second time Canada has introduced
a reservation in order to escape the Court's jurisdiction in situations
involving the freedom of the high seas. This time, however, it is to be
feared that the Court has endorsed Canada's action, given that, in holding
that the Court lacks jurisdiction, the Judgment has failed to take adequate
precautions or to issue any kind of caveat.
58. In concluding these remarks on the issue of the validity of the Canadian
reservation (d) and bearing in mind that in my opinion Canada would have
been better advised to withdraw its 1985 declaration entirely rather than
replace it by the declaration of 1994 with its reservation (d), which is
incompatible with the declaration itself I would [p 539] point out that in
the present case the Court has found itself the focus of a somewhat
sensitive combination of circumstances. It is no secret that Canada, which
has always played a major part in the milestone international conferences
on the road to the creation of the new legal order of the sea, and which
pursues a very active, some would even say aggressive, fisheries policy, is
dissatisfied with the law of the sea as it stands and wishes to press on
with reforming it, notably with a view to the enjoyment by coastal States
of "preferential rights" in matters of fisheries conservation and
management. It has then proceeded, while invoking in certain fora the idea
of a "state of need", or simply of "emergency", to the point of breaking the
existing law in order to secure "progress" in this regard on the part of
other States. The Court has of course no bounden duty either to encourage or
to discourage this strategy. The formative process of a new international
legal norm need not involve wrongful conduct designed by its author to
induce other States to negotiate a new law. The decision by the majority
that the Court lacks jurisdiction must not be taken to mean that the Court,
the guardian of international legality, offers any encouragement whatever to
this strategy.
***
59. It seems to me that the Applicant was reluctant to take its criticism of
the Canadian reservation (d) to its logical conclusion. In its final
submissions it did not go so far as to claim that the reservation was a
"nullity". Should we welcome this caution, on the argument as is
sometimes proposed that nullity of the reservation would have entailed
that of the entire declaration, which would have confirmed even more
forcefully the Court's lack of jurisdiction in this case?
60. Let me begin by saying that, all in all, I would have preferred a
situation in which the Court had taken the clearer and possibly sounder
course of founding its lack of jurisdiction on the nullity of the
declaration as a whole, rather than on reservation (d) alone.
In any case, it is far from certain that the nullity of a reservation
entails ipso facto that of the entire declaration; common sense, for one
thing, tells us otherwise. A reservation restricts the field of consent
given by the declaration. A field with ill-defined boundaries is still a
field. But most importantly, case-law, doctrine and State practice are in
accord that, looking beyond the sui generis nature of a declaration, the
principles and rules peculiar to bilateral or multilateral acts, i.e., to
treaties, should be applied mutatis mutandis to this unilateral act. And
treaty law, as codi-fied in 1969, enshrines in Article 44 of the Vienna
Convention admittedly with certain exceptions the principle of
separability of the various provisions contained in a treaty. I really
cannot see why a declaration should wholly escape this principle.
61. This issue has in fact been raised in a number of cases, including [p
540] the Norwegian Loans and Interhandel cases, and some judges have evoked
and accepted the principle of separability (cf. Norwegian Loans, l.C.J.
Reports 1957, p. 55-59; Interhandel, I.C.J. Reports 1959, pp. 57, 77-78,
116-117).
At the regional level too, the European Court of Human Rights, for example,
has found occasion to apply the principle of separability by striking down
reservations in respect of certain provisions in the European Convention
for the Protection of Human Rights and Fundamental Freedoms, without
invalidating in their totality declarations of acceptance of the
jurisdiction of the Strasbourg Court in respect of disputes concerning the
Convention (cf. Loizidou v. Turkey, Preliminary Objections, Judgment of 23
March 1995).
By way of comparison, it should also be observed that the principle of
separability is fully accepted in international commercial arbitration, in
so far as treatment of the arbitration clause is deemed to be independent of
that of the other provisions in the agreement.
***
IV. The Definition of "Conservation and Management Measures"
62. The question of the "applicable law" for purposes of defining the
expression "conservation and management measures" has taken on great
importance in this case.
63. Spain argues that there is no dispute between itself and Canada about
fishing, rather that the case concerns Canada's legal entitlement to take
"measures" on the high seas against Spanish vessels, on the pretext of
enforcing "conservation and management measures". The applicant State doubts
whether the Respondent has any such entitlement and asks the Court to
consider the merits of the case in order to answer the question. Moreover,
Spain considers that reservation (d) does not constitute a bar to the
Court's jurisdiction, since it excludes only "conservation and management
measures" from such jurisdiction, and not the issue of Canada's title to act
on the high seas. For Canada, on the other hand, such measures include all
conservation and management measures, whatever the geographical location
where their impact is felt, which is ultimately to say, whether or not they
are in accordance with international law.
64. The extent of this conflict of views between the parties is evident, as
is the significance of the definition of "conservation and management
measures". In short, Canada takes the view that this expression has a purely
technical, common-sense meaning, whereas Spain contends that it must be
given the meaning now attaching to it under international law. [p 541]
541
65. For my part, I remain convinced that the term can be interpreted only
within the framework of international law. And since, in these
circumstances, the definition and content of the phrase can be fully
ascertained only at the merits stage, it follows that only then would the
Court be in a position to determine whether the Canadian legislation and the
resultant actions against Spanish vessels come within the international
definition of such measures and their enforcement, and hence are excluded
from the Court's jurisdiction by virtue of reservation (d). In other words,
this is a case where Article 79, paragraph 7, should have been applied, with
the result that examination of the definition and precise content of
"conservation and management measures" would have been postponed to the
merits stage, these being matters not having an exclusively preliminary
character.
***
66. I welcome the statement by the Judgment, in paragraph 69, that the
expression must be defined "in the light of international law".
Unfortunately, having said this, the Judgment then falls back on a
definition based on technical characteristics, as propounded by Canada, thus
returning us to the starting-point. I regret that the Court felt able to
take the view that it was entitled, at the jurisdiction stage of the case,
to arrive at hasty conclusions concerning the "factual and scientific
criteria" said to characterize the expression "conservation and management
measures", and to do so on the basis of widely differing sources, including
legislation from various countries which was neither presented
systematically nor analysed in any depth. The Court's purpose here was to
seek to satisfy its minority with a mere form of words, confining itself to
a technical definition that allowed it, at this stage of the proceedings,
to dispose of the issue of the exclusion from the Court's jurisdiction of
the measures taken against the Estai and other vessels. Paragraph 70 of the
Judgment states that for a measure to be a "conservation and management
measure" within the meaning of the Canadian reservation (d), "it is
sufficient" that the purpose of the "measure" is to conserve and manage
living resources and that it satisfies various technical requirements. This,
in reality, is not a legal approach but a purely "factual" one, that has
little to do with international law, which the Court is pledged to apply.
***
67. Canada's reservation (d) refers to "conservation and management
measures" taken or enforced by it in relation to fishing vessels in the
"NAFO Regulatory Area". The Court thus had to interpret this expression in
order to define the scope of reservation (d). It may be helpful to recall
that in 1970 Canada made a similar albeit not identical reservation [p 542]
in relation to the Arctic, which referred to the "conservation, management
or exploitation of the living resources of the sea".
68. In defining the expression "conservation and management measures"
contained in its reservation (d), Canada did not refer to its newly amended
domestic legislation. Admittedly, that legislation was adopted two days
after Canada had deposited its new declaration containing the reservation.
This however posed no technical obstacle, had Canada genuinely wished to
refer to this legislation which in Bill form was tabled simultaneously
with its notification of the new declaration. In fact, the reservation
contains no definition of the measures in question. By con-trast, in
defining the geographical scope of the reservation, Canada referred to an
international treaty, the NAFO Convention. This was already an indication
that the expression "conservation and management measures" a vital
objective of the Convention should in the interests of consistency be
construed in the light of international law.
69. It should also be noted in this regard that a "Fisheries Commission",
set up under the NAFO Convention, operates within the Regulatory Area
defined in that Convention. Hence the "conservation and management
measures" adopted by Canada in that same geographical area are additional to
those adopted by this international body. It therefore cannot be right to
have recourse to Canadian law which is not mentioned at all in the
reservation in order to define such measures where they have been taken by
Canada, whilst identical measures in the same area fall to be interpreted by
reference to international law when they result from the activity of the
NAFO Fisheries Commission. We may note in passing although this is an
issue whose solution is for the merits of the case that here too Canada's
legal title to take such measures appears to be in question, since this is a
matter apparently entrusted by treaty to an international body. The NAFO
Convention, which gives States the right to object to any measures to be
adopted by the Commission, does not in any way encroach upon the rights of
flag States in the NAFO Regulatory Area, since such measures are taken in
co-operation with the States concerned. This is a clear indication that it
is not possible to interpret the "conservation and management measures"
taken by Canada in a manner totally different from that applicable to
similar measures taken in the same zone by NAFO bodies.
70. Moreover, as I have already pointed out, Canada did not specify in
reservation (d) what it meant by "conservation and management measures". If
we accordingly look simply to the objective intention of the declarant
State, it would not be unreasonable to take the view that it wished this
expression to have the meaning that it has in international law all the
more so, we must remember, in that this reservation by Canada was addressed
to the community of those other declarant States participating in the
optional clause "system". Furthermore, in seeking to [p 543] give this
expression the meaning which it claimed for it, Canada itself cited the
decision in the Aegean Sea Continental Shelf case, in which the term
"territorial status" was interpreted not by reference to Greek domestic law
but in accordance with international law.
***
71. Contrary to what the Judgment states, the notion of "conservation and
management measures" cannot be confined to simple "factual" or "technical"
matters, but has to be taken to refer to those types of measure which the
"new legal order of the sea" has been gradually regulating, with the result
that such measures now constitute an objective legal category which cannot
be other than part of international law. The expression "conservation and
management measures" of the living resources of the high seas was the
accepted one throughout the Third United Nations Conference on the Law of
the Sea and was enshrined in the final text of the Montego Bay Convention of
10 December 1982, specifically in Articles 116 to 120, and also in Article
63 on straddling stocks and Articles 64 to 67. The expression "conservation
and management measures" thus received international recognition in what
the preamble to the Montego Bay Convention calls the new "legal order for
the seas and oceans". And it is this new order which, through the 1982
Convention and its supplementing instruments, has been treated by
international jurisprudence and by State practice as the current expression
of the opinio juris.
72. The Montego Bay Convention, which admittedly has not yet been ratified
by Canada but to which it nonetheless referred before the Court (which
itself also referred to it, in particular in paragraph 70 of the Judgment)
provides in Article 62, paragraph 4, that the "laws and regula-tions"
enacted by a coastal State for conservation purposes in its exclusive
economic zone must respect the rules of the Convention itself. Thus the
international law of the sea does concern itself with the nature of
"conservation and management measures", even in relation to a fishing zone
which is under the jurisdiction of a coastal State. Such a provision would
lack consistency if, on the high seas, a coastal State remained free to take
"conservation and management measures" which conflicted with international
law. Articles 117 to 119 of the Montego Bay Convention do in fact contain
detailed rules for co-operation among States in establishing such measures
for the high seas and for promoting its organization and functioning. It is
therefore by reference to the international law of the sea that we must view
the "conservation and management measures" of the Canadian reservation (d).
***
73. A definition of "conservation and management measures", or [p 544]
essential elements of it, appears in numerous international instruments
subsequent to the Montego Bay Convention of 1982.
74. However, before I cite them to illustrate my point, we must not forget
that the definitional elements of these measures and the conditions for
their enforcement (through co-operation) were already present in 1978 at a
time when freedom of fishing on the high seas was less restricted in the
NAFO Convention itself, whose object, as stated in Article II (1), is "to
contribute through consultation and cooperation to the optimum utilization,
rational management and conservation of the fishery resources of the
Convention Area".
75. I would refer first to the Agreement to Promote Compliance with
International Conservation and Management Measures by Fishing Vessels on
the High Seas, adopted by the FAO Conference on 24 November 1993 at its
twenty-seventh session in resolution 15/93. Article I (b) provides that:
"'international conservation and management measures' means measures to
conserve or manage one or more species of living marine resources that are
adopted and applied in accordance with the relevant rules of international
law as reflected in the 1982 United Nations Convention on the Law of the
Sea. Such measures may be adopted either by global, regional or subregional
fisheries organizations, subject to the rights and obligations of their
members, or by treaties or other international agreements" (emphasis added).
76. This provision thus not only supplies both the definitional elements and
the content of such measures, but also states who may adopt them. Arguing a
contrario, this provision would appear to preclude a State altogether from
taking such measures itself on the basis of its own domestic law, where it
intends them to be applied on the high seas, which is governed by the
Agreement. A State may "receive" such internationally defined measures into
its domestic law and must provide for their enforcement. It is interesting
to note, for purposes of the present case, that this position finds
confirmation in the second paragraph of the preamble to the Agreement, which
provides that it is "under international law" that "all States" are to take
"such measures . . . as may be necessary for the conservation of the living
resources of the high seas" (emphasis added).
77. In Article IX of the Agreement, "Settlement of Disputes", there is an
express reference in paragraph 3 to the "rules of international law relating
to the conservation of living marine resources". Moreover, scattered
references throughout the Agreement describe the measures which concern us
here as "international conservation and management measures" (see the sixth
and eighth recitals of the preamble and Articles V (1), VI (8) (a) and (b),
VIII (2) and VIII (3).
78. As regards the Code of Conduct for Responsible Fisheries, adopted by the
FAO Conference at its following (twenty-eighth) session on 31 October 1995,
a reading of the text reveals the following characteristics: [p 545]
79. (a) The entire Code is built around the guiding principle that the State
cannot take conservation and management measures except in areas under its
jurisdiction; in the case of the high seas, such measures are described as
"international" and they are not to be construed by ref-erence to a State's
domestic law. It is the international Code which defines such conservation
and management measures. The following quotations from the Code inter
alia clearly demonstrate this:
"This Code sets out principles and international standards of behaviour .
. . with a view to ensuring the effective conservation, management and
development of living aquatic resources." (Preamble.)
"This Code is voluntary. However, certain parts of it are based on
relevant rules of international law, including those reflected in the United
Nations Convention on the Law of the Sea of 10 December 1982 . . . [and in]
other . . . legal instruments . . . such as the Agreement to Promote
Compliance with International Conservation and Management Measures by
Fishing Vessels on the High Seas, 1993, which, according to FAO Conference
resolution 15/93, paragraph 3, forms an integral part of the Code" (Art.
1.1).
"The Code is global in scope" (Art. 1.2) and "provides principles and
standards applicable to the . . . management and development of all
fisheries" (Art. 1.3).
More generally, the objectives of the Code are to "establish principles,
in accordance with the relevant rules of international law, for . . .
fishing" (Art. 2.1) and "serve as an instrument of reference to help States
to establish or to improve the legal and institutional framework required
for the exercise of responsible fisheries" (Art. 2.3). (Emphasis added in
each case.)
80. (b) The Code states on numerous occasions that measures for
"conservation and management of fisheries resources" are "international
measures" established "in accordance with international law".
The measures concerned are "international conservation and management
measures" (Art. 7.8).
In regard to co-operation among States, the Code speaks of "international
standards for . . . living aquatic resources conservation" and of their
"effective implementation" (Art. 11.2.11). It provides that "States should,
in accordance with international law, . . . cooperate to establish systems
for monitoring, control, surveillance and enforcement of applicable
measures . . ." (Art. 8.1.4).
Article 6, "General Principles", contains an illuminating and helpful
provision in relation to the present Judgment:
"6.10. Within their respective competence and in accordance with
international law . . . States should ensure compliance with and [p 546]
enforcement of conservation and management measures and establish effective
mechanisms, as appropriate, to monitor and control the activities of fishing
vessels ..."
And in Article 6.12 the Code invites States to co-operate subject to the
same limits of the law, and in particular recommends them to curb their
power to take domestic measures, so as to ensure their compatibility with
international measures for the high seas:
"6.12. States should, within their respective competence and in accordance
with international law, cooperate ... to promote conservation and
management ... of living aquatic resources throughout their range of
distribution, taking into account the need for compatible measures in areas
within and beyond national jurisdiction." (Emphasis added.)
The same notion governs the special issue of "straddling stocks", "highly
migratory" fish stocks and "high seas" fish stocks:
"7.3.2. . . . conservation and management measures established for such
stocks in accordance with the respective competence of relevant States . .
. should be compatible. Compatibility should be achieved in a manner
consistent with the rights, competence and interests of the States
concerned." (Emphasis added.)
81. (c) The Code even specifies the means to be employed in its
interpretation (and also in its application), which, it states, is to be
that resulting from "international law":
"3.1. The Code is to be interpreted and applied in conformity with the
relevant rules of international law ..."
"3.2. the Code is also to be interpreted and applied:
(a) in a manner consistent with the relevant provisions of the Agreement
for the Implementation of the [Montego Bay] Convention Relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks;
(b) in accordance with other applicable rules of international law . . .;
(c) in the light of the 1992 Declaration of Cancun, the 1992 Rio Declaration
on Environment and Development, and Agenda 21 adopted by the United Nations
Conference on Environment and Development (UNCED) . . . and other . . .
declarations and international instruments." (Emphasis added.)
Hence the entire arsenal of legal weapons employed in interpreting (and
equally in applying) the notion of so-called "international" conservation
and management measures derives from international law. [p 547]
82. (d) It now remains to be seen how the Code defines such conservation
and management measures in practice and how it interprets them. Obviously,
it refers to the technical characteristics whereby such measures are
defined internationally, but it also includes in the definition matters of
a social, economic or institutional nature, which go beyond the purely
technical aspects, thereby necessarily making the definition an
international one, having regard to the diversity of social, economic and
institutional factors in the various States concerned, which it then
supplements with the standardized technical elements. Not until Article
7.6.9 is there any mention of "technical measures related to fish size, mesh
size or gear, discards, closed seasons and areas and zones reserved for
selected fisheries", protection of "juveniles and spawners", and in more
general terms the "performance of . . . fishing gear, methods and practices"
(Art. 7.6.4), the use of which must be "selective, environmentally safe and
cost effective". And even these technical measures cannot be defined
unilaterally, since they are the outcome of State practice and co-operation
(see Article 8.5 on fishing gear selectivity). It is this co-operation among
States that has been instrumental in defining and agreeing these
internationally standardized technical norms (see Article 8.5.4 relating to
research programmes for fishing gear selectivity and "fishing methods and
strategies", and to "dissemination of the results of such research
programmes and the transfer of technology").
83. Before referring to these various technical aspects these being
natural components of any definition of "conservation and management
measures", a definition which can only be international, given its gradual
emergence out of State practice and co-operation the Code, in Article
7.2.2, which deals with resource management objectives, sets out the other
aspects of the definition of such measures: "economic considerations" (Art.
7.2.2 (b)), "interests of fishers" (7.2.2 (c)), "biodiversity of aquatic
habits and ecosystems" (7.2.2 (d)), "adverse environmental impacts on the
resources" (7.2.2 (f)) and the need to minimize "pollution, waste" etc.
(7.2.2 (g)); while Article 7.4.5 lays emphasis on the "social and economic
objectives" and the "social, economic and institutional" factors.
84. In other words the definition of "conservation and management measures"
which are in any event international, whether or not expressly described
as such has two aspects: one technical, gradually developed
internationally through State practice and standardized in sys-tematic
fashion through State co-operation; the other "social, economic and
institutional", taking account of the particular characteristics of the
various States concerned; and the whole combines to produce a necessarily
international approach to such conservation and management measures.
85. It may be noted in passing that exactly the same spirit governs the [p
548] Kyoto Declaration and Plan of Action of 9 December 1995 on the
sustainable contribution of fisheries to food security, which reads:
"We the 95 States meeting in Kyoto from 4 to 9 December 1995 . ..
Declare that we should, without prejudice to the rights and obligations of
States under international law . . .
5. Take steps for effective application of the FAO Code of Conduct for
Responsible Fisheries, and consider becoming parties to the . . . Agreement
to Promote Compliance with International Conservation and Management
Measures by Fishing Vessels on the High Seas, and enact, correspondingly,
appropriate domestic legislation and regulations in a timely manner."
86. The Declaration calls on States, in defining the measures in question,
to increase "respect and understanding of social, economic and cultural
differences among States and regions in the use of living aquatic resources,
especially cultural diversity in dietary habits, consistent with management
objectives". And, moving well away from the purely technical element in the
definition of such measures, the Declaration calls for attention to be given
to "(iii) improvement in economic and social well-being" and "(iv) inter-
and intra-generational equity".
87. Numerous other international and regional instruments might be cited.
For example, the diplomatic conference held in Crete from 12 to 14 December
1994 on co-operation among States for the conservation of resources in the
Mediterranean referred to what it called a harmonized system of conservation
and management, something which cannot be envisaged under a definition
solely in terms of the domestic law of a particular State. And the
Barcelona declaration of 28 November 1995 on Euro-Mediterranean co-operation
itself referred to that system in a pro-vision for "appropriate follow-up
action in the legal sphere". I shall confine myself to citing only one
further regional instrument, the solemn declaration of 27-29 November 1996
by the European Union on the conservation and management of fisheries
resources in the Mediterranean, which itself refers to a very large number
of international conventions and declarations, revealing the wealth of
efforts being made towards international regulation. This solemn declaration
of the European Union considered it "essential to secure respect for
international measures for conservation and management of fisheries
resources taken by competent regional management organizations" and, in
paragraph 6, it too referred to the development "of a harmonized system for
conservation and management" at the Mediterranean level, and for that
purpose it set up "a group of legal and technical experts". [p 549]
88. The various international instruments discussed above are evidence that
the international community has increasingly felt the need to rationalize
and harmonize conservation and management measures in order to ensure that
those taken by a State in respect of its maritime zones are compatible with
those adopted by the international community in respect of the free zones of
the high seas. These instruments appeal to all States to see to it that
their legislation conforms to common criteria, identified and harmonized by
those instruments.
89. The United Nations Agreement on Straddling Fish Stocks and Highly
Migratory Fish Stocks, adopted on 4 August 1995, has not of course entered
into force, but it was signed by both Spain and Canada, on 3 December 1996
and 4 December 1995 respectively. Article 1, paragraph 1 (b), of the
Convention defined conservation and management measures as "measures to
conserve and manage one or more species of living marine resources that are
adopted and applied consistent with the relevant rules of international law
as reflected in the Convention and this Agreement".
90. Thus once again we find that the definition is not confined to
technical elements but also incorporates the very important element of
conformity with international law, which constitutes the prerequisite for
the legal characterization of conservation and management measures. In
para-graph 70 the Judgment divorces the technical aspects from the element
of conformity with public international law, dismissing the latter on the
pretext that it raises the problem of the legality of such measures, which
the Court cannot consider in the present phase. This reductionist approach
is totally unjustified. The element of conformity does indeed raise the
problem of the legality of the measures, but that is absolutely no reason
for excluding it from the definition, at a time when a very substantial body
of international instruments, including the 1995 United Nations Convention
mentioned above, demonstrates that the international legislator recognizes
such conservation and management measures which are moreover referred to
as "international" in light of various factors, both technical and legal.
The fact that the latter raise an issue of legality is totally irrelevant to
whether or not they should be included in the definition, which here serves
simply to identify the measures in question.
91. What is more, the Court's approach to this issue consists in a simple
assertion and this is undoubtedly the weakest point in its Judgment
that "the authority from which such measures derive, the area affected by
them, and the way in which they are to be enforced do not belong to the
essential attributes intrinsic to the very concept of conservation and
management measures". In this way the Court quietly disposes of the entire
subject-matter of the dispute.
92. In emptying of all legal content a definition which it seeks
nonetheless to present as a "legal" one, the Court appears to be saying
that the Canadian measures are routine technical measures which are accepted
and adopted worldwide. That is a serious assertion. For if this is what [p
550]
they are, any State, whether coastal or not, in order to be able to act as
and wherever it wishes, whether on the high seas or in areas under national
jurisdiction, will merely have to satisfy the technical requirements which
are identified in the Judgment (type of nets, regulation of catches, etc.).
What will then be left of the freedom of the high seas? For, once the Court
finds that it lacks jurisdiction, it will never have the opportunity to move
on to the merits stage, the issue of legality. If there is any sphere of law
in which the ratione loci aspect is of the greatest importance, it is the
law of the sea. It is not the issue of legality as such that I seek to raise
here; that would lay me open all too easily to the charge of pre-empting an
examination of the merits. What concerns me rather is the ratione materiae
aspect, that is to say, the definition of con-servation and management
measures.
93. The Judgment gives an incomplete and partial definition of conservation
and management measures which is contradicted by the international practice
of States in which it sought its basis. Nor does the Judgment take
sufficient account of the new approach embodied in the international concept
of "conservation and management measures", an approach which was already
evident at the First United Nations Conference on the Law of the Sea and
resulted in the Convention on Fishing and Conservation of the Living
Resources of the High Seas; it was then formalized in the Montego Bay
Convention, and had in fact been described as early as 1974 in the Court's
Judgment in the fisheries case:
"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." (Fisheries Jurisdiction
(United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 31,
para. 72; emphasis added.)
94. It is perfectly clear that this new approach could only be and indeed
has been an international one; otherwise the chaos created by overfishing
would have been replaced by chaos of a different kind that produced by
each State taking, as and wherever it thought fit, whatever conservation and
management measures it wished. To limit this advance to a simple
harmonization of the technical aspects of fishing, as the Judgment has
done, is to ignore the entire development, both now and over the last two or
three decades, in the law on conservation and management measures, a
process which gives judicial expression to a profound need on the part of
States for clarification, harmonization and co-operation. Such measures
cannot therefore simply be reduced to any act done by a State with regard to
its choice of conservation techniques, whilst ignoring the fact that these
measures now have to be incorporated into an international network of rights
and obligations which States have created for themselves. Here, economic
logic and legal logic have to combine [p 551] as indeed they do in all
international instruments in order to avoid the chaos both of uncontrolled
overfishing and of illegal regulation. Compatibility with international law
is an integral part of the international definition of conservation and
management measures; it is "built in". This is not to adjudicate on the
merits or to make any ruling on responsibility; it is simply to state that,
on a true interpretation of the expression "conservation and management
measures", the reservation cannot be upheld.
95. Paragraph 70 of the Judgment sets out to give the definition to be found
in "international law" of the concept of "conservation and management
measures", since it begins with the words: "According to international law,
. . .". But, strangely, it ends with a paragraph in which the Judgment
removes from that definition notwithstanding its claim to be a definition
under "international law" all references to the legal elements (such as
the status or identity of the author of the measures or the nature of the
maritime area affected by them), retaining only the technical and
scientific aspects. How could international law possibly supply such an
incomplete definition, which, taken literally, would appear to authorize the
violation of the most firmly established principle of this same
international law, namely freedom of the high seas? I cannot be persuaded
that I am touching here upon an issue going to the merits, that of legality.
In reality I have stopped short of that, and would simply point out that, on
the basis of the Judgment, international law is bent on a course of
self-destruction in supplying a definition which allows it to be so directly
violated. How is it possible to turn international law against itself in so
flagrant a manner?
96. It is this kind of approach which flaws the Judgment, including all
those paragraphs in which the issue of legality is so conveniently
dismissed, and especially paragraphs 54, 56, 79, 80, 85 and 87. Even
confining myself to paragraph 79, I find regrettable the Court's assertion
that "there is no rule of interpretation which requires that reservations be
interpreted so as to cover only acts compatible with international law . . .
[T]his is to confuse the legality of the acts with consent to jurisdiction
. . .". That would be perfectly correct if interpretation alone had been
involved. Here, though, it should not be the case that one constituent
element of an international definition is interpreted to the exclusion of
another, when an international legislator has made the latter a part of the
definition. All these elements are prerequisites for the process of
interpretation, which must look at them all, without exception.
97. It follows, therefore, that the Canadian measures relating to the high
seas cannot be interpreted on the basis of Canada's own internal legal order
for this in effect is what the Judgment has done since the definition of
conservation and management measures which the Judgment claims to draw from
international law has ultimately been reduced to a commonplace technical
definition the very same that underlies the Canadian legislation and its
implementing rules without any regard for respect of the principle of
freedom of the high seas. On the basis of its [p 552] reservation as thus
interpreted by the Judgment, Canada is protected against judicial scrutiny.
In reality, however, conservation and management measures fall to be
assessed solely by reference to international law. If this is so and it
cannot be otherwise then the Court was bound to declare itself competent
at this stage and to undertake an examination of the merits in order to
determine whether the measures taken against the Spanish vessels were in
fact conservation and management measures (see Article 79, paragraph 7, of
the Rules of Court).
(Signed) Mohammed BEDJAOUI.
[p 553]
DISSENTING OPINION OF JUDGE RANJEVA [Translation]
Summary Risk of jeopardizing the optional clause system Distortion of
the subject-matter of the main dispute.
Subject-matter of the dispute Judicial restatement of the subject of the
dispute as submitted by Respondent constitutes an action ultra petita.
Lack of relevance of the case-law relied on by the Judgment Interpretation
of the subject of the dispute by reference to the act of seisin Absence of
legal grounds for restatement of the subject of the dispute submitted in the
Application Article 40, paragraph 1, of the Statute of the International
Court of Justice Obligation on the Court to respect the integrity of the
petitum Claims on the merits and objections to jurisdiction Legal
impossibility of defining the final subject of the substantive dispute.
Distinction between real dispute and arguments or purported submissions to
be operated at the final phase of the proceedings Difficulty of ruling on
the causa petendi Preliminary proceedings and status of the subject of the
dispute.
Interpretation of the Canadian reservation Historical background to the
negotiations on the definition of "conservation and management measures"
under the 1995 Agreement Canada co-author of the first proposed amendment
incorporating the reference to international law for the purpose of defining
conservation and management measures Acceptance and scope of the
amendment co-sponsored by Canada Analysis of the concept of "conservation
and management measures" Absence of any international practice
inconsistent with the requirements of Article 1 (b) of the 1995 Agreement.
Twofold purpose of the reference in the definition of "conservation and
management measures" to the 1982 Convention: legality element relevant both
at merits stage and for purposes of definition in the preliminary phase
Role of law in the general legal definition of a concept Reference to
international law in the definition of terms used in a unilateral instrument
Dual nature of the unilateral act of reservation Network of
jurisdictional links between the parties to the optional clause Acceptance
when filing the Application of the conditions stipulated by the author of
the reservation Creation of conventional relations between Respondent and
Applicant International law as common frame of reference for the two
litigating parties.
Question raised in the context of the preliminary dispute? Respondent's
objection not specifically preliminary in character.
The esteem in which I hold the Court and my colleagues and the requirements
of a sound administration of international justice have led me, to my great
regret, to deliver a dissenting opinion, in which I give the reasons for my
negative vote on the operative part of the Judgment.
1. I sincerely hope that the present Judgment by the Court will not be
interpreted by commentators and readers as sounding the death-knell of the
optional clause system under Article 36, paragraph 2, of the Statute [p 554]
of the International Court of Justice. The approach adopted by the Judgment
is open to criticism and could damage the integrity of the system of
international jurisdiction, which is built on a consensual foundation.
2. In the first place, it would have been more appropriate in my opinion, as
far as the subject of the dispute was concerned, to have omitted certain
lengthy, autonomous arguments which have resulted in the nature of the
subject-matter of the substantive dispute being changed: in effect, in place
of the subject as it was defined by the Applicant, the Judgment has
substituted a different subject, without the support of relevant case-law.
To my mind, it mattered little whether the subject of the dispute was
interpreted broadly as the Applicant wished, or narrowly as the Respondent
contended; what needed to be determined at the preliminary stage was whether
or not the dispute came within the terms of the reservation formulated in
the declaration by the respondent Party.
3. In the second place, the respondent Party's interpretation of the
reservation is plainly unacceptable in so far as, even for preliminary
purposes, it confines its definition of "conservation and management
measures" to the material aspect, excluding any reference to the
international law component included in the definition of such measures in
various relevant treaty instruments; the definition of "conservation and
management measures" which is employed in the Judgment for purposes of the
interpretation of the Canadian reservation lacks an effective basis. The
Judg-ment invokes national practices, which are necessarily circumscribed by
the 200-mile area of sovereign jurisdiction; on the other hand, it is unable
to cite a single example of international practice inconsistent with the
generally agreed definition of such measures and constituting an opinio
juris.
I. Subject of the Dispute
4. Contrary to the reasoning of the Court in paragraphs 29 to 33, I consider
that none of the case-law cited to justify a judicial restatement of the
subject of the dispute as presented by the Applicant is relevant. The
finding set out in paragraph 35 is without precedent in the Court's
case-law: the Court has never declared itself competent to change the
subject-matter of a dispute, and if it had ever sought to do so, such a
decision would have been without legal foundation and ultra petita.
5. Although I consider this a subsidiary question for purposes of a decision
on the present preliminary issue, I consider it my duty to explain why I am
in disagreement, in view of the conclusions reached in the Judgment on this
point.
1. Lack of Relevance of the Case-law Cited
6. The Judgment cites a number of previous decisions of the Court to justify
its restatement of the subject of the dispute in relation to the sub-[p
555]ject of the substantive dispute as formulated by the Applicant. Analysis
of the precedents relied on shows that the conclusion reached in the
Judgment is open to question: there is no precedent which authorizes the
Court to change the nature or terms of the subject as denned by the
applicant; the Court has, according to the specific circumstances of
individual cases, adjusted the parameters of the dispute, but it has never
substituted a new subject for that submitted by the applicant in the
substantive dispute. The Court has never before taken such a categorical
stand as in paragraph 29 of the Judgment, where it states that: "the Court
cannot be restricted to a consideration of the terms of the Application
alone nor, more generally, can it regard itself as bound by the claims of
the Appli-cant". To facilitate understanding of the present paragraph, I
shall follow the order adopted by the Judgment.
(1) Territorial Dispute (Libyan Arab Jamahiriya/Chad)
7. The Court, contrary to what was stated in paragraph 29, was not seised of
a Special Agreement stricto sensu. The two Parties "agreed . . . that the
proceedings had in effect been instituted by two successive notifications
of the Special Agreement constituted by the Accord-Cadre of 31 August 1989"
(I.C.J. Reports 1994, p. 11, para. 8). However, it had been agreed between
the two Parties to describe as territorial the dispute between them over the
Aouzou strip. The respective claims of the Parties (concerning the size of
the disputed area) were so divergent that the Court was obliged to define
the area in dispute.
"18. The Court has been seised of the present dispute between Libya and Chad
by the notifications of the special agreement constituted by the
Accord-Cadre of 31 August 1989 . . .The Accord-Cadre described the dispute
between the Parties as 'their territorial dispute' but gave no further
particularization of it, and it has become apparent from the Parties'
pleadings and oral arguments that they disagree as to the nature of the
dispute . . .
19. Thus Libya proceeds on the basis that there is no existing boundary, and
asks the Court to determine one. Chad proceeds on the basis that there is an
existing boundary, and asks the Court to declare what that boundary is.
Libya considers that the case con-cerns a dispute regarding attribution of
territory, while in Chad's view it concerns a dispute over the location of a
boundary." (/. C.J. Reports 1994, pp. 14-15.)
In reality, however, there was no substantial difference between the Parties
on the merits. Indeed, whether the dispute concerned the location of the
boundary or whether it concerned attribution of territory, the real issue
was to establish the precise limits of the territory of each of the two
States. The Court acknowledged in principle that that was the case. [p 556]
(2) Nuclear Tests (New Zealand v. France)
8. In the Nuclear Tests cases, the Court held that it was entitled to
interpret the submissions of the Parties in order to ascertain the true
subject of the dispute and the object and purpose of the claim, taking into
account not only the submissions of the Applicant, but the Application as a
whole, the arguments of the Applicant before the Court, the diplomatic
exchanges brought to the Court's attention and public statements made on
behalf of the applicant Government. "If these clearly circumscribe the
object of the claim, the interpretation of the submissions must necessarily
be affected."FN1 The Court also made it clear that it had the power
---------------------------------------------------------------------------------------------------------------------
FN1
Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 263, para. 30,
and Nuclear Tests (New Zealand v. France), p. 467, para. 31.
---------------------------------------------------------------------------------------------------------------------
"to exclude, when necessary, certain contentions or arguments which were
advanced by a party as part of the submissions, but which were regarded by
the Court, not as indications of what the party was asking the Court to
decide, but as reasons advanced why the Court should decide in the sense
contended for by that party"FN2.
------------------------------------------------------------------------------------------------------------
FN2
Nuclear Tests (Australia v. France), l.C.J. Reports 1974, p. 262, para. 29,
and Nuclear Tests (New Zealand v. France), pp. 466-467, para. 30.
------------------------------------------------------------------------------------------------------------
9. In the first Judgment, Australia v. France, the Court's findings are to
be understood in the light of the following two points:
as France failed to appear in the proceedings, the Court of its own motion
and on the basis of Article 53, paragraph 2, of its Statute, had to satisfy
itself that the submissions that is to say the statements of what the
Applicant was asking it to decide were correct in law and in fact. There
was an element of doubt in this regard, because the submissions in the
Application contained two separate paragraphs, the second of which sought a
declaration on the law;
it was on the basis of the persistent conduct and consistent statements
of Australia, and nothing else, that the Court defined the subject-matter
of the dispute, distinguishing between the Applicant's claims and the
elements of the submission: contentions, arguments and reasons.
10. In the second Judgment, New Zealand v. France, the terms of the problem
are apparently somewhat different, taking into account the specific nature
of New Zealand's submissions. The Judgment set out to analyse the entire
subject-matter of the dispute, making a distinction between the origin of
the dispute and the original and ultimate objective in the following
passage:
"However, it is clear that the fans et origo of the dispute was the [p
557]atmospheric nuclear tests conducted by France in the South Pacific
region, and that the original and ultimate objective of the Applicant was
and has remained to obtain a termination of those tests." (7. C.J. Reports
1974, p. 467, para. 31; emphasis added.)
It is thus on the basis of the continuity and consistency of the attitude
and claims of the applicant Party that the Court founded its interpretation
of the subject of the dispute, without, however, going so far as to restate
the original subject. The Judgment interpreted the submissions of New
Zealand as formulated in the Application, confirmed by the constant and
consistent conduct of the Applicant and finalized in the submissions.
(3) Right of Passage over Indian Territory
11. In this case, the Court, in order to avoid being misled by a passage in
the Application entitled "Subject of the Dispute", which gave a restrictive
description of the subject-matter of the dispute, defined the subject-matter
by recapitulating the various claims already formulated in the Application,
the oral arguments and the submissions of the Parties.
(4) Maritime Delimitation and Territorial Questions between Qatar and
Bahrain
12. By agreement between the Parties, the subject of the dispute had been
denned in accordance with the "Bahraini" formula; Qatar, which had seised
the Court by application, presenting only its own claims, was not thereby
deprived of its procedural rights, notwithstanding that it had failed to
submit the dispute in its entirety; in an interlocutory Judgment, the
Parties were requested to present the subject of the dispute in its
entirety. In that case, the Court confirmed that the dispute submitted by
Qatar on 30 November 1994 was in exact conformity with the previous
agreements and decisions.
"As a consequence, it appears that the form of words used by Qatar
accurately described the subject of the dispute. In the circumstances, the
Court, while regretting that no agreement could be reached between the
Parties as to how it should be presented, concludes that it is now seised
of the whole of the dispute, and that the Application of Qatar is
admissible." (I.C.J. Reports 1995, p. 25, para. 48.)
It is thus clear, on the one hand, that the jurisprudence cited deals with
the interpretation of the subject of the dispute by reference to the terms
used in the act of seisin and, on the other hand, that such interpretation
has consisted in defining that subject in its entirety, without thereby
restating its terms. [p 558]
2. Absence of Legal Grounds for a Restatement by the Court of the Subject of
the Dispute Submitted to the Court by the Applicant
Neither Article 40, paragraph 1, of the Statute nor the incidental nature of
preliminary proceedings authorizes the Court to restate the subject of the
dispute.
(1) The provisions of Article 40, paragraph 1, are unambiguous
13. (a) The indication of the subject of the dispute in the document
instituting proceedings is a direct requirement under the Statute. This
requirement is independent of the means used to initiate the proceedings.
The most cogent interpretation of the notion of the subject of the dispute
is provided in two passages of the work by Stauffenberg, where he deals with
the notion of the subject of the dispute in relation to the text of Article
40 of the Statute of the Permanent Court of International Justice:
"This application determines the subject of the dispute. It was felt that
the word 'subject', a legal term, should be used as being more precise and
more useful, from the point of view of the res judicata, than the term
'nature' used in Article 30 of the five-Power plan" (Report of the Advisory
Committee of Jurists, p. 734, and Statut et Rιglement de la Com permanente
de Justice Internationale elements d'interpretation, Carl Heymanns Verlag,
Berlin 1934, p. 294);
"at the preliminary session, the deletion of the words 'an indication of the
claim' was proposed. They were deemed either redundant, since reference was
already made to an indication of the subject of the dispute, or erroneous,
since there were cases in which there was no claim but simply a request for
a statement of the law" (Statut et Rιglement de la Com permanente de Justice
Internationale elements d'interpretation, op. cit., p. 301).
The subject of the dispute is closely bound up with the "claim", the
petition, that is to say, the judicial recognition of a substantive right
claimed by the applicant party in a unilateral application.
14. (b) When proceedings are instituted by application, it is the applicant
who has the principal responsibility for defining the original subject of
the dispute. The petitum is formally set out in the application and
constitutes the only description of the subject of the dispute available to
the Court. As long as the respondent party has not itself formulated its
claims and its own petita on the merits, either in a counter-memorial (Art.
43, para. 2, of the Statute) or by way of counter-claim (Art. 80, Rules of
Court), it is with the subject of the dispute as described in the
application that the Court must deal. Until it makes a definitive
determi-[p 559]nation of the subject of the dispute, which it will do after
the respondent has filed its petita, the Court is bound to accept that it
cannot change the original subject of the substantive dispute: the Court can
rule only on the basis of that definition and may not alter its terms or, in
particular, violate the integrity of the petitum. In the exercise of its
power to clarify implicit claims, it is not entitled to modify the petitum
of the applicant. At the very most, it can find that there is no dispute on
the subject as set out in the application, or on certain aspects thereof;
but in stating that the real dispute is that presented in paragraph 35 of
the Judgment, the Court has altered the petitum of the Applicant and gone
outside the framework of the express terms of the Application, without
attempting to justify its reasoning on the basis of the actual actions and
conduct of the applicant Party. It is thus on the basis of an incomplete,
and therefore inaccurate, interpretation of the above-mentioned
jurisprudence that the Court reached the unacceptable conclusion that "more
generally, [it could not] regard itself as bound by the claims of the
Applicant" (see paragraph 29).
(2) It is the incidental character of preliminary proceedings on
jurisdiction and admissibility which, through the operation of paragraphs
5 and 6 of Article 79 of the Rules of Court, determines the scope and extent
of the relevant facts at the current stage of the proceedings
15. The Respondent relies upon the acts against the Estai as arguments and
grounds to establish the Court's lack of jurisdiction and the
inadmissibility of the Spanish Application. Those acts constitute neither
claims nor submissions on the merits; they are invoked in order to have the
substantive claim dismissed without consideration of the merits of the
dispute, by means of a challenge to the Court's power to adjudicate upon the
dispute submitted to it.
16. Not having before it the Respondent's petita on the merits, or its
submissions in defence, the Court cannot, at this stage, make a final
determination as to the subject of the dispute. At the present stage of the
proceedings, it is the combined effect of the substantive claim and the
Respondent's objection which determines the subject of the preliminary
dispute; the latter dispute is both distinct from and incidental to the
substantive dispute; this determination of the subject-matter is carried
out solely for the purpose of settling the preliminary dispute pursuant to
Article 79, paragraph 7, of the Rules of Court. Here, the Court has before
it only one claim, that of the Applicant as expressed in the initial
Application. This statement of the subject of the substantive dispute
remains binding upon the Court, which cannot, without affecting the
substance of the dispute, restate the petitum of the Applicant. In this
case, however, the Court has redefined the subject, citing, in paragraph 32,
a distinction between "the [real] dispute . . . and arguments used by the
parties to sustain their respective submissions on the dispute". [p 560]
(3) Real dispute and arguments used to sustain the Parties' submissions
(paragraph 32 of the Judgment)
17. On analysis, it is clear that the argument used in paragraph 32 to
justify the distinction between the real dispute and arguments used to
sustain submissions lacks probative force, having regard to the practice of
the Court and to the nature of the cause of action.
18. (a) It has been the consistent practice of the Court that the
distinction between the real dispute and arguments, or between submissions
and purported submissions, is made at the final stage of the proceedings,
during consideration of the merits of the dispute or at the time of a
pre-liminary decision to terminate the proceedings. This practice is readily
explicable on grounds of common sense and procedural considerations.
Obviously, one cannot speak of a dispute, in the true sense of the term, as
long as only the unilateral claims on the merits of one of the parties, the
Applicant in this instance, have been placed before the Court. Moreover, it
is only once the subject of the dispute has been conclusively and fully
defined that it is possible to extract, from the mass or totality of
contested issues, the precise subject-matter of the litigation: the points
of fact and law submitted to the Court for decision; in effect, it is on the
basis of the subject of the dispute that the Court must determine the
precise points upon which it may adjudicate. In the two Nuclear Tests cases
of 1974, the Court had to rule first on a question essentially preliminary
in character: whether or not a dispute existed. A decision that there was no
dispute would have made a ruling on jurisdiction pointless. The Court
distinguished true submissions from purported submissions by examining the
logical nexus between the Parties' various formal submissions. In those 1974
cases, in order to determine which of the submissions was not a true
submission, the Court had to consider the request for a declaratory judgment
in light of the subject of the substantive claim, which was the cessation of
atmospheric nuclear tests; it took the view that, in the circumstances of
the case, that claim had been met. Having regard to the substance of the
claim, the request for a declaratory judgment was rejected.
19. (b) In its exposition, in paragraph 34, of the relationship between the
factual and legal elements of the case, the Judgment stated what it
considered to be the cause or causes of Spain's claim. On closer analysis,
however, the problem can be reduced to the following question: in order to
give a ruling on jurisdiction or admissibility, should consideration be
given to the reasons for the applicant's claim? In reality, it is difficult
to determine precisely which of all the aforesaid elements would be capable
of supporting the claim brought by the applicant party, that is to say, the
causa petendi, when the adversarial proceedings on the merits have not even
commenced. This logical and procedural constraint explains why possible
causal links are discussed only in the context of the formal submissions,
these being the only definite data expressing the basic thinking of the
parties which can be known with certainty. In proceeding, at this [p
561]preliminary stage of the case, definitively to characterize the
contentious events and acts (see paragraph 34) in a manner at variance with
that put forward by the applicant Party in its Application, the Court
changed the Applicant's petitum. That is unacceptable.
20. At the close of the preliminary proceedings, the situation with regard
to the subject of the dispute could be described in the following terms. The
Court had before it, on the one hand, the major component of the
subject-matter of the dispute as defined in the claim set out in the
Application and, on the other hand, a set of facts and actions constituted
by "diplomatic exchanges, public statements and other pertinent evidence"
and relied on to support an objection by the respondent Party (see paragraph
31 of the Judgment). On the basis of this information, the Court, in its
Judgment, reached a finding which encompassed the dispute in its entirety.
However, as the final outcome of the proceedings in this case was the
definitive rejection of Spain's claim, the Judgment must be considered to
have examined the claim in terms of all possible characterizations and
hypotheses. This is not what it did here; instead, the Court restated the
subject-matter of the dispute proprio motu, without having completed its
preliminary examination of all possible hypotheses.
It follows that, in restating the subject of the dispute by comparison with
that set out in the Application, the Court ruled ultra petita.
21. In concluding this first section, I should like to draw attention to the
risks inherent in a decision of this kind:
(1) abandonment of the Court as a judicial forum, since there would be no
guarantee for States against the risk of a restatement, at the preliminary
stage, of the subject of disputes submitted by them to the Court;
(2) uncertainty as to the consequences for the rights of the litigating
parties: what, for example, is the measure of the res judicata in this case?
II. Interpretation of the Canadian Reservation
In interpreting the Canadian reservation, the Court proprio motu defined the
Canadian legislative measures as measures for the protection and management
of fisheries resources. The real issue to be determined is whether that
definition is adequate from the standpoint of international law.
1. Method of Interpretation of the Definition of "Conservation and
Management Measures"
22. The method followed by the Court in interpreting the reservation clause
was to give priority to the intention of Canada, which is perfectly proper
provided that intention is placed in the context of the system of [p 562]
optional declarations of acceptance of compulsory jurisdiction. In order to
do that, the Court accepted as correct in law the definition and
interpretation presented by the author of the reservation, notwithstanding
the various other legal instruments to which the two litigating States are
inter alia parties. At this stage in the proceedings, the task of the Court
was not to establish a prima facie definition of conservation measures, but
to ascertain whether all the conditions for what Canada characterizes as
conservation and management measures are satisfied.
23. Paragraph 70 of the Judgment restricts the definition of "conservation
and management measures" to their technical and factual dimension,
resulting in the Court giving its own definition, one at variance with that
expressly provided in the only two directly relevant international
instruments: the United Nations Agreement on Straddling Stocks of 1995 and
the FAO Agreement to Promote Compliance with International Conservation and
Management Measures by Fishing Vessels on the High Seas. This approach is
unacceptable: the Court did not confine itself to interpreting positive law,
but created law.
2. International Instruments Containing a Definition of Conservation and
Management Measures
(1) Historical background to the 1995 Straddling Stocks Agreement
24. The relevant international provisions are constituted by Article 1
of the Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 Relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks, hereinafter "the United Nations Straddling Stocks Agreement of
1995";
and of the Agreement to Promote Compliance with International Conservation
and Management Measures by Fishing Vessels on the High Seas, hereinafter
"the FAO Fishing Vessels Agreement of 1993".
Article 1 of each of these instruments, which contains definitions,
provides respectively as follows :
(a) United Nations Straddling Stocks Agreement of 1995:
" 'conservation and management measures' means measures to conserve and
manage one or more species of living marine resources that are adopted and
applied consistent with the relevant rules of international law as reflected
in the Convention and this Agree-ment".[p 563]
(b) FAO Fishing Vessels Agreement of 1993:
"'international conservation and management measures' means measures to
conserve or manage one or more species of living marine resources that are
adopted and applied in accordance with the relevant rules of international
law as reflected in the 1982 United Nations Convention on the Law of the
Sea. Such measures may be adopted either by global, regional or subregional
. . . organizations ... or by treaties or other international agreements".
25. A comparative examination of these two provisions is not without
interest in several respects. In the first place, the decisive influence of
the 1993 FAO Agreement on the Straddling Stocks Agreement when it came to
deciding whether to include the legal component in the definition. The
relevant law, as reflected in the 1982 Montego Bay Convention and in each
individual agreement containing a definition, is an intrinsic part of the
definition. Secondly, both agreements are treaty instruments for the
implementation of the 1982 Convention on the Law of the Sea. Finally,
although neither instrument was yet in force at the date of the present
Judgment, both Canada and Spain are parties to the Straddling Stocks
Agreement, having signed it on 4 December 1995 and 3 December 1996
respectively.
26. A review of the drafting history of Article 1 (b) of the Straddling
Stocks Agreement reveals the importance of the role played by Canada in
securing the express recognition, in the future agreement, of international
law as a component of the legal definition of "conservation and management
measures". On 14 July 1993, Canada was co-author of the first proposed
amendment, which provided for the inclusion of international law as a
component of the definition of "conservation and management measures". The
initial version of the draft Convention (A/CONF.164/ L.22), presented at the
fourth session, contained no provision defining "conservation and management
measures". It was on 14 July 1993, in proposal A/CONF.164/L.11, that the
delegations of Argentina, Canada, Chile, Iceland and New Zealand introduced
the reference to international law for purposes of the definition of
"conservation and management measures", in the following terms:
"(a) 'international conservation and management measures' means measures to
conserve or manage one or more straddling fish stocks or highly migratory
fish stocks on the high seas that are adopted and applied in accordance with
the principles of international law as reflected in the United Nations
Convention on the Law of the Sea and, in particular, such measures adopted
or approved by regional or subregional fisheries conservation organizations
or under regional fisheries conservation arrangements". [p 564]
The joint proposed amendment did not receive sufficient support to be
immediately included in the revised version of the draft; this reluctance on
the part of the negotiating conference explains why Japan pushed to have the
issue reopened, in March 1995, with the following formal amendment:
"Article 1, paragraph 1.
Add the following subparagraphs to the Chairman's text:
(c) 'international conservation and management measures' means measures to
conserve or manage one or more species of straddling fish stock(s) and
highly migratory fish stock(s) that are adopted and applied in accordance
with the relevant rules of international law as reflected in the Convention.
Such measures may be adopted either by global, subregional or regional
fisheries management organizations or arrangements, subject to the rights
and obligations of their members".
(This subparagraph was drafted drawing on Article 1, paragraph (b) of the
FAO Compliance Agreement)." (Mimeographed text with no symbol.)
27. Document A/CONF.164/CRP.6 dated 6 April 1995 includes for the first time
a positive-law definition of conservation and management measures in Article
1 of the revised draft:
"(a) 'conservation and management measures' means measures to conserve and
manage one or more species of living marine resources that are adopted and
applied consistent with the relevant rules of international law as reflected
in the Convention and this Agreement".
The final version followed the wording of the revised text (doc.
A/CONF.164/22/Rev.l), subject to a minor amendment, and ran as follows:
"(a) 'conservation and management measures' means measures to conserve or
manage one or more species of living marine resources that are adopted and
applied consistent with the relevant rules of international law as reflected
in the Convention and this Agreement".
28. Following this historical review, two points are worthy of note. First,
Canada's role in securing inclusion of the reference to international law in
the definition of the concept of conservation and management measures; this
was no mere standard clause, for 22 months had elapsed between formal
submission of the proposal and its incorporation in the [p 565] draft
agreement. Secondly, the notion of "international measures" of conservation
and management on the "high seas" had progressively retreated from view as
an autonomous concept; it was not included in Japan's proposed amendment or
in the final and definitive versions of the text of the Agreement; once
reference was made to the 1982 Convention, it had effectively become
redundant.
(2) Analysis of the concept of conservation and management measures, Article
1 (b) of the United Nations Agreement on Straddling Stocks
29. In formal terms, the fact that both Parties to the present dispute
signed this instrument is evidence of their acceptance in principle of its
provisions, at least as regards the legal definitions. Thus, the definition
contained in Article 1 of the Straddling Stocks Agreement represents a
common, reasoned expression of the current state of the provisions
considered to be most widely acceptable to subjects of international law.
Canada's own interpretation of the concept of "conservation and management
measures", dating back to July 1993, regards the reference to international
law as an intrinsic part of the definition; moreover, this Canadian
interpretation was given well before the events relating to the present
dispute: the amendment to the Canadian Coastal Fisheries Protection Act (12
May 1994), the incidents involving the Estai (9 March 1995), and indeed the
deposit of the new declaration of acceptance of compulsory jurisdiction (10
May 1994). Contrary to what might have been expected from Canada, in view of
the sequence of events in connection with the "halibut war", there was no
sign of a change in the attitude of the Respondent in this case during the
negotiations on the Straddling Stocks Agreement as far as the definition of
"conservation and management measures" was concerned.
30. Notwithstanding what is stated in the Judgment, there is no evidence of
any contrary international State practice or international treaty that
invalidates the definition given in the 1995 Straddling Stocks Agreement,
which was itself based on that in the 1993 FAO Agreement. In support of its
reasoning, the Judgment cites provisions of national or European law which
are held to define conservation and management measures exclusively in
material and factual terms. These examples are not relevant, for they
provide an insufficient basis for the characterization of the measures
concerned in terms of international law. They are simply elements of fact,
which must be treated as such.
On the other hand, no opinio juris based on an exclusively material
definition of conservation and management measures was either put forward
by the Parties or identified by the Court. In view of this deficiency, it is
necessary to undertake a detailed analysis of the definition contained in
Article 1 of the 1995 Agreement. [p 566]
3. Analysis of Article 1 (b) of the 1995 Agreement
31. An analysis of this definition, which is cited in the Judgment, reveals
the two components of the concept: a descriptive element and a reference to
the rules of international law.
Confronted with a composite definition, the Judgment deliberately opted for
a characterization of conservation and management measures based solely on
the descriptive element, excluding the second component. This approach is
criticizable and unacceptable, in that the only justification for it put
forward in the Judgment is a statement of the risks inherent in a reference
to the legal component: the risk of a decision ultra petita. The Court
considers that a preliminary decision involving the international law aspect
would impinge on the merits.
32. I have no difficulty in agreeing with the majority of the Court that no
ruling on legality is required at the present stage. However, my
disagreement is over the question whether an explanation of the
relationship between the two components of the definition was needed in
order to justify the Court's decision. The Judgment, citing the factual
nature of conservation and management measures, takes the view that it was
not. This approach is unacceptable, for it ignores the second element of the
definition, which has to be examined in terms both of its purpose and of
its scope, whereas the Court considered only the latter. Notwithstanding any
question as to the legality of the measures, the Court had a duty to state
whether the legal component is intrinsic to the definition or merely an
operative element. In other words, if the definition in Article 1 is
deprived of its legal component, do the measures concerned remain
con-servation and management measures in the juridical sense of the term?
Replies to this question are to be found both in domestic and in
international law.
4. The Role of Law in Legal Definition
33. Let us consider the Swiss law of contract: if we examine the source of
individual contractual obligations, we find that, in the absence of special
legislative regimes, the determining factor in identifying the origin of the
relevant rules "is what the parties have validly agreed". In order to
determine the moment at which they become bound and whether their agreement
is valid, recourse must be had to the principles embodied in the law of
obligations (P. Tercier, Les contrats spιciaux, 2nd ed., 1995, p. 3, para.
19). When the Swiss law of contract contemplates "placing a legal
characterization upon the facts as found and ascertaining whether the
parties have sufficiently manifested their intention", it considers this to
be a matter pertaining to the law (see S. Cyboz and Gillieron, Code civil
Suisse et code des obligations annotιs, CO., 1993, p. 1).
It follows that the fact that the parties are ad idem with regard to the
normative element, that is, the subject of their reciprocal obligations, is
[p 567] not in itself sufficient to characterize this mutual and concordant
manifestation of a common intent. That intent must be tested in the
crucible of the law, in order to be certain exactly what that subject-matter
is and whether the parties are of one mind in every respect.
34. In treaty law, before an intended agreement between States can be
characterized as an international treaty, it must by definition incorporate
the element of international law. It is well known that, without that
reference to international law, concurrence of intentions does not
constitute a treaty within the meaning of the law of treaties. This
subordination to international law is not necessarily exclusive in
character, and at the same time implies a distinction between the notion of
a sanction and the existence of a rule.
35. At this stage, the fact that a treaty is subject to international law
precludes any notion of sanction or, more precisely, any issue of
compatibility with that law; the question of legality under international
law does not arise. The problem is to determine whether or not the
contracting parties intend to make their agreement subject to international
law; if the reply is affirmative, then it is with a treaty that we are
dealing. However, the fact that a treaty is subject to international law
does not mean that it is exclusively subject to such law. Thus we are
dealing here with an area of mixed jurisdiction, where international law and
domestic law co-exist and are applied in their respective spheres. Canada
was perfectly entitled to enact domestic maritime legislation for the
conservation and management of fisheries resources. However, from the
standpoint of international law, the problem takes on a slightly different
aspect.
36. The reference to international law is not expressed in general terms, as
in a standard clause analogous to those found in private contracts. It is a
restrictive or "qualified" reference. The 1982 Convention, by its universal
character, establishes the legal framework for all activity relating to the
law of the sea. It is thus common practice in a United Nations context to
interpret any rule or instrument of international law concerned with the law
of the sea as necessarily and particularly envisaging the 1982 Convention
and the specific agreement in question.
37. The reference to the Montego Bay Convention for purposes of the
definition of legal concepts means not only that the normative aspects of
definition have to be taken into account, but also that consideration of the
territorial aspect of the law governing maritime areas is required. The
latter element is essential to an understanding of the general scheme of the
Convention, in view of the significance attached to the "package" concept at
the Third United Nations Conference on the Law of the Sea. It follows that,
in the Straddling Stocks Agreement, only conservation and management
measures subject to and in conformity with the rules of the 1982 Convention
may be characterized as such irrespective of their legality although it
is has to be admitted that the distinction between the definition of such
measures in international law and their legality is an extremely fine one.
[p 568]
38. We may accordingly conclude that in the above examples drawn
admittedly from legal relationships based on contract or treaty reference
to law is an intrinsic requirement for the characterization of a legal
instrument.
5. The Role of Law in Legal Definition in the Case of a Unilateral
Instrument
39. In the present case, the problem derives from the unilateral nature of
the reservation in the declaration; the Judgment concludes that in these
circumstances the intention of the author of the declaration is paramount
and, hence, that substantial, not to say exclusive, importance should be
accorded to the respondent Party's domestic legislation. As a result, the
definition is restricted to its material aspect, even for purposes of
characterization of the facts in international law.
From the standpoint of international law, domestic legislation is of the
same juridical nature as the facts submitted for consideration by the
international forum, which is bound by the law of the parties. It was
therefore necessary for the Court to establish the pertinent facts with
precision for the purpose of settling the preliminary dispute; but it was
not enough to consider that aspect alone, for this was to misconstrue the
unilateral nature of a reservation to compulsory jurisdiction. The
reservation is unilateral in origin but international in its effects, and in
consequence pertains both to domestic law, as the Judgment sufficiently
demonstrates, and also to international law, an issue which the Judgment
avoids resolving or even contemplating; and that is unacceptable.
40. A declaration to which a reservation is attached, while perfectly valid
under the Court's Statute as is the Canadian declaration in this case
cannot have the effect of conferring upon the author of the reservation
sole responsibility for determining whether the condition for the Court's
exercise of its jurisdiction is met. The provisions of Article 36, paragraph
6, prohibit the Court from affording one of the parties unfettered
discretion to interpret a declaration made by that party in the free
exercise of its discretion.
In endorsing a unilateral interpretation of the reservation and espousing a
material definition of conservation and management measures, the Court has
failed to appreciate the nature of the network of relationships constituted
by the various declarations of acceptance under Article 36, paragraph 2, of
the Statute. The relations between the litigating parties come into being at
the time when the conditions formulated by the respondent including any
reservation are accepted by the applicant when it files its application.
From that point in time, we are no longer dealing with a single, unilateral
intention, that of the respondent, but with the common intention of the two
parties, as formed at the moment when the intention of the author of the
reservation meets that of the applicant State, an event which creates the
jurisdictional link between the litigating parties. Consequently, when faced
with a common intent con-[p 569]cealing an underlying divergence of views
with regard to the meaning of conservation and management measures, the
Court cannot lightly lay aside the traditional rules for the interpretation
of treaties.
41. A common intent is not, however, in itself sufficient to create legal
obligations. This would be the case where the parties to an agreement did
not intend to establish a mutual legal relationship and sought to exclude
their common intent from the area governed by the law. For purposes of legal
characterization, how can the existence of a common intent as to the
generally accepted meaning of a particular concept be established, otherwise
than by reference to the accepted means of expression of international
opinio juris international law? Thus, a common intent can have effectively
been formed only if each party has shaped its consent to fit the definition
of conservation and management measures in international law. Consequently,
it is by reference to its definition in international law that this notion
must be interpreted for the purpose of settling the preliminary dispute in
this case. That definition comprises two elements, one ratione materiae,
the other ratione loci.
The nature of the issue would have been different if the Canadian
reservation had provided for the exclusive competence of the author of the
declaration to interpret international law, but there is no such provision.
It is accordingly for the Court to define the conservation and management
measures in question on the basis of international law.
However, the Court cannot answer the fundamental question raised by the
preliminary dispute (Is the dispute presented by the Applicant in its
Application covered by the terms of the Respondent's declaration and
reservation?) until it has examined the merits of the dispute. Thus it is
necessary to examine the content of the measures and the practice of States
in order to ascertain whether these were conservation and management
measures within the meaning of the 1982 Convention. It follows that the
objection does not possess an exclusively preliminary character. In
answering the above question in the affirmative, the Judgment accepts the
hypothetical claims on the merits of a respondent which seeks immunity for
the measures it takes and the acts it performs, irrespective of their
legality.
In conclusion, I consider that:
(1) the passages in the Judgment concerning the subject of the dispute have
no direct connection with the question with which it is for the Court to
deal at this preliminary stage of the proceedings;
(2) Canada's objection does not possess an exclusively preliminary character
and should be joined to the merits.
(Signed) Raymond RANJEVA.
[p 570]
DISSENTING OPINION OF JUDGE VERESHCHETIN
Principal points of the dissent (para. 1).
I. Subject-matter of the main dispute between the Parties (paras. 2-9):
Spain's position on the subject-matter of the dispute (paras. 2, 5)
Canada's position on this issue (paras. 3,6) Article 40, paragraph 1, of
the Statute as the point of departure for the Court's finding (para. 4)
Canada's contention that every dispute before the Court must necessarily
consist of an "indivisible" whole embracing the facts and rules of law
(para. 6) European Community's attitude (para. 7) Absence of
well-founded reasons for narrowing the subject-matter of the dispute
presented by the Applicant (para. 8).
II. Effects of the Canadian reservation on the Court's jurisdiction in this
case (paras. 10-24):
Principle of the consent of the Parties is circumscribed (para. 10)
Court's duties as "an organ and guardian of international law" (para. 11)
"The Court cannot base itself on a purely grammatical interpretation of the
text" (para. 12) Construction in the light of international law (para. 13)
Definition of the concept "conservation and management measures" in
recent multi-lateral agreements Eminent relevance of these agreements
(paras. 14-15) Sine qua non element of the above definition (paras. 16-18)
"Due regard" to the declarant's intention (para. 19) Court should seek
to interpret the reservation as consistent with international law (paras.
20-21) Declarant"s intention Parliamentary debates (paras. 19, 21-22)
Implications of the Canadian reservation for the jurisdiction of the Court
cannot be conclusively established at this stage (paras. 23-24).
1. I regret that I find myself obliged to dissent from the Judgment of the
Court in the present case. I cannot concur with the arguments and findings
relating to two principal points:
(1) the subject-matter of the dispute, and
(2) the effects of the Canadian reservation on the Court's jurisdiction in
this case. Accordingly, I propose to deal with each of these issues in turn.
1. The Subject-Matter of the Main Dispute between the Parties
2. Spain has steadfastly reiterated throughout both the written and oral
pleadings that the core, the subject-matter, of the dispute between the two
States is the existence or non-existence of a title under international law
to act on the high seas against ships flying the flag of a foreign State,
and more concretely, against ships flying the Spanish flag. (See, [p 571]
inter alia, Memorial of Spain, Chap. II, Sec. IX, para. 22; Chap. IV, Sec.
II, paras. 173-176; CR98/9, pp. 18-19, 31, 42 et seq.; Final Submissions of
Spain). Equally, it has insisted that "Spain's Application is not concerned
with fishing on the high seas, nor with the management and conservation of
biological resources within the NAFO zone" (CR 98/9, p. 53, para. 39
[translation by the Registry]).
Spain has explained what it means by the term "title". In so doing it has
relied on the jurisprudence of the Court in the Burkina FasolRepublic of
Mali case, where the Court held that this concept may "comprehend both any
evidence which may establish the existence of a right, and the actual source
of that right" (Frontier Dispute, I.C.J. Reports 1986, p. 564, para. 18).
The Agent of Spain, while not denying that in the course of the proceedings
Spain sometimes used the word "title" in a different sense, concluded his
presentation of the issue by the following statement:
"When we contend that Canada has no international legal title to take action
on the high seas against ships flying the Spanish flag, we are using the
concept of title accepted by the Court: in other words, Canada's lack of
entitlement to engage in such actions." (CR98/9, p. 16 [translation by the
Registry].)
Thus, Spain has emphasized over and over again that it had submitted to the
Court a dispute relating not to measures for the management and conservation
offish stocks (which dispute had been dealt with elsewhere), but relating
generally to Canada's lack of title under international law to take actions
on the high seas against ships flying the Spanish flag, as it did in March
1995.
3. Contrary to this position, Canada has contended that the dispute does not
go beyond the conservation and management measures taken by Canada and that,
even if it does, the general issue of the entitlement to take actions on the
high seas against ships flying the Spanish flag remains related to the above
measures and their enforcement, and therefore cannot be treated by the
Court separately from the factual framework covered by the Canadian
reservation.
4. The point of departure for the Court's resolution of this dispute within
the dispute should be Article 40, paragraph 1, of the Statute, which
provides that it is for the applicant State to indicate the subject of the
dispute. Hence, while it is true that "[fjhe Court's jurisprudence shows
that the Court will not confine itself to the formulation by the Applicant
when determining the subject of the dispute" (para. 30 of the Judgment), it
must be equally true that, in characterizing the main dispute between the
Parties, the Court cannot without well-founded reasons redefine the subject
of the dispute in disregard of the terms of the Application and of other
submissions by the Applicant. Yet this appears to be what the Court has done
in its Judgment (see para. 35 of the Judgment).
5. The Application refers to the dispute between the Parties as one "going
beyond the framework of fishing, seriously affecting the [p 572] very
integrity of the mare liberum of the high seas and the freedoms thereof..
.". It also refers to "a very serious infringement of the sovereign rights
of Spain, a disquieting precedent of recourse to force in inter-State
relations . . ." (Application of Spain, p. 11). More specifically, it
states:
"The question is not the conservation and management of fishery resources,
but rather the entitlement to exercise a jurisdiction over areas of the high
seas and the opposability of such measures to Spain." (Ibid., p. 13.)
The use of the word "title" in the Application is not without ambiguity. It
refers not only to the existence or non-existence of the right under
international law, but also to the Canadian legislation, which, in the
Applicant's view, is distinct from conservation and management meas-ures
proper. However, both in the Application and in the final submissions the
Court is primarily asked to adjudicate on the question whether or not Canada
has an international legal title to exercise jurisdiction over, and use
force against, ships flying the Spanish flag on the high seas. Other claims
by Spain are functions of this central claim, but not vice versa.
6. The contention of Canada that:
"[i]t is impossible to isolate a dispute relating to matters of general
international law, and more particularly State jurisdiction, from a dispute
relating to measures for the conservation and management of the living
resources of the sea" (CR 98/12, p. 57 [translation by the Registry])
cannot be sustained on several accounts.
First, to maintain that every dispute before the Court must consist of an
"indivisible", "indissociable" whole, always and necessarily embracing both
facts and rules of law, would not accord with the Statute of the Court and
its jurisprudence. Under Article 36, paragraph 2 (b), of the Statute, the
Court has jurisdiction in all legal disputes concerning "any question of
international law". Legal disputes concerning "the existence of any fact
which, if established, would constitute a breach of international
obligation", are categorized on a par with disputes concerning "any question
of international law". Nothing in the Statute prevents the Court from
entertaining a "purely" legal dispute relating to a question of
international law. In the North Sea Continental Shelf cases, in accordance
with the Special Agreements, the Court stopped short at declaring applicable
principles and rules of international law (I.C.J. Reports 1969, pp. 54-55).
Secondly, were the Court to understand the above contention by Canada as a
general proposition that the Court cannot entertain in isola-[p 573]tion a
dispute relating to the interpretation of principles and rules of
international law merely because the same principles and rules may govern
another dispute, or another aspect of the dispute which is, allegedly,
exempted from the jurisdiction of the Court, then this contention would
again go contrary to the North Sea cases' jurisprudence as well as to the
Court's dictum in the case concerning United States Diplomatic and Consular
Staff in Tehran:
"no provision of the Statute or Rules contemplates that the Court should
decline to take cognizance of one aspect of a dispute merely because that
dispute has other aspects . . ." (I.C.J. Reports 1980, p. 19, para. 36).
The Court also remarked in its Judgment in the same case that:
"if the Court were, contrary to its settled jurisprudence, to adopt such a
view, it would impose a far-reaching and unwarranted restriction upon the
role of the Court in the peaceful solution of international disputes"
(ibid., p. 20, para. 37).
Thirdly, a dispute before the Court may have several subjects, or several
distinct aspects of the same subject. Thus in the Right of Passage over the
Indian Territory case the Court noted that "the dispute submitted to the
Court ha[d] a threefold subject" including "the disputed existence of a
right..." (I. C.J. Reports 1960, pp. 33-34, emphasis added). In a concrete
case, the Court may find that it has jurisdiction with regard to one
subject, or to a specific aspect of that subject, and has no jurisdiction
with regard to others.
7. In the case under consideration, due regard should also be given to the
fact that the European Community and its member States would appear to have
agreed that there was a dispute between Spain and Canada distinct from, and
co-existent with, that between the Community and Canada concerning fisheries
in the NAFO Regulatory Area.
8. In my view, the preceding analysis shows that legal entitlement ("the
disputed existence of a right") may properly be the subject of a separate
litigation before the Court. Spain, as an applicant State, was at liberty to
bring before the Court and to single out a distinct aspect of the dispute
between the Parties, which presented for it a special interest or had not
been resolved by some other peaceful means.
The scope of the dispute between the Parties is much broader than the
pursuit and arrest of the Estai and the consequences thereof. Quite apart
from this proximate cause of the dispute, it would appear that what
underlies it are different perceptions by the Parties of the rights and
obli-gations which a coastal State may or may not have in a certain area of
the high seas; or, more generally, different perceptions of the relationship
[p 574] between the exigencies of the law of the sea, on the one hand, and
environmental law on the other. The Court had no good reason for
redefining and narrowing the subject-matter of the dispute presented by the
Applicant, although, certainly, the Court could reasonably find that it had
jurisdiction in respect of some aspects of the dispute and was without
jurisdiction in respect of others.
***
9. Up to now we have not been concerned with the question whether the
dispute between the parties, however defined by the Court, is covered or
otherwise by the reservation attached by Canada to its declaration of
acceptance of the compulsory jurisdiction of the Court. We propose now to
turn to this crucial question.
It will be appropriate to recall at this juncture the text of Canada's
reservation. Subparagraph (d) of paragraph 2 of the Canadian declaration of
1994 excludes from the jurisdiction of the Court:
"disputes arising out of or concerning conservation and management measures
taken by Canada with respect to vessels fishing in the NAFO Regulatory Area,
as defined in the Convention on Future Multilateral Co-operation in the
Northwest Atlantic Fisheries, 1978, and the enforcement of such measures".
II. The Effects of the Canadian Reservation on the Court's Jurisdiction in
This Case
10. A number of preliminary observations seem to be necessary. It is common
knowledge that "jurisdiction of the Court is based on the consent of the
parties". However, this precept does not reflect the whole truth. If
jurisdiction must always be based on consent in the literal meaning of the
word, then, as soon as that consent is withdrawn (at any given time) by the
respondent State, the Court automatically ceases to have jurisdiction to
deal with the case brought against that State. As is, however, also well
known, the reality is different. There are a number of rules of
international law which circumscribe the principle of consent. Once a State
has given its consent to the jurisdiction of the Court, be that in the form
of a special agreement (compromis), a jurisdictional clause of a treaty, or
in the form of a declaration of acceptance of the optional clause, its
freedom in respect of the Court's jurisdiction ceases to be unlimited;
still less, can it be absolute. As the case may be, it is constrained by
general rules of international law (pacta sunt servanda), specific rules of
the treaty in question (the terms of the compromissory clause), the Statute
and procedural rules of the Court. Having regard to these considerations,
it is impossible to assert or to presume the absolute freedom [p 575] of a
State at any given moment in respect of the jurisdiction of the Court,
without due regard to the attendant circumstances.
One of the manifestations of the existing limitations on this freedom is the
Court's competence de la competence. "Self-judging" by the State concerned
is excluded. It is for the Court to establish the existence or otherwise of
its jurisdiction in a concrete case. In doing so the Court is not guided by
the present wish of the respondent State, but rather relies on the
interpretation of the voluntary acts of the parties in the past, at the time
when they accepted the jurisdiction of the Court, as well as on the existing
rules of international law and its jurisprudence.
11. In case of the optional clause jurisdiction (or so-called compulsory
jurisdiction), a State is absolutely free to join or not join the optional
clause system and to limit or not limit its consent to the Court's
jurisdiction by certain conditions and reservations. This does not mean,
however, that the role of the Court in the assessment of a State's
reservation/ condition to its declaration of acceptance of the optional
clause may be reduced solely to the establishment of the intention/will of
the State concerned or, for that matter, that the above intention/will must
always be conclusive for purposes of a decision on the Court's jurisdiction.
The Court would be failing in its duties of an "organ and guardian" of
international law should it accord to a document the legal effect sought by
the State from which it emanates, without having regard to the compatibility
of the said document with the basic requirements of international law.
Certainly, a State making a reservation sometimes does so because it
"lack[s] confidence as to the compatibility of certain of its actions with
international law" (para. 54 of the Judgment) and for that reason wishes to
evade the scrutiny of its conduct by the Court. However, it is one thing
when the legality of certain actions may be seen as doubtful, and quite a
different thing when the actions whose examination by the Court a State
seeks to avoid, by making a reservation, are clearly contrary to the
Charter of the United Nations, the Statute of the Court or to erga omnes
obligations under international law. Being confronted with such a dilemma,
it is for the Court to draw a distinction between these two different legal
situations, which may lead to different conclusions as to the validity or
admissibility of the reservation in question.
A State is not absolutely free to make any reservation or condition it
pleases to its optional declaration deposited under Article 36, paragraph
2, of the Statute. For example, it is uncontested that the Court cannot
give effect to a condition imposing certain terms on the Court's procedure
which run counter to its Statute or Rules. As Judge Armand-Ugon rightly
argued in the Interhandel case, "[t]he rules of substance and procedure
fixed by the Statute must be regarded as immutable: neither [p 576] the
Court nor the parties can break them" (Interhandel, Preliminary Objections,
Judgment, I.C.J. Reports 1959, p. 93, dissenting opinion of Judge
Armand-Ugon). Equally, in my view, the Court cannot give effect to a
reservation which expressly exempts from its jurisdiction the examination
of conduct manifestly inconsistent with the basics of international law. An
objection to the Court's jurisdiction based on a reservation tainted with
such a defect must be rejected by the Court as inadmissible. Recognition by
the Court of the operation of a reservation of this kind might be viewed as
tantamount to legal endorsement of what in fact should be considered as an
abuse of the right of a State not to be sued without its consent before an
international tribunal. Generally, reservations and conditions must not
undermine the very raison d'etre of the optional clause system.
12. In our case the legal situation is different. The Canadian reservation
admits of more than one interpretation. It is not the reservation itself,
but rather its current interpretation by Canada that is challenged by Spain.
Nor has the Court any reason to find that the content of the Canadian
reservation makes it ab initio manifestly inconsistent with the basic
principles of international law and therefore inapplicable. The task of the
Court in the present case is to find which of the possible interpretations
of the reservation is correct and, depending on this finding, to resolve the
dispute over its jurisdiction in the case.
According to the well-established rules for the interpretation of
declarations and reservations thereto, the Court must read them as a whole
and accord the natural and ordinary meaning to the words used in the text.
At the same time, the Court has specifically emphasized in the past that:
"the Court cannot base itself on a purely grammatical interpretation of the
text. It must seek the interpretation which is in harmony with a natural and
reasonable way of reading the text, having due regard to the intention of
[the declarant State] at the time when it accepted the compulsory
jurisdiction of the Court." (Anglo-Iranian Oil Co., Preliminary Objection,
I.C.J. Reports 1952, p. 104.)
13. For the Court, the question of legality cannot be totally irrelevant to
"a natural and reasonable way of reading the text". Since the function of
the Court is to decide disputes in accordance with international law
(Article 38, paragraph 1, of the Statute), every international document must
be construed by the Court in the light of international law. The language
of the Court is the language of international law. A term of a declaration
or of a reservation may have a wider or narrower meaning in common parlance
or in some other discipline, but for the Court "the natural and ordinary"
meaning of the term is that attributed to it in inter-[p 577] national law.
For natural scientists, for the fisheries industry, conservation and
management of fisheries resources remain conservation and management
irrespective of the location and legality of this activity. This does not
mean, however, that from the position of international law we can
characterize as conservation and management, for example, measures for the
protection of straddling fish stocks taken by one State in the territorial
waters of a neighbouring State without the consent of the latter.
International law recognizes the importance and encourages the development
of transborder co-operation for the protection of natural resources,
including straddling fish stocks, but it does not admit the possibility of
providing this protection by way of violation of fundamental principles of
international law. The terms of the art for the Court are the terms used in
the context of international law, even though they may have a somewhat
different meaning in other disciplines.
14. It follows that the expression "conservation and management measures",
as used in the Canadian reservation, must be read by the Court as referring
only to measures accepted within the system of modern international law. A
natural source in which to seek definitions of terms and concepts used in
the context of the new international law of the sea is the relevant
multilateral agreements, particularly those drawn up recently. The meaning
of the concept "conservation and management measures" in the international
law of the sea is defined in the Agreement for the Implementation of the
Provisions of the United Nations Convention on the Law of the Sea of 10
December 1982 Relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks (hereinafter referred to as the
"United Nations Agreement on Straddling Stocks of 1995")FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Adopted without a vote on 4 August 1995 at the United Nations Conference on
Straddling Fish Stocks and Highly Migratory Fish Stocks. One hundred and
thirty-eight States and many international organizations participated in the
Conference. As of now, the Agreement has been signed by more than 60 States,
but has not yet come into force.
---------------------------------------------------------------------------------------------------------------------
15. This Agreement and the terms used therein are eminently relevant for the
issue under consideration. Indeed, the Agreement is contemporaneous with
the emergence of the dispute. Its objective ("to ensure the long-term
conservation and sustainable use of straddling fish stocks and highly
migratory fish stocks" Article 2) coincides with the proclaimed objective
of the Canadian measures. Both the measures under the Agreement and the
Canadian measures are designed for application beyond areas under national
jurisdiction. The Agreement was drawn up "for the implementation of the
provisions of the United Nations Convention on the Law of the Sea of 10
December 1982", that is, it is intimately linked to the "Magna Carta" of the
modern law of the seaFN2. Moreover, both Canada and Spain have signed (but
not yet ratified) this Agreement.
---------------------------------------------------------------------------------------------------------------------
FN2
According to the mandate of the Conference which adopted the agreement,
"[t]he work and results of the conference should be fully consistent with
the provisions of the United Nations Convention on the Law of the Sea, in
particular the rights and obligations of coastal States and States fishing
on the high seas". See Report of the United Nations Conference on
Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol. I:
Resolutions adopted by the Conference, Res. I, Ann. II, para. 17.40.
---------------------------------------------------------------------------------------------------------------------
Article 1, paragraph 1 (b), of the Agreement provides that:
"'Conservation and management measures' means measures to conserve and
manage one or more species of living marine resources that are adopted and
applied consistent with the relevant rules of international law as reflected
in the Convention and this Agreement." (Emphasis added.)
Even more specific in this regard is another recent international legal
instrument directly related to the problems of conservation and management
on the high seas, namely: the Agreement to Promote Compliance with
International Conservation and Management Measures by Fishing Vessels on the
High Seas. This so-called "Compliance Agreement" was adopted in 1993 by the
Twenty-seventh Session of the FAO Conference and forms an integral part of
the Code of Conduct for Responsible FisheriesFN3. Article I of this
Agreement, entitled "definitions", contains a definition of "international
conservation and management measures" which, among other elements
identical to those in the above-cited definition also includes the element
of legality, which is formulated in the following way: "[measures] that are
adopted and applied in accordance with the relevant rules of international
law as reflected in the 1982 United Nations Convention on the Law of the
Sea".
---------------------------------------------------------------------------------------------------------------------
FN3
FAO Fisheries Department. Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels on the High Seas.
Twenty-five acceptances are required for the Agreement to come into force.
As of now, ten acceptances have been received, including that of Canada.
Significantly, Canada accepted the Agreement on 20 May 1994, that is, only
10 days after the filing of its declaration of acceptance of the compulsory
jurisdiction of the Court, which declaration contained the reservation
discussed.
---------------------------------------------------------------------------------------------------------------------
16. It follows from the texts just cited that, contrary to what is said in
the Judgment, in international law, in order for a measure to be
characterized as a "conservation and management measure" or an
"international conservation and management measure", it is not sufficient
that "its purpose is to conserve and manage living resources and that, to
this end, it satisfies various technical requirements" (paragraph 70 of the
Judgment). Another essential requirement indeed a sine qua non is that
the adoption and application of such a measure be "consistent" or "in
accordance" with the relevant rules of [p 579] international law and, more
specifically and primarily, with the Law of the Sea Convention.
Moreover, as the legislative history of the United Nations Agreement on
Straddling Stocks of 1995 shows, Canada was among the States which formally
proposed to include in Article 1 of the Agreement the definition of
"international conservation and management measures", which definition
embraced the requirement of the adoption and application of such measures
"in accordance with the principles of international law as reflected in the
United Nations Convention on the Law of the Sea . . ."FN4.
---------------------------------------------------------------------------------------------------------------------
FN4
Draft Convention on the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks on the High Seas (submitted by the
delegations of Argentina, Canada, Chile, Iceland and New Zealand), doc.
A/CONF.164/L.11 of 14 July 1993.
---------------------------------------------------------------------------------------------------------------------
17. The argument in the Judgment that "the practice of States" supports the
view that the exigencies of international law are irrelevant for the
definition of the concept "conservation and management measures" does not
accord with a number of facts. None of the instruments of national
legislation and regulations, cited in the Judgment as evidence of "typical"
practice of States (para. 70), contain any definition whatsoever of
"conservation and management measures", but all of them do contain special
clauses providing for the application of those laws and regulations in the
waters under national jurisdiction (that is, in harmony with international
law). Some of these instruments specifically stipulate that their
interpretation and application must be in a manner consistent with
international obligations (see, for example, New Zealand Fisheries Act
1996, Art. 5).
18. I agree with the statement in the Judgment that:
"[rjeading the words of the reservation [of Canada] in a 'natural and
reasonable' manner, there is nothing which permits the Court to conclude
that Canada intended to use the expression 'conservation and management
measures' in a sense different from that generally accepted in international
law" (para. 71).
But I fundamentally disagree that the meaning given by the Judgment to the
concept of "conservation and management measure" accords with the meaning of
this concept accepted in modern international law, as evidenced by the two
above-cited recent multilateral agreements and their legislative history.
19. In the process of interpretation, following the jurisprudence of the
Court, "due regard" should also be given to the intention of the State
author of the declaration/reservation at the time when such declaration/
reservation was made. "Due regard" does not mean that this factor should be
controlling and definitive for the outcome of the interpretation by the
Court, but it must certainly play an important role in ascertaining [p 580]
the purpose of the legal instrument. The purpose intended by the State
author must be primarily sought in the wording of the document itself. In
some cases, the Court has found "a decisive confirmation of the intention"
of the declarant State in the text itself of the examined declaration/
reservation. (See case concerning Anglo-Iranian Oil Co., Preliminary
Objection, Judgment, I.C.J. Reports 1952, p. 107.)
20. As a general premise, the Court should proceed from the presumption
that the intent was to remain within the orbit of international law. The
purpose of the declaration/reservation must be presumed as legal. The
Permanent Court of International Justice stressed that the Court cannot
presume an abuse of rights (Certain German Interests in Polish Upper
Silesia, Merits, Judgment No. 7, 1926, P.C.I. J, Series A, No. 7, p. 30).
The present Court in the Right of Passage case stated that:
"It is a rule of interpretation that a text emanating from a Government
must, in principle, be interpreted as producing and as intended to produce
effects in accordance with existing law and not in violation of it." (Right
of Passage over Indian Territory, Prelimi-nary Objections, Judgment, I.C.J.
Reports 1957, p. 142.)
The Court cannot impute to a State bad faith, an intent by way of a
reservation to cover a violation of international law.
21. Basing itself on the presumed lawfulness of Canada's intent, the Court
cannot read into the text of the reservation of Canada an intention to
violate the fundamental principle of the freedom of the high seas and at the
same time to avoid review of this conduct by the Court. Rather, it should
seek to interpret the reservation as consistent with international law and,
therefore, to construe the words "conservation and management measures" in
the sense accepted in recent multilateral agreements (see supra, para. 16)
or, at the very least in a sense having some justification in international
law.
22. The purpose intended to be served by the declaration/reservation may
also be sought by the Court in any available evidence pertaining to the
adoption of the instrument. The evidence furnished by Canada to this effect
is ambivalent. Parliamentary statements, made at the time when the
declaration and the reservation thereto had just been deposited, would
appear to limit the application of the envisaged measures to "pirate
vessels" (which would be consistent with international law). Both the
Minister for Foreign Affairs and the Minister for Fisheries and Oceans
principally spoke of stateless or "pirate vessels" as the target of the
proposed legislation (Bill C-29), whose "integrity" the reservation was
intended to protect. In light of the link between that legislation and the
reservation, the above statements could be viewed as the official
interpretation of the reservation by Canada at the time of its deposit.
Only some one year later did Canada introduce the regulations by which Act
C-29 was applied to Spanish and Portuguese vessels. [p 581] Arguably, those
regulations are not relevant to the interpretation of the reservation at the
time of its deposit. It follows that the parliamentary debate and other
evidence submitted by Canada cannot be relied on in order to draw
conclusions as to "the evident intention of the declarant" (paragraph 66 of
the Judgment; emphasis added) at the time material for the interpretation of
the reservation.
***
23. In view of the above considerations, the scope (ratione materiae and
ratione personae) of the Canadian reservation, as well as its implications
for the Court's jurisdiction in this case, appear much less clear than it
may seem on the face of the matter. The clarification of these issues
requires further analyses of facts and law and the conclusive establishment
whether the measures taken by Canada, including their enforcement, fall
within the terms of the reservation. This can be done only at the merits
stage.
24. On the other hand, already at the present stage, it is amply clear that
legal uncertainties surrounding the Canadian reservation make it impossible
for the Court, relying on this reservation, to arrive with confidence at
the conclusion that it has no jurisdiction to entertain the broad legal
dispute over the title under international law for a coastal State to act on
the high seas with the use of force against vessels of other States. In my
view, the correct course of action for the Court would have been to find
that in the circumstances of the case the objections of Canada did not have
an exclusively preliminary character.
(Signed) Vladlen S. VERESHCHETIN.
[p 582]
DISSENTING OPINION OF JUDGE TORRES BERNERDEZ
[Translation]
Table of contents
|
Page |
Introduction |
584 |
|
|
Chapter
I. The Unusual Procedure |
584 |
|
|
Chapter
II. The Facts Constituting the Source of the Dispute
|
590 |
|
|
Chapter
III. The Subject of the Dispute |
601 |
|
|
A. The notion of the
subject of the dispute and its constituent elements
|
601 |
|
|
B. The subject of the
dispute in the light of the Applicant's
"causa petendi"
and
"petitum"
|
603 |
|
|
C.
Title
as a cause of action in the light of the jurisprudence of the Court
regarding the law of the sea |
609 |
|
|
D. The Respondent's
position on the subject of the dispute |
613 |
|
|
E. Does the new definition
of the subject of the dispute contained in the Judgment accord with
the applicable law and with the jurisprudence of the Court?
|
616 |
|
|
F.
Conclusion to Chapter
III
|
628 |
|
|
Chapter
IV. The Jurisdiction of the Court in the Case
|
629 |
|
|
A. General
|
629 |
|
|
1.
Manifestation of consent to jurisdiction under
the optional clause system: declarations |
629 |
|
|
2.
Do the present incidental proceedings raise
any question relating to the principle of consent to jurisdiction
or to the non-presumption of such consent? |
631 |
|
|
3.
Are there any limits to the freedom of States
to insert conditions and reservations in their declarations?
|
634 |
|
|
4.
Good faith and mutual trust as essential
principles of the optional clause system under the Statute of the
Court |
638 |
5.
Rules and methods for interpreting
declarations relied on by the Parties and general position adopted
by the Judgment on the question |
639 |
|
|
6.
The respective functions of the parties and
the Court in preliminary proceedings on jurisdiction
|
644 |
|
|
B. The question of
admissibility or opposability to Spain, in the circumstances of the
case, of the reservation in paragraph
2
(d)
of the Canadian declaration |
646 |
|
|
C.
The
interpretation of the Canadian declaration of
10 May
1994,
including the reservation in paragraph
2
(d)
of the declaration
|
656 |
|
|
1.
The Canadian declaration as the subject-matter
of the interpretation which the Court must undertake
|
656 |
[p 583] |
|
2.
The
question of the restrictive or extensive interpretation of the
reservation in paragraph
2
(d)
of the declaration |
659 |
|
|
3.
The
general scheme of Canada's declaration |
662 |
|
|
4.
The
legally material intention for the interpretation of Canada's
declaration |
666 |
|
|
5.
Interpretation in good faith of the Canadian declaration, including
the reservation in subparagraph
(d)
|
670 |
|
|
6.
The
ordinary meaning of the terms of the reservation in subparagraph
(d)
in their context
and in the light of the object and purpose of Canada's declaration
|
674 |
|
|
7.
The
role of international law in interpretation of the reservation
contained in subparagraph
(d)
of the Canadian declaration |
681 |
|
|
8.
The
circumstances surrounding the deposit of the Canadian declaration as
a supplementary means of interpretation |
685 |
|
|
(a)
The statements made in the
Senate on 12
May
1994
by the Canadian Minister
of Foreign Affairs and International Trade
|
686 |
|
|
(b)
The statements by the
Canadian Minister of Fisheries and Oceans
|
688 |
|
|
(c)
The news release of
10
May
1994
|
689 |
|
|
9.
Other supplementary means
of interpretation
|
689 |
|
|
(a)
The Canadian declaration
of 7
April
1970
|
689 |
|
|
(b)
The NAFO Convention of
1978
|
691 |
10.
The interpretation of the
reservation in subparagraph
(d)
of the Canadian
declaration in the light of the rules, elements and methods of
interpretation of international law
|
693 |
|
|
(a)
The "measures" referred to
in the reservation
|
693 |
|
|
(b)
The "vessels fishing"
referred to in the reservation
|
698 |
|
|
(c)
The "conservation and
management measures" of the reservation and the failure to define
such measures in the declaration
|
703 |
|
|
(d)
The words "the enforcement
of such measures" in the reservation and the silence on the use of
force in respect of the matters reserved by the declaration
|
722 |
|
|
(e)
The expression "disputes
arising out of or concerning . . . measures" in the reservation and
the subject of the dispute submitted by Spain
|
733 |
|
|
Chapter
V. Other Issues
|
735 |
|
|
1.
The
Court's power to determine its own jurisdiction
|
735 |
|
|
2.
Objections which do not possess an exclusively preliminary
character |
736 |
|
|
3.
The
extent to which the present Judgment constitutes
res judicata
|
737 |
|
|
General
Conclusions
|
738 |
[p 584]
Introduction
The differences of view between the majority and myself are so wide that to
say that I dissociate myself from the Judgment now handed down by the Court
is something of an understatement. Hence the length of this dissenting
opinion, in which I have seen it as my duty to set out, in the necessary
detail, my views on the various issues of law and fact which, in my opinion,
arise in the present preliminary incidental proceedings on jurisdiction. I
find that either these issues are not dealt with at all in the Judgment or
the answers given are not, in my view, well founded, given the subject of
the dispute submitted by Spain, the law applicable to the interpretation and
application of the Canadian declaration of acceptance of the compulsory
jurisdiction of the Court, and other relevant circumstances.
Chapter i. The Unusual Procedure
1. The Application instituting proceedings filed by Spain against Canada on
28 March 1995 founds the jurisdiction of the Court in this case on Article
36, paragraph 2, of the Court's Statute, both countries being "declarant
States" for the purposes of the optional clause system, Spain having
deposited its declaration on 15 October 1990, Canada on 10 May 1994. The
status of declarant State of the two Parties is not in question in the
present proceedings, as is sometimes the case. For example, in the Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) case, the existence or the validity of Nicaragua's
declaration was at the very heart of the discussion on jurisdiction. Nothing
of the kind arises in the present case.
2. Nevertheless, the Respondent's initial step was to object to the Spanish
Application by contending in its letter of 21 April 1995 that the Court
manifestly lacked jurisdiction. To invoke in limine the Court's manifest
lack of jurisdiction as between declarant States under the optional clause
system is an attitude which cannot, and should not, go unremarked, inasmuch
as it represents a challenge within that system to the "competence de la
competence" assigned to the Court by Article 36, paragraph 6, of the Statute
and by international law.
3. Every State may choose whether or not to be a declarant State in
accordance with Article 36, paragraph 2, of the Statute, but no declarant
State is entitled to accept the compulsory jurisdiction of the Court with
the mental reservation that, when the time comes, it may unilaterally
exclude the "competence de la competence" of the Court. In any case the
Canadian declaration does not do this. On the contrary, it contains a
reservation of national jurisdiction the meaning of which must be
interpreted objectively rather than subjectively. It follows that
allegations of manifest lack of jurisdiction (which historically have their
origin in cases [p 585] coming under Article 53 of the Statute) are out of
place and to be condemned, since they are incompatible with the principles
of good faith and mutual trust which govern relations between declarant
States under the optional clause system.
4. What a respondent declarant State is supposed to do, if it objects in
limine to an application by another declarant State, is to file a formal
preliminary objection, under Article 79 of the Rules of Court, setting out
the facts and the law on which that objection is based. This preliminary
objection is the "missing link" in the present proceedings and the lack of
it has had regrettable procedural consequences in both the written and the
oral phases of the proceedings.
5. Canada's initial position on the issue of manifest lack of jurisdiction
was modified as a result of the agreement reached between the Parties at a
meeting of the President of the Court with their representatives on 27 April
1995, as is explained in the President's Order of 2 May 1995; it was that
Order which opened the present incidental phase. Canada has thus accepted
that it is for the Court, by virtue of Article 36, paragraph 6, of the
Statute, to rule on the jurisdictional objection raised by it. The Canadian
Counter-Memorial and oral pleadings also confirmed this.
6. The Order of 2 May 1995 states that "it was agreed that the question of
the jurisdiction of the Court in this case should be separately determined
before any proceedings on the merits", and that "at that meeting agreement
was also reached on time-limits for the filing of written pleadings on that
question". Taking into account that agreement, the Order accordingly fixed
time-limits for the filing of a Memorial by Spain and a Counter-Memorial by
Canada on the question of the Court's jurisdiction.
7. It is therefore clear that the Applicant, Spain, gave its agreement to
the sequence of submission for the written pleadings fixed by the Order of 2
May 1995. However, by letter of 1 May 1995, transmitted to the Registry
under cover of a letter of 3 May 1995 from the Ambassador of Spain to the
Netherlands, the Agent of Spain, without seeking to re-open the agreed
sequence for the filing of the written pleadings, proposed that Canada
should be invited by the Court to submit in writing, no later than a
specified date, a summary statement containing indications in general terms
of the point or points on which Canada would rely in its contentions that
the Court is without jurisdiction in this case or that the subject-matter of
the Application is inadmissible. In support of that proposal, the letter of
the Agent of Spain indicated that, otherwise,
"maintenance of the equality of the Parties [would] be impossible and it
might prove difficult to complete an orderly exposition of the views of the
Parties in order to assist the Court in its duty to decide its jurisdiction
under Article 36, paragraph 6, of the Statute".
[p 586]
In other words, the Agent of Spain proposed a procedure which mutatis
mutandis offered certain analogies with the procedure subsequently adopted
in the Court's Order in the Maritime Delimitation and Territorial Questions
between Qatar and Bahrain case in regard to the docu-ments alleged by
Bahrain to be forgeries.
8. By letter of 15 May 1995, transmitted to the Registry under cover of a
letter of 17 May 1995 from the Ambassador of Canada to the Netherlands, the
Agent of Canada objected to the above proposal by Spain in the following
terms:
"This Order [of 2 May 1995] reflects accurately the Agreement on the
sequence, filing dates and subject-matter of the written proceedings
reached by the two Parties and the President of the Court at their meeting
of 27 April 1995. The Spanish proposal is not acceptable to Canada. We
believe that the procedure established in the Order should be respected."
In that letter the Agent of Canada again reverts to the manifest lack of
jurisdiction of the Court "for reasons indicated" in the letter of 21 April
1995; he observes that the procedure agreed upon and set out in the Order of
2 May 1995 reflects "the principle that jurisdiction in the International
Court of Justice cannot be presumed, but rather depends upon the consent of
both Parties". He ends with a comment on questions of admissibility,
pointing out that the Order of 2 May 1995 refers exclusively to the
question of jurisdiction, and that accordingly
"issues that do not involve questions of jurisdiction are not to be
addressed at this time. It is understood that the Parties retain the right
to raise questions of admissibility at an appropriate stage."
9. Having failed to get its proposal accepted, Spain prepared its Memorial
without knowledge of the considerations of fact and law supporting Canada's
objection to the Court's jurisdiction. All that it had at its disposal was
Canada's letter of 21 April 1995 (one page), in which the Respondent stated
that the Court manifestly lacked jurisdiction, quoting the terms of
subparagraph (d) of paragraph 2 of the reservation to its declaration of 10
May 1994. The Spanish Memorial therefore proceeded on the basis of
suppositions with regard to the grounds of Canada's objection, whereas, for
it, applicant State, the Canadian declaration of 10 May 1994 did not raise
an issue of jurisdiction, given its terms and the subject-matter of the
dispute submitted to the Court by the Spanish Application. In its Memorial
Spain was also obliged, in light of the concluding sentence of the
above-mentioned letter of 15 May 1995 from the Agent of Canada, to deal with
possible questions that might be raised with regard to the admissibility of
the Application. By contrast, Canada was able to prepare its
Counter-Memorial whist having available to it two formal procedural
instruments filed by Spain, namely the Application and the Memorial on
jurisdiction. [p 587]
10. This removes much of the force from certain comments in Canada's
Counter-Memorial, which, moreover, pretends ignorance of the subject and
nature of the dispute submitted by Spain. It is not logical that Canada's
Counter-Memorial on jurisdiction should contain no chapter or section on
"the subject of the dispute", given that the Respondent's contention that
the Court has no jurisdiction to entertain the dispute is based on a
reservation contained in its declaration of 10 May 1994 which is formulated
by reference to a specific category of disputes. Instead, Chapter I of
Canada's Counter-Memorial on jurisdiction, entitled "Factual and Historical
Background", deals with the conservation crisis in respect of fisheries
stocks in the northwest Atlantic. The proper place for such considerations
would be in a counter-claim or as a defence on the merits inasmuch as they
might serve to establish some sort of state of necessity in the face of
Spain's allegations of unlawful international acts committed against it by
Canada but, in themselves, they are of no relevance to the issue of the
definition of the subject of the dispute submitted to the Court by Spain's
Application of 28 March 1995.
11. Furthermore, in its Counter-Memorial, Canada raised a new objection
founded on admissibility ("mootness" according to the Court's very latest
terminology), of which there was no mention either in its letter of 21 April
1995, or in the President's Order of 2 May 1995, or in Canada's letter of 15
May 1995. Thus Canada devoted an entire chapter of its Counter-Memorial,
Chapter IV, to "drawing the attention" of the Court to the contention that
the dispute had been settled since the filing of the Spanish Application on
the ground that it had become devoid of purpose as a result of the agreement
concluded on 20 April 1995 between Canada and the European Union. This is
confirmation, if confirmation were needed, that Canada has constantly sought
to redefine the subject of the dispute notwithstanding its position as
Respondent in the proceedings.
12. Canada subsequently opposed Spain's request for a second round of
written pleadings (Reply and Rejoinder). And the Court's decision (Order of
8 May 1996) not to order a second round of written pleadings did nothing to
make good these flaws in the operation of the adversarial principle at the
written stage.
13. It was therefore necessary to await the oral stage before the Parties'
respective positions could be properly compared, and the beneficial effects
of the adversarial principle on the conduct of the proceedings could thus
make themselves fully felt. However, Article 43 of the Court's Statute
requires that this should occur at both the oral and the written stage of
the proceedings.
14. Thus it was only at the oral pleadings stage, which took place in June
1998, that Spain was able to reply to the Respondent's arguments of fact and
law concerning jurisdiction. And what then was Canada's reaction? To
complain that the manner in which Spain had argued its case did not accord
with the requirements of international judicial proceedings. But whose
fault was it that Canada had, as it claimed, been [p 588]taken by surprise
in this way? A party which at the written stage of the proceedings has
systematically opposed itself to the operation of the adversarial principle
is not in the best of positions to make such comments on reaching the oral
stage.
15. In this connection, counsel for Canada also contended that the Applicant
is under a duty to confront the Respondent with clearly defined legal
arguments. But, in that case, does not a Respondent who raises such an
objection a Respondent, moreover, who is a declarant State under the
optional clause system have a similar procedural duty at the written stage
of the proceedings? Canada, which defends a position in this case based on a
subjective, unilateral conception of the law, also apparently wishes to
extend this approach to the judicial procedure of the Court itself.
16. But that is not all. Canada, having, in Chapter IV of its
Counter-Memorial, "drawn the attention" of the Court to its contention that
the dispute was settled, then retreated from this position at the oral
pleadings stage. No doubt it realized that this argument enabled Spain's
counsel to go into matters at that stage whose discussion Canada had at all
costs wished to avoid, that is to say a detailed examination of the
subject-matter of the dispute submitted to the Court by the Spanish
Application. Thus at the oral pleadings the Deputy-Agent for Canada stated
the following:
"Accordingly, questions of admissibility, including the exhaustion of local
remedies, and of mootness that is, whether the dispute has been settled
and of the locus standi of Spain to bring this case: those questions are not
in issue at this stage. Canada therefore has taken no position on those
questions." (CR98/14, p. 8.)
17. The statement that Canada took no position on the question as to whether
the proceedings were moot, after devoting one whole chapter in its
Counter-Memorial to asserting that the dispute had been settled, does not
correspond to the facts. At the oral stage of the proceedings, Canada quite
clearly abandoned the allegation of mootness. In its submissions in the
present incidental proceedings, Spain took note of the fact that Canada had
abandoned the allegation that the dispute between itself and Spain had
become moot (see paragraph 12 of the Judgment).
18. It should also be emphasized here that Canada abandoned the allegation
of mootness after Spain had finished its first round of oral argument,
Canada being the second to speak. As a result, Spain devoted a considerable
amount of time in the first round to refuting an allegation of mootness
which subsequently disappeared from the proceedings. In properly conducted
proceedings, it is unreasonable to have to wait until the second round of
oral argument before being in a position to know the subject and scope of a
preliminary objection under the terms of Article 79 of the Rules of Court.
[p 589]
19. The statement by the Deputy-Agent of Canada quoted in paragraph 16
above also refers to the exhaustion of local remedies and to the locus
standi of Spain to bring the case. On the latter point, it should be
emphasized that Canada has recognized in the present incidental proceedings
that a dispute between itself and Spain indeed existed on the date the
Spanish Application was filed 28 March 1995 and that, as I have just
said, at the oral stage of the proceedings it abandoned its claim that the
dispute was moot. In paragraph 88 of the Judgment the Court states that, in
the circumstances of the case, it is not required to determine proprio motu
whether or not the present dispute is distinct from the dispute which was
the subject of the Agreement of 20 April 1995 between the European Community
and Canada.
20. As for the reference to the rule of the exhaustion of local remedies
(also mentioned in Canada's Counter-Memorial), the least that can be said is
that this seems inappropriate, since, as is apparent from the Application
instituting proceedings, the Applicant's Memorial and the oral arguments,
Spain's action in lodging its Application is not an exercise in diplomatic
protection arising out of injury to Spanish individuals, property or
private interests caused by Canada's conduct.
21. The proceedings instituted by Spain on 28 March 1995 concern acts by
Canada which, in the Applicant's view, directly violate the rights and
interests of Spain as a sovereign State, and particularly its right to
exercise exclusive jurisdiction over vessels flying its flag on the high
seas and its right to see that Canada, too, respects the freedom of the high
seas and complies with the norms governing the prohibition on the use of
force in international relations. This is therefore not a dispute over
international responsibility, which is subject to the rule of the prior
exhaustion of local remedies.
22. It is true that the Government of Canada is currently the subject of
civil proceedings before its own courts by the owners of the Estai for
damage resulting from "trespass on the high seas", "endangerment on the high
seas", "piracy", "unlawful seizure", etc. (see text of the statement of
claim filed on 28 July 1995 in the Federal Court of Canada by the
solicitors of the shipowners of the Estai relating to the actions by Canada
against the vessel, Memorial of Spain, Vol. II, pp. 913-945). However,
Spain's Application of 28 March 1995 was not an exercise in diplomatic
protection arising from the damage caused to the owners of the Estai. But
this in no way prejudices Spain's right to exercise such diplomatic
protection in due course by lodging a fresh application. In the oral
arguments, Spain reserved the right to do so.
23. In conclusion, I would take this opportunity to express my view on the
need for judges' written notes, in particular in cases involving
preliminary proceedings concerning the Court's jurisdiction. The experience
in this case convinces me that in situations of this kind the preparation of
written notes is the only acceptable working method. Written notes [p 590]
afford both Parties the same objective guarantees, arguments denying the
Court's jurisdiction being generally a great deal simpler to expound than
those which seek to uphold it.
Chapter II. The Facts Constituting the Source of the Dispute
24. The facts constituting the source of the dispute submitted by the
Spanish Application occurred at the beginning of March 1995. Thus on 3 March
1995 the Canadian Coastal Fisheries Protection Regulations, in their version
of 25 May 1994, were amended so as, inter alia, to add to the existing
"prescribed classes of foreign fishing vessels" laid down by the 1985
Canadian Coastal Fisheries Protection Act, as amended on 12 May 1994 (Bill
C-29), a new category entitled, "foreign fishing vessels that fly the flag
[of Portugal or Spain]" which are fishing in the NAFO Regulatory Area.
25. It should be recalled that the NAFO Regulatory Area is a region of the
high seas situated outside Canada's 200-mile exclusive economic zone.
Article I, paragraph 2, of the Convention on Future Multilateral Cooperation
in the Northwest Atlantic Fisheries of 24 October 1978 (to which both Canada
and the European Union are parties) states:
"The area referred to in this Convention as 'the Regulatory Area' is that
part of the Convention Area which lies beyond the areas in which coastal
States exercise fisheries jurisdiction."
The words "beyond the areas in which coastal States exercise fisheries
jurisdiction" do not feature in the definition contained in the Canadian
Act. These are, however, words of great significance in the NAFO Convention
!
26. This extension, on 3 March 1995, of Canadian legislation to cover
vessels flying the Spanish flag on the high seas within the NAFO Regulatory
Area which, in itself, constituted a clear claim by Canada to jurisdiction
over the high seas with respect to Spanish vessels and a violation of
Spanish sovereign rights within such a maritime area was followed a few
days later by attacks by Canadian coastguard or fisheries patrol vessels on
Spanish fishing vessels which were, at that time, fishing legally within the
NAFO Regulatory Area. It was not until the beginning of May 1995 that the
Regulations of 3 March 1995 were repealed by Canada.
27. A mere six days after the adoption of the Regulations of 3 March 1995,
the Estai, a Spanish fishing vessel, was intercepted and boarded by the
Canadian fisheries patrol vessel Leonard J. Cowley and the Canadian
coastguard ship Sir Wilfred Grenfell on the high seas in the region of the
[p 591] Grand Banks, some 245 miles from the Canadian coast. This act had
been preceded by a pursuit which likewise began on the high seas,
successive attempts at interception by high-speed patrol boats carrying
personnel armed with automatic weapons, and by intimidatory manuvres,
including the firing of warning shots from a 50-millimetre gun mounted on
board the patrol vessel Leonard J. Cowley. Having been boarded by force, the
Estai was escorted by the Canadian patrol vessels to the port of St. John's
(Newfoundland), where her master was arrested and charged before the
Provincial Court of Newfoundland with having "resisted authority" under the
Canadian Coastal Fisheries Protection Act in its amended version of 12 May
1994.
28. On the same day that the Estai was seized, 9 March 1995, the Spanish
Embassy in Canada addressed two Notes Verbales to the Canadian Minister of
Foreign Affairs and International Trade. Under the terms of the second of
these Notes the Spanish Government categorically condemned the pursuit and
harassment of the Spanish vessel by vessels of the Canadian navy, in
flagrant violation of the international law in force, since these acts took
place outside the 200-mile zone (see paragraph 20 of the Judgment).
29. In addition, on 10 March 1995, the Spanish Minister for Foreign Affairs
addressed a Note Verbale to the Canadian Embassy in Spain in the following
terms :
"In carrying out the said boarding operation, the Canadian authorities
breached the universally accepted norm of customary international law
codified in article 92 and articles of the same effect of the 1982
Convention on the Law of the Sea, according to which ships on the high seas
shall be subject to the exclusive jurisdiction of the flag State. In the
light of this serious incident, which has caused substantial damage to
Spanish nationals, Spain lodges the most vigorous protest and at the same
time demands the immediate release of the crew and the vessel and reserves
the right to claim appropriate compensation.
The Spanish Government considers that the wrongful act committed by ships
of the Canadian navy can in no way be justified by presumed concern to
conserve fisheries in the area, since it violates the established provisions
of the NAFO Convention to which Canada is a party.
The boarding of the vessel constitutes a serious offence against
international law, not in keeping with the usual conduct of a responsible
State, carried out under cover of unilateral legislation not opposable to
other States. Consequently the Spanish Government demands the repeal of the
legislation in question.
The Spanish Government finds itself constrained, in the light of these
events, to reconsider its relations with Canada, and reserves the right to
take whatever measures it considers appropriate." (Memorial of Spain,
Annexes, Vol. I, Ann. 8.)[p 592]
(Paragraph 20 of the Judgment reproduces only part of the first paragraph
and the second paragraph of the above Note Verbale.)
30. As can be seen from a simple reading of this Note Verbale, Spain did not
initially raise any issues connected with the conservation or management of
biological resources in the NAFO Regulatory Area (nor did it do so
subsequently). Its dispute with Canada is concerned with questions of title,
with the rights or jurisdiction of sovereign States on the high seas and, in
particular, with the rule that the flag State has exclusive jurisdiction
over its ships on the high seas and with the non-opposability to Spain of
the Canadian legislation. Thus in this Note Verbale of 10 March 1995 one can
already see all of the principal elements which were to form the basis of
the Application instituting the present proceedings filed by Spain on 28
March 1995. In this regard, it is also important to bear in mind that none
of the constituent elements of the dispute which Spain has submitted to the
Court concern powers which have been transferred in whole or in part to the
European Union by member States under the Community's common fisheries
policy.
31. On 10 March 1995 the Canadian Minister of Foreign Affairs and
International Trade in his turn addressed a Note Verbale to the Spanish
Embassy in Canada, confirming "that Canada [had been] obliged to arrest a
Spanish trawler, the Estai, at about 4.50 p.m. on 9 March" and stating that
the Estai had resisted the efforts to board her made by Canadian inspectors
in accordance with international practice and that the arrest of the Estai
had been necessary in order to put a stop to the overfishing of Greenland
halibut by Spanish fishermen (see paragraph 20 of the Judgment). This
Canadian Note Verbale is also of interest for the insight that it affords us
into certain other significant aspects of the facts which gave rise to the
current dispute between Spain and Canada and into the subsequent course of
events.
32. Thus in its final paragraphs (not reproduced either in the Judgment)
the Canadian Note Verbale states the following:
"The attached communique of 9 March expresses the disappointment of the
Honourable Andre Ouellet, Minister of Foreign Affairs, regarding the
position of the European Union which has forced Canada to take measures of
coercion for this purpose.
The Department would also point out that the Prime Minister of Canada
proposed to the President of the European Commission a 60-day moratorium on
fishing for Greenland halibut beyond Canada's 200-mile area, in order to
facilitate the search for a negotiated solution. As a token of good faith,
the Honourable Brian Tobin, Minister of Fisheries and Oceans, announced on 9
March that Canada would not allow its own fishermen to fish for Greenland
halibut over a period of 60 days, both within and outside the 200-mile area.
At the present time it is the Department's understanding [p 593] that no
Spanish boat is fishing for Greenland halibut on the Nose and Tail of the
Grand Banks. The Department requests the cooperation of the Embassy to
ensure that this situation is maintained so as to make possible the
resumption of negotiations." (Memorial of Spain, Annexes, Vol. I, Ann. 9,
pp. 46-47; emphasis added.)
33. Thus it is the position adopted by the European Union which is stated to
have forced Canada to take the measures of coercion which led to the
boarding of the Estai on 9 March 1995, rather than the fishing activities of
the Spanish vessel itself. It was a matter of taking the Estai hostage, and
possibly the entire Spanish fishing fleet in the NAFO Regulatory Area at
that time, with a view to putting pressure on the European Union to change
its position in the dispute which then existed between Canada and the Union
within NAFO.
34. Furthermore, still on 10 March 1995, the European Community and its
member States addressed to the Canadian Minister of Foreign Affairs the Note
Verbale mentioned at the end of paragraph 20 of the Judgment. The text of
this Note Verbale read as follows:
"In relation with the violent arrest of the fishing vessel Estai, flying
the flag of Spain, by Canadian Patrol and Coast Guard vessels in
international waters on 9 March 1995, the Community and its member States
wish to express their strongest condemnation of such an illegal and totally
unacceptable act.
The arrest of a vessel in international waters by a State other than the
State of which the vessel is flying the flag and under whose jurisdiction
it falls, is an illegal act under both the NAFO Convention and customary
international law, and cannot be justified by any means. With this action
Canada is not only flagrantly violating international law, but is failing to
observe normal behaviour of responsible States.
This act is particularly unacceptable since it undermines all the efforts of
the international community, notably in the framework of the FAO and the
United Nations Conference on Straddling Fish Stocks and Highly Migratory
Fish Stocks, to achieve effective co-operation through enhanced cooperation
in the management of fisheries resources.
This serious breach of international law goes far beyond the question of
fisheries conservation. The arrest is a lawless act against the sovereignty
of a Member State of the European Community. Furthermore the behaviour of
the Canadian vessels has clearly endangered the lives of the crew and the
safety of the Spanish vessel concerned. [p 594]
The European Community and its member States demand that Canada immediately
release the vessel, repair any damages caused, cease and desist from its
harassment of vessels flying the flag of Community member States and
immediately repeal the legislation under which it claims to take such
unilateral action.
The European Community and its member States are forced to reassess their
relationship with Canada in the light of this deplorable situation and
reserve their rights to take any action which they deem appropriate."
(Memorial of Spain, Annexes, Vol. I, Ann. 11; the first and the last
paragraph of this Note are not reproduced in the Judgment either.)
35. The Note Verbale from the European Community and its member States
correctly makes the distinction between "the question of fisheries
conservation" and that of acts "against the sovereignty of a State", thereby
confirming that these are two quite separate issues. The Applica-tion
instituting proceedings filed by Spain in this case is concerned only with
those actions of Canada which, in the Applicant's view, constituted an
attack in March and April 1995 on the sovereignty of Spain qua State. I
would add that a few days after 10 March 1995 the Estai was released to
Spain and negotiations between the European Community and Canada with regard
to their dispute within NAFO could be opened in Brussels. On the other hand,
the repeal of the Regulations of 3 March 1995 and the discharge of criminal
proceedings against the master of the Estai did not occur until after the
conclusion of the Agreement of 20 April 1995 between the European Community
and Canada on fisheries in the context of the NAFO Convention.
36. Following the exhaustion of living resources in the Canadian 200-mile
zone adjacent to the NAFO Regulatory Area in the 1980s as a result of the
excessive expansion in Canadian coastal fishing which followed the
declaration of the Extended Fisheries Jurisdiction (EFJ) of 1977 (see, for
example, the article by the Canadian author William E. Schruauk, "Extended
Fisheries Jurisdiction, Origins of the Current Crisis in Atlantic Canada's
Fisheries", in Marine Policy, 1995, Vol. 19, No. 4, pp. 285-299) and as
the crisis in the exclusive zone became increasingly serious, Canada has
become more and more demanding in its claims concerning fisheries in the
NAFO Regulatory Area, that is to say on the high seas. This has given rise
to disagreements within NAFO between Canada and other parties to the NAFO
Convention, notably the European Union.
37. It is also necessary to keep in mind the background to the conflict of
February/March 1995 between Canada and the European Community within NAFO.
In February 1995 Canada took steps within NAFO to reduce substantially the
total allowable catch (TAC) of Greenland halibut in the NAFO Regulatory
Area to 27,000 tonnes per year, whilst allocating to herself the lion's
share of 16,300 tonnes, that is to say [p 595] 10,300 tonnes more than in
1994. Some 60 per cent of the 1995 TAC within the NAFO Regulatory Area was
thus reserved for Canada. At the same time Canada succeeded, still within
NAFO and by a majority of one vote, in having the quota reserved for
European Union fishermen fixed at some 12 per cent of the 1995 TAC, namely a
mere 3,400 tonnes of Greenland halibut. According to Canada's own press the
quota was stingy, nonviable, far smaller than the catch which European
Union fishermen were accustomed to taking in the area and insufficient for
their needs, whilst the volume allocated to Canada exceeded her fishing
capabilities (see, for example, the editorial of 18 April 1995 in The Globe
and Mail; Memorial of Spain, Annexes, Vol. I, Ann. 23). It can already be
seen that in this 1995 crisis between the European Union and Canada the
issue is not just one of "conservation" but quite clearly of "apportionment"
of resources.
Faced with this situation, the European Community had recourse to the
objection procedure as it was legitimately entitled to do under the NAFO
Convention claiming that the NAFO quotas proposed by Canada were not
acceptable, and, without altering the established TAC, itself fixed at
18,630 tonnes the quota of Greenland halibut designated for European
Community fishermen (including Spanish fishermen) fishing in the area.
Quotas fixed by NAFO are not applicable to a party which makes an objection
under the relevant provisions of the NAFO Convention.
38. Canada's initial reaction to the position adopted by the European Union
in the February/March conflict within NAFO was the adoption, on the pretext
of overfishing, of the Regulations of 3 March 1995 extending the Canadian
coastal fisheries protection legislation to Spanish and Portuguese vessels.
This claim to jurisdiction on the high seas was followed by the proposal
for a 60-day moratorium on fishing for Greenland halibut referred to in the
Canadian Note Verbale of 10 March 1995 quoted at paragraph 32 above.
39. On 6 March 1995 the European Union agreed to enter into bilateral
negotiations with Canada concerning its dispute within NAFO, but it did not
consent regarding the proposed moratorium and reiterated its opposition to
Canadian legislation controlling the fishing activities of non-Canadian
vessels outside the 200-mile limit (Statement by the General Affairs
Council of the European Union of 6 March 1995; Memorial of Spain, Annexes,
Vol. I, Ann. 10). It was then that the second Canadian reaction took place,
and that the Estai was forcibly boarded.
40. It is to this Statement by the European Union of 6 March 1995 that the
Canadian Note Verbale of 10 March 1995 (see para. 32 above) makes reference
when it speaks of the disappointment felt on 9 March 1995 by Minister
Ouellet and of the position of the European Union which, in its words, had
forced Canada to take measures of coercion against Spanish vessels fishing
in the NAFO Regulatory Area; and, as we [p 596] have just seen, on 9 March
1995 the Estai had become the first target of those measures.
41. The above considerations (which are confirmed by other documents
submitted to the Court and by publications in the public domain) give a
sufficiently precise idea of what Canada was really seeking to achieve in
February/March 1995, namely, to alter the ground rules in the NAFO
Regulatory Area to the detriment of those rights enjoyed by the European
Union and its member States in the said Area by virtue of the NAFO
Convention and the general international law of the sea. Canada wished to
modify in its own favour at least three aspects of the existing legal
situation in the area: (1) to secure recognition by the European Union of
preferential rights of jurisdiction and control over fisheries within the
NAFO Regulatory Area; (2) to secure recognition by the European Union, by
virtue of its position as a coastal State, of preferential rights in the
apportionment of TAC quotas without any regard for the parities established
in this respect by the NAFO Convention; (3) to amend the objection procedure
provided by the NAFO Convention, or restrict its exercise to the detriment
of the European Union. Bearing all this in mind, it becomes evident that the
measures taken at the beginning of March 1995 against Spanish fishing
vessels (adoption of the Regulations of 3 March 1995; boarding of the
Estai; harassment of other Spanish fishing vessels) constituted, in truth,
measures directed at the European Union with no other aim but to secure
concessions from the latter for the purpose of achieving the objectives
which I have just outlined. Thus what was at stake here was not conservation
but revision of the law in the NAFO Regulatory Area.
42. The Note Verbale of the European Community and its member States of 10
March 1995 is correct when it refers to "the Act under the cover of which
Canada claims to take" unilateral measures against Spanish fishing vessels.
This fact is not without relevance to the Court's task in the present
incidental proceedings and yet the Judgment totally ignores it. Here is a
good example of a question which merited a response that we do not find in
the Judgment.
43. During the days which followed the boarding of the Estai, other Spanish
vessels (Monte Agudo, Freiremar Uno, Josι Antonio Nores, Ver-del, Arosas,
Mayi Cuatro and Pescamaro Uno) were subjected to various measures of
harassment and control by a number of Canadian coast-guard and patrol
vessels. All of these acts of harassment took place within the NAFO
Regulatory Area, that is to say on the high seas. In the face of increasing
tension in the Area and in order to protect her fishing fleet, Spain
despatched a certain number of ships of her own navy, which began to arrive
in the Area from 17 March 1995. The document entitled "Reports on the Part
Played by the Spanish Navy in the Fishing Grounds of the NAFO Area" observes
in its concluding paragraph that:[p 597]
"During practically the whole of our stay in the area [between 17 March and
4 April, approximately], the Spanish fishing vessels were harassed by
Canadian patrol boats, with greater or lesser intensity. On certain
occasions the patrol boats failed to respect the Inter-national Convention
on the International Regulations for Preventing Collisions at Sea."
(Memorial of Spain, Annexes, Vol. I, Ann. 5.)
44. In the case of the vessel Pescamaro Uno, the patrol boat Leonard J.
Cowley cut its trawl-warps, an act which caused the loss of its gear and
endangered the life of the crew members on board. The above-mentioned
document describes as follows the harassment of the Pescamaro Uno on 26
March 1995:
"At about 21.30 hours on that same day, five Canadian patrol boats returned
and, as they drew close to the Spanish fleet, dispersed and harassed
different fishing vessels with their projectors. The Pescamaro Uno informs
us that a tug boat and the Leonard J. Cowley both drew alongside it and a
member of the latter vessel's crew addressed the Spanish trawler in Spanish,
saying that 'it was violating regulations aimed at protecting Canadian
coastal fishing. He ordered it to stop its engines at once and put down a
ladder so that it could be boarded as, under Canadian legislation, it was
not authorised to fish for Greenland halibut in that area'. We told him,
from the Vigνa, that they were in breach of the NAFO regulations and of
international law; they answered that they were obeying the laws of Canada
and not those of NAFO. Given the negative response from the Captain of the
Spanish vessel, the Leonard J. Cowley gave it a period of time in which to
clear its crew from the deck, saying that it was going to cut its
trawl-warps. The Canadian tug boat shone powerful projectors on the
Pescamaro Uno to light it up and, at the same time, sailed past it from
stern to bow, just a few metres away from its side. After having sailed past
the bow of the Spanish fishing boat, it took a 90 degree turn to pass at a
right angle to its bow, at which time it loosed a cutting device (doubtless
a grapnel) which sliced through the trawl-warps of the Spanish trawler, with
the subsequent loss of all the gear and endangering the fishermen who were
on deck at that time. After that incident the fleet and ourselves moved off
in an easterly direction, leaving the Canadian patrol boats behind.
At no time did the patrol boats involved in the events of 26th hoist NAFO
inspection flags; they only hoisted two flags and one other giving the
number of the International Code SQ3 (meaning 'Stop or put your engines in
neutral gear, I am about to board your vessel'), while at the same time they
kept on repeating that they were acting in accordance with the coastal
legislation of Canada." (Ibid.)
45. These acts of harassment subsequent to the boarding of the Estai, [p
598] committed by Canada against Spanish vessels fishing in the NAFO
Regulatory Area, occurred both before and after the commencement of these
proceedings, as is shown by the Notes Verbales addressed to Canada by Spain
on 27 March and 7 April 1995 (Memorial of Spain, Annexes, Vol. I, Anns. 3
and 4). Canada did not respond to those Notes. Bilateral negotiations
between Spain and Canada on matters concerning the subject-matter of this
dispute were not possible in March 1995. The Judgment remains totally silent
on the subject of all these developments subsequent to the boarding of the
Estai, and indeed to the commencement of these proceedings.
46. Thus, on 28 March 1995, Spain, in reliance upon the fact that both
States were declarant States under the optional clause system, filed in the
Registry of the Court an Application instituting proceedings against Canada
"with respect to a dispute concerning certain aspects of the jurisdiction
exercised by Canada in relation to fisheries" (second paragraph of the Order
of 2 May 1995; emphasis added) and the case received the title of Fisheries
Jurisdiction (Spain v. Canada). The Application makes it clear that the
question submitted to the Court is not the conservation and management of
fisheries resources [but] the right to exercise jurisdiction over the high
seas and [its] opposability to Spain, and in particular the opposability to
Spain of Canada's claim to exercise jurisdiction over vessels flying the
Spanish flag on the high seas and Canada's responsibility by reason of the
forcible boarding of the Estai on the high seas.
47. By a letter dated 31 March 1995 from the Permanent Representative of
Spain to the United Nations, distributed as an official document of the
General Assembly and the Security Council (doc. A/50/98, S/1995/ 252), the
Spanish Government informed the United Nations Secretary-General of the
dispute between Spain and Canada in the following terms:
"On instructions from my Government, I have the honour to inform you that in
recent weeks situations of tension have occurred on the high seas in the
North-West Atlantic between fishing vessels flying the Spanish flag and
Canadian patrol boats, and that these have involved the use of force on the
part of the latter.
In particular, I wish to refer to the fact that on 9 March 1995 the fishing
vessel Estai, flying the Spanish flag, was arrested in international waters
by Canadian patrol boats using armed force. Both the fishing boat and the
crew were taken to the port of St. John's, where they were detained until
their subsequent release on bail. It should be emphasized that when paying
the bail, the owner of the detained vessel made an explicit statement of
non-recognition of the jurisdiction of the Canadian courts.
Subsequent to these incidents, various acts of harassment by [p 599]
Canadian patrol boats of Spanish fishing vessels operating on the high seas
have taken place, including a serious incident on 26 March in which the nets
of the Spanish fishing vessel Pescamar 1 were deliberately cut by a Canadian
patrol boat.
These actions, which constitute a flagrant violation by Canada of
international law and of the Charter of the United Nations, have caused
serious harm to Spanish citizens and in some cases have endangered their
lives and physical integrity, a situation to which the Spanish Government
has reacted by immediately making the relevant protests through the
diplomatic channel, while fully reserving its rights and its claim to the
corresponding compensation for the damage and injury sustained.
As an additional means of defending its nationals, the Spanish Government
has decided to send two units of the Spanish Navy to the area where the
incidents took place to protect Spanish vessels engaging in their activities
under the protection of the principle of freedom of the high seas and in
conformity with the applicable regulations established by the competent
international organizations.
In addition, as part of the Spanish Government's firm intention to resolve
international disputes by peaceful means in accordance with the provisions
of the Charter of the United Nations, on 28 March 1995 Spain filed the
relevant complaint against Canada with the International Court of Justice,
seeking its ruling and the restoration of the rights violated.
I should be grateful if you would have this letter circulated as a document
of the General Assembly, under items 39 and 98 (c) of the preliminary list,
and of the Security Council."
48. Given that the present incidental proceedings raise certain questions
of interpretation in relation to the enforcement of the said conservation
and management measures by coercive means, that is by the use of force
against Spanish fishing vessels on the high seas, it is well to recall here
that there were "threats to use force" by Canadian Government vessels
during the period while Spanish ships continued to fish in the NAFO
Regulatory Area after the boarding of the Estai (until about the beginning
of April 1995). There were moments of considerable tension between the two
countries, which were moreover not unrelated to the ups and downs in the
negotiations being held simultaneously in Brussels between the European
Union and Canada with a view to the resolution of their dispute within NAFO.
Contemporary publications and reports in the press and other public media
spoke of threats, intimidation, turbot war, "rules of engagement" of the
Canadian Navy, etc. [p 600]
49. A single example, which needs no comment, will suffice to illustrate
the facts that I have just recounted. In an article published on 17 April
1995 in the Toronto Globe and Mail, under the headline "Naval Threat Brought
Turbot Deal. Diplomacy Prevailed as Canadian Warships Sailed towards
Confrontation with Spain", we read inter alia the following:
"Ottawa set in motion a naval contingency plan that had been drawn up some
time before, and was known to all Canadian officials to involve the risk of
gunfire.
Two heavily armed navy gunboats, the frigate Gatineau and the destroyer
Nipigon, sailed for the disputed zone to back up six fisheries patrol and
Coast Guard vessels on station in the north-west Atlantic.
The Spanish fishing fleet of about 16 trawlers was protected by two of
Spain's patrol boats, armed only with small-bore cannons. The Spanish could
not match the firepower of the Canadian flotilla.
Sources say the Canadian maritime command kept the Spanish military fully
informed of the whereabouts of the Canadian gunboats so as to avoid an
accidental confrontation.
When Spain was told that the Gatineau and the Nipigon were being brought
into play there could be no doubt in Spanish minds of the seriousness of
Canada's intentions, a diplomatic source said.
As the Canadian ships converged on the disputed zone, the senior Canadian
officials in Ottawa and Brussels warned key European diplomats that the
government's patience was exhausted.
The ranking Ottawa-based diplomats of the EU, Spain and France were called
into the Department of Foreign Affairs late Friday night and warned by
deputy minister Gordon Smith that the clock was ticking and that Canada
would 'shortly' resume fisheries enforcement action, such as the seizure of
trawlers or cutting of nets." (Memorial of Spain, Annexes, Vol. I, Ann. 23.)
50. The account of the facts of the case given in the Judgment makes no
distinction between the "facts which are the source" of the dispute and
"other facts" that are also material to the present incidental proceedings,
but for other purposes, and in particular for purposes of interpretation of
the reservation contained in paragraph 2 (d) of Canada's declaration of [p
601] 10 May 1994. These latter types of fact are set out in a sufficiently
detailed manner in the Judgment. The same cannot be said of the account of
the "facts which are the source" of the dispute before the Court. That is
perhaps one of the reasons for the Judgment's surprising finding on the
issue of the "subject of the dispute" submitted by Spain to the Court. It
explains also why I have expatiated in this dissenting opinion on the "facts
which are the source" of the dispute. After all, the Judgment deals both
with the issue of the definition of the subject of the dispute and with the
interpretation of Canada's declaration, and there are facts that are
material as much to the first question as to the second.
51. In this case, moreover, particular attention needs to be paid to this
factual distinction. Otherwise the underlying intention invoked by the
Respondent could create still further confusion. The intention with regard
to the "facts which are the source" of the dispute of March 1995 is not
necessarily the same as that which the Respondent may have had, or claims to
have had, in May 1994 when it deposited its declaration of acceptance of the
compulsory jurisdiction of the Court. I now pass on to an examination of the
issue of the subject of the dispute before the Court.
Chapter III. The Subject of the Dispute
A. The Notion of the Subject of the Dispute and its Constituent Elements
52. It is an accepted principle that:
"Whether there exists an international dispute is a matter for objective
determination. The mere denial of the existence of a dispute does not prove
its non-existence." (Interpretation of Peace Treaties, I.C.J. Reports 1950,
p. 74; emphasis added.)
In the present preliminary incidental proceedings, the "existence" of a
dispute between the Parties at the date of the filing in the Court Registry
of Spain's Application of 28 March 1995 is not questioned. The Parties are
agreed on the matter. But they are far from being agreed on another issue
also requiring "objective determination" by the Court, namely the
"identification" of the dispute submitted by the Applicant and its
"subject". How must the subject of the dispute be determined? The Court's
jurisprudence leaves no room for doubt in this respect: "The Court would
recall that the subject of the present dispute is indicated in the
Application and in the Principal Final Submission of the Swiss Government .
. .", Switzerland being the applicant State in the case (Interhandel,
Judgment, I.C.J. Reports 1959, p. 21; emphasis added).
53. Furthermore, Article 40 of the Statute requires the application to
indicate the "subject of the dispute", and this is confirmed by Article 38,
paragraph 1, of the Rules of Court. Paragraph 2 of Article 38 further
provides that the application must in particular both specify "the precise
nature of the claim", namely the thing requested or the petitum, and
contain "a succinct statement of the facts and grounds on which the claim
is [p 602] based", that is, the reasons of fact and law underlying the
claim, the causa petendi. The "subject of the dispute" must therefore not be
reduced to the "subject of the claim" (see, for example, G. Guyomar,
Commentaire du Rιglement de la Cour Internationale de Justice, 1983, p.
236). The "subject of the claim" is but one component of the "subject of the
dispute".
54. As long ago as 1927, Judge Anzilotti stressed that, of the three
traditional elements identifying a dispute submitted to the Court, namely
persona, petitum and causa petendi, those determining the subject of the
dispute were the latter two. As the eminent judge said, the expression "that
particular case" in Article 59 of the Statute "covers both the object and
the grounds of the claim" and:
"It is within these limits that the Court's judgment is binding, and it is
within these same limits that Article 60 provides that any Party shall have
the right, in the event of a dispute, to request the Court to construe it."
(Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzσw), Judgment No.
11, 1927, P.C.I. J, Series A, No. 13, p. 23.)
55. For its part, as has just been pointed out, the causa petendi comprises
the elements both of fact and of law referred to in Article 38, paragraph
2, of the Rules of Court. In different language, the passages cited below,
taken from opinions of Judges Anzilotti and Read, also confirm that the
causa petendi of an Applicant is constituted by elements of fact and of law:
"in such a claim [for legal redress] the specification of the subject of the
dispute can only be a statement of that which the Applicant wishes to obtain
from the Court and of the reasons of law or of fact on the basis of which he
feels entitled to obtain it (petitum et causa petendi)" (Interpretation of
the Statute of the Memel Territory, Merits, Judgment, 1932, P. C.I.J.,
Series AIB, No. 49, p. 350, dissenting opinion of Judge Anzilotti);
"the merits of a dispute consist of the issues of fact and law which give
rise to a cause of action, and which an applicant State must establish in
order to be entitled to the relief claimed" (Anglo-Iranian Oil Co.,
Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 148, dissenting
opinion of Judge Read).
56. It follows from the foregoing that the causa petendi of an application
always consists of a set of originating facts or circumstances, legally
characterized by the applicant by reference to certain general principles of
law that it claims to have been breached by the respondent to its
detriment. It is therefore very important always to bear in mind both the
elements of fact and the elements of law of the causa petendi on which the
applicant relies in its application in support of its claim, in order to be
in a position to identify and determine the subject of the dispute in
ques-tion. This is particularly true in the preliminary phase of a case, for
the petitum may be the subject of submissions which, without exceeding the
[p 603] overall scope of the subject of the dispute as reflected in the
application, may be modified by the applicant up to the end of the oral
phase on the merits. The causa petendi, for its part, cannot be modified
without a change of case.
57. The Judgment of the Court in the case concerning Certain Phosphate
Lands in Nauru provides confirmation of this view, if such be needed, when
it deals with the question raised by Nauru's fresh claim concerning the
overseas assets of the British Phosphate Commissioners (I. C.J. Reports
1992, pp. 264-267, paras. 62-71). As the Judgment reminds us, any additional
claim must have been implicitly contained in the Application (I.C.J. Reports
1962, Judgment, p. 38) or must arise directly out of the question which is
the subject-matter of that Application (I. C.J. Reports 1974, p. 203, para.
72). The jurisprudence of the Permanent Court also amply confirms this (see,
for example, P. C.I. J., Series AIB, No. 52, p. 14, and No. 78, p. 173).
58. To the general requirement that account must always be taken of both
components of the subject of the dispute in order to identify it, there must
be added, in the present incidental proceedings, the actual language of the
basis of jurisdiction in question, which uses the word "disputes" and not
"claims" (see paragraph 2 of Canada's declaration of 10 May 1994). That
paragraph of the Canadian declaration in fact uses the word "disputes" five
times, including in the reservation contained in paragraph 2 (d). It is
therefore on the term "disputes" that the Court must concentrate and not on
the word "claim", which is a legally much narrower term not featuring in
the Canadian declaration and which, without transforming the overall subject
of the dispute to which the Application relates, is open to modification by
the applicant up to the end of the oral phase on the merits.
B. The Subject of the Dispute in the Light of the Applicant's "Causa
Petendi" and "Petitum"
59. As we have seen above in our examination of the facts constituting the
source of this dispute, the factual elements of Spain's causa petendi are
basically two in number, namely (1) the existence of Canadian coastal
fisheries protection legislation authorizing, in the internal legal order of
Canada, the exercise of certain acts of jurisdiction by that country over
non-Canadian ships in the NAFO Regulatory Area (an area of the high seas),
which legislation was made applicable (in March/April ,1995) to Spanish
ships fishing in that area by the Canadian Regulations of 3 March 1995; and
(2) the forcible boarding in that area of the high seas, on 9 March 1995, of
the Spanish ship Estai by Canadian coastguard vessels or patrol boats, after
they had received "the necessary authorizations" from the competent
Canadian authorities (which boarding was followed in March/April 1995 by the
harassment of other Spanish vessels fishing in the area of the high seas in
question). [p 604]
60. The Canadian Coastal Fisheries Protection Act ceased to be applied to
Spanish fishing vessels at the beginning of May 1995, when Canada repealed
the Regulations of 3 March 1995, but the Act is still in force and therefore
could again be extended by Canada to Spanish vessels as it was in
March/April 1995. Furthermore, the Applicant considers that the mere
existence of the Canadian legislation in question is illegal under
international law, regardless of any specific measure of enforcement. This
accords with the jurisprudence of the Court in the Advisory Opinion
concerning Applicability of the Obligation to Arbitrate under Section 21 of
the United Nations Headquarters Agreement of 26 June 1947 (I. C.J. Reports
1988, p. 12). In that Opinion, which concerned the United States
Anti-Terrorism Act, signed into law on 22 December 1987, the Court rejected
the contention of the United States that the alleged dispute did not exist
since the Anti-Terrorism Act in question had not yet been applied (ibid.,
pp. 29-30, paras. 39-44)FN1. It goes without saying that the opposability of
a national statute or other legislation may be challenged before the Court,
as happened in fisheries jurisdiction cases in 1973 and 1974.
---------------------------------------------------------------------------------------------------------------------
FN1
We observe here a modification in the jurisprudence of the Court. This is
but one example; there are others in the present Judgment that concern
matters of general relevance to international judicial decisions. The
Judgment in fact abounds in jurisprudential innovations, reaching a number
unprecedented in a single decision. Canada has been a remarkably fortunate
litigant, for every one of these modifications and innovations has gone in
its favour a rare occurrence indeed.
---------------------------------------------------------------------------------------------------------------------
61. With regard to the legal elements of the causa petendi, Spain's
Application (point 2 of the Application, pp. 7-9) relies on certain
well-known principles of general international law, some of which have been
codified. Basically, the principles involved are those relating to the
regime of the high seas (legal status of the high seas as res communis;
exclusive jurisdiction of the flag State over its vessels on the high seas;
exercise by States of the freedoms of the high seas; co-operation in
conservation and management of the resources of the high seas; safety at
sea, etc.), together with principles of the United Nations Charter and of
general international law concerning prohibition of the threat or use of
force in international relations, good faith in the discharge by States of
their international obligations, and the primacy of international law over
internal law in international relations. The Application does not adduce as
legal grounds in support of the claim the provisions of the 1978 NAFO
Convention.
62. These legal grounds of Spain's Application are amply sufficient, in view
of the factual elements cited, to establish the Applicant's causa petendi.
It is on these legal grounds, and not on others which might also have been
open to it, that the Applicant has chosen to base the claim contained in the
Application. Of these grounds, the foremost are unquestionably those
relating to the exclusive jurisdiction of the flag State over [p 605] its
vessels on the high seas and the prohibition of the threat or use of force
against foreign vessels exercising on the high seas the peaceful freedoms or
activities accorded in respect of that part of the sea to all States by
international law and international agreements.
63. In this respect, the Applicant asserts: (1) that these legal principles
exist in international law; (2) that in this case they confer certain rights
on Spain; and (3) that in this case these rights have been violated by
Canada.
64. As to the petitum, Spain's Application (point 5) requests:
(A) that the Court declare that the legislation of Canada, in so far as it
claims to exercise a jurisdiction over ships flying a foreign flag on the
high seas, outside the exclusive economic zone of Canada, is not opposable
to Spain;
(B) that the Court adjudge and declare that Canada is bound to refrain from
any repetition of the acts complained of, and to offer to Spain the
reparation that is due, in the form of an indemnity the amount of which must
cover all the damages and injuries occasioned; and
(C) that, consequently, the Court declare also that the boarding on the high
seas, on 9 March 1995, of the ship Estai flying the flag of Spain and the
measures of coercion and the exercise of jurisdiction over that ship and
over its captain constitute a concrete violation of the principles and norms
of international law mentioned in the Application (see legal elements of
the causa petendi).
65. For the purposes of the present jurisdictional phase, the relevance of
these claims by the Applicant lies in the fact that, like the causa petendi,
they confirm the nature of the dispute on which the Applicant is requesting
the Court to give judgment in the present case. It can readily be seen that
the dispute is not one concerning fishing or measures of conservation
and/or management of living resources of the high seas. As expressly stated
in the Application (point 4), the dispute submitted to the Court by the
Applicant:
"does not refer exactly to the disputes concerning those measures, but
rather to their origin, to the Canadian legislation which constitutes their
frame of reference. The Application of Spain directly attacks the title
asserted to justify the Canadian measures and their actions to enforce them,
a piece of legislation which, going a great deal further than the mere
management and conservation of fishery resources, is in itself an
internationally wrongful act of Canada, as it is contrary to the fundamental
principles and norms of international law; a piece of legislation which for
that reason does not fall exclusively within the jurisdiction of Canada
either, according to its own Declaration (para. 2 (c) thereof). Moreover,
only as from 3 March 1995 has an attempt been made to extend that
legislation, in a discriminatory manner, to ships flying the flags of Spain
and Portugal, [p 606] which has led to the serious offences against
international law set forth above. The question is not the conservation and
management of fishery resources, but rather the entitlement to exercise a
jurisdiction over areas of the high seas and the opposability of such
measures to Spain." (Emphasis added.)
This is quite clearly a claim in international responsibility on account of
acts alleged by the Applicant to constitute breaches of international law
imputable to the Respondent State, and committed to the detriment of the
respect due to Spanish sovereignty and to Spain's exclusive jurisdiction
over ships flying its flag on the high seas.
66. The first main claim (point A) of the petitum requests the Court to
declare that the legislation of Canada is not opposable to Spain in so far
as it has been invoked, and may still be invoked, to justify the exercise of
Canada's jurisdiction over ships flying the Spanish flag on the high seas.
However, the Court is not asked to declare that legislation invalid. All
that is claimed is its non-opposability to Spain. The claim thus does not go
as far on this point as those of the United Kingdom and the Federal Republic
of Germany in the Fisheries Jurisdiction cases of 1973-1974. It should also
be noted that the claim speaks of "ships", not of "fishing vessels" and that
it refers to "the high seas" as a whole, with no restriction to any
particular area thereof.
67. Having thus defined the Applicant's causa petendi and petitum, we are
now in a position to determine the subject of the dispute, that is to say,
the real issue before the Court, the true question submitted to it by the
Applicant. This question is of the utmost relevance to the present
incidental proceedings since, as the Court stated in 1960, in its Judgment
in the case concerning Right of Passage over Indian Territory: "In order to
form a judgment as to the Court's jurisdiction it is necessary to consider
what is the subject of the dispute" (I.C.J. Reports 1960, p. 33). Why, then,
does the Application state that there is a dispute between Spain and Canada,
"which, going beyond the framework of fishing, seriously affects the very
integrity of the mare liberum of the high seas and the freedoms thereof, a
basic concept and category of the international order for centuries, and
implies, moreover, a very serious infringement of the sovereign rights of
Spain, a disquieting precedent of recourse to force in inter-State relations
..." (point 3 of the Application)?
68. Because, according to the Applicant, the Canadian legislation relied
upon by the Respondent to justify the exercise by Canada of its jurisdiction
on the high seas over foreign ships and applied by it in 1995 to Spanish
fishing vessels, with, moreover, recourse to force, cannot con-stitute a
title in international law in relations between the two States, ire-[p
607]spective of the position under Canadian domestic law with regard to the
characterization and scope of the measures adopted by Canada and the
enforcement, within that legal framework, of such measures by its
authorities and agents.
69. To this view of the Applicant with regard to the legal position, Canada
opposes its own view; hence the emergence of a disagreement in this respect
between the two States over the issue of Canada's title or lack of title to
act on the high seas against Spanish ships. The Applicant has made it clear
that it uses the word "title" in the sense of the decision in the Frontier
Dispute case, where the Court stated that the concept of title:
"may also, and more generally, comprehend both any evidence which may
establish the existence of a right, and the actual source of that right"
(Frontier Dispute (Burkina Fasol Republic of Mali), I. C.J. Reports 1986, p.
564, para. 18).
That it was Canada's title or lack thereof that was the subject of the
dispute brought before the Court by the Applicant was confirmed in Spain's
Memorial on jurisdiction and, in the absence of a Reply, amply addressed by
the Agent and Counsel of Spain in oral argument.
70. Spain argues that Canada lacks international title, and that from this
there flows a whole series of significant consequences for the task
incumbent upon the Court in the present incidental proceedings, and inter
alia contends that:
(a) the measures adopted by Canada in regard to Spanish vessels on the high
seas, and the enforcement of such measures by the authorities and agents of
Canada through the use of force, constitute internationally wrongful acts
engaging Canada's international responsibility vis-α-vis Spain and cannot
be regarded, in international law, as measures of management and
conservation of resources or the enforcement of such measures by a State,
whether or not it be a coastal State bordering on the area of the high seas
in question;
(b) the dispute brought before the Court by Spain as the flag State
concerns neither fishing nor the management or conservation of living
resources in the NAFO Regulatory Area, but is in reality a conflict over
sovereign jurisdiction on the high seas between Canada and Spain as a result
of Canadian legislation, which is still in force and which has created a
situation or continuing international wrongful act that underlies the
serious violation by Canada in 1995 of the sovereignty of Spain on the high
seas;
(c) by reason of its subject, the dispute laid before the Court by Spain
does not fall within the scope of paragraph 2 (d) of Canada's declaration,
for it concerns a logical and legal prerequisite, a fundamental premise,
having in international law an existence so independent [p 608] of and
separate from measures for the conservation and management of resources
that it cannot be regarded as implicitly included in a reservation of this
type, given the general structure of the declaration; and
(d) the subject of the dispute laid before the Court does not concern
fisheries management and conservation, but the issue of the exercise of
jurisdiction and control by the flag State over its ships on the high seas;
this is furthermore not a matter covered by the powers transferred to the
European Community by its member States, from which it follows that the
Agreement concluded in 1995 between the Community and Canada in the
framework of NAFO could not have rendered the present dispute moot, as
Canada asserts in Chapter IV of its Counter-Memorial.
71. According to Spain, neither the exercise of fishing by vessels of Spain,
Canada or a third country nor the conservation and management of living
resources of the high seas in the NAFO Regulatory Area or elsewhere form
part of the subject of the dispute it has laid before the Court. As just
stated, it is Spain's contention that the dispute concerns Canada's
international title or lack thereof to seek to exercise its jurisdiction on
the high seas over Spanish ships and/or use force against such ships in that
area of the sea without Spain's consent. For the Applicant, Canada
possesses no such title; nor can the use of force against the Estai in
reliance on Canadian legislation be in accordance either with general
international law or with the Charter of the United Nations.
72. In this context the Agent of Spain recalled that, according to the
Court's jurisprudence, natural adjacency did not create any international
title over the high seas, as the Chamber of the Court made clear in the case
concerning the Gulf of Maine:
"it is therefore correct to say that international law confers on the
coastal State a legal title to an adjacent continental shelf or to a
maritime zone adjacent to its coasts; it would not be correct to say that
international law recognizes the title conferred on the State by the
adjacency of that shelf or that zone, as if the mere natural fact of
adjacency produced legal consequences" (Delimitation of the Maritime
Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 296,
para. 103; original emphasis).
73. It should also be pointed out that the Canadian legislation in question
(including the Regulations) does not indicate, whether by express reference
or otherwise, any international title of Canada or even a claim to such a
title as a basis for the measures envisaged (or for their enforcement) in
regard to non-Canadian vessels on the high seas. The Canadian legislation is
silent on Canada's international title to act unilaterally in the NAFO
Regulatory Area of the high seas. The reservation [p 609] contained in
paragraph 2 (d) of Canada's declaration is also silent on this. Thus any
international title of Canada forms part neither of its coastal fisheries
protection legislation nor of the declaration of 10 May 1994.
74. It should also be recalled that the rule of exclusive jurisdiction of
the flag State over its ships on the high seas is a long-standing customary
rule of international law, which the Permanent Court, in its Judgment in the
"Lotus" case, stated in the following terms:
"A corollary of the principle of the freedom of the seas is that a ship on
the high seas is assimilated to the territory of the State the flag of which
it flies, for, just as in its own territory, that State exercises its
authority upon it, and no other State may do so. All that can be said is
that by virtue of the principle of the freedom of the seas, a ship is placed
in the same position as national territory . . ." ("Lotus", Judgment No. 9,
1927, P.C.I.J, Series A, No. 10, p. 25.)
C. Title as a Cause of Action in the Light of the Jurisprudence of the Court
regarding the Law of the Sea
75. In order to be able to exercise jurisdiction over an area of the sea,
States must be in possession of a title. The jurisprudence of the Court
regarding the law of the sea abounds in passages devoted to this eminently
legal question of title, one which is, moreover, a matter of international
law and, as such, falls within the general jurisdiction of the Court and is
also covered by the notion of "legal disputes" contained in Article 36,
paragraph 2, of the Statute.
76. Furthermore, the title of States to exercise jurisdiction over an area
of the sea is a question readily separable from other matters also
pertaining to principles of the international law of the sea. It has the
requisite existence and autonomy to be able to stand on its own as the
subject of a claim for legal redress before the International Court of
Justice. The jurisprudence of the Court amply bears this out.
77. In this connection, given that the present case involves the high seas
and only the high seas, that is to say, a maritime area with the status of
res communis in international law, it is appropriate to begin consideration
of that jurisprudence by recalling what the Court said in its 1993 Judgment
in the case concerning Maritime Delimitation in the Area between Greenland
and Jan Mayen:
"The coast of Jan Mayen, no less than that of eastern Greenland, generates
potential title to the maritime areas recognized by customary law, i.e., in
principle up to a limit of 200 miles from its baselines." (I.C.J. Reports
1993, p. 69, para. 70; emphasis added.)
It is therefore correct to assume, for the purposes of the present
incidental proceedings, that the coasts of Canada geographically adjacent
to [p 610] the "NAFO Regulatory Area" generate potential title to the
maritime areas recognized by customary law up to a limit of 200 miles from
their baselines. The Estai was boarded on 9 March 1995 it should be
recalled some 245 miles from the Canadian coast. The Respondent has not
denied this fact in the present incidental phase of the case.
It is likewise correct, given that we are dealing here with the high seas,
to assume as our starting point that this maritime area is open to all
States, that it is reserved for peaceful purposes and that no State may
validly purport to subject any part of it to its sovereignty (Articles 87,
88 and 89 of the 1982 Convention on the Law of the Sea).
78. A few examples will amply serve to illustrate the contention that title
as a legal category of the law of the sea can on its own provide a
sufficient cause of action to support proceedings before the Court. In the
1985 Judgment in the Continental Shelf (Libyan Arab JamahiriyalMalta) case,
it is stated that:
"There has . . . been much debate between the Parties in the present case as
to the significance, for the delimitation of and indeed entitlement to
the continental shelf, of State practice in the matter, and this will be
examined further at a later stage in the present judgment. Nevertheless, it
cannot be denied that the 1982 Convention is of major importance, having
been adopted by an overwhelming majority of States; hence it is clearly the
duty of the Court, even independently of the references made to the
Convention by the Parties, to consider in what degree any of its relevant
provisions are binding upon the Parties as a rule of customary
international law. In this context particularly, the Parties have laid some
emphasis on a distinction between the law applicable to the basis of
entitlement to areas of continental shelf the rules governing the
existence, "ipso jure and ab initio", and the exercise of sovereign rights
of the coastal State over areas of continental shelf situate off its coasts
and the law applicable to the delimitation of such areas of shelf between
neighbouring States." (I.C.J. Reports 1985, p. 30, para. 27; emphasis
added.)
It is evident that this passage of the Judgment draws a clear distinction
between "the law applicable to the basis of entitlement" and "the law
applicable to the delimitation" of the continental shelf. It regards them as
two different legal categories.
Clearly, therefore, the question of the basis of Canada's title to exercise
its national jurisdiction on the high seas over ships flying the Spanish
flag the subject of the dispute laid before the Court by Spain is not a
question that we are permitted, in law, to confuse with that of the rules of
international law governing the conservation and management of the living
resources of the high seas or with those of the measures adopted and/or
enforced for such purposes by States. It has its own separate existence. [p
611]
79. Title is, moreover, a legal prerequisite for action taken in respect of
the sea; it is the title or right to the exercise of jurisdiction in a given
maritime area that is decisive for the settlement of any questions arising
in relation to other legal issues pertaining to that area, and not vice
versa. And why? Because the international law of the sea constitutes a
coherent legal order. Thus, in its Judgment in the Continental Shelf (Libyan
Arab JamahiriyalMalta) case referred to above, the Court states:
"The Court has little doubt which criterion and method it must employ at the
outset in order to achieve a provisional position in the present dispute.
The criterion is linked with the law relating to a State's legal title to
the continental shelf. As the Court has found above, the law applicable to
the present dispute, that is, to claims relating to continental shelves
located less than 200 miles from the coasts of the States in question, is
based not on geological or geo-morphological criteria, but on a criterion of
distance from the coast or, to use the traditional term, on the principle of
adjacency as measured by distance. It therefore seems logical to the Court
that the choice of the criterion and the method which it is to employ in the
first place to arrive at a provisional result should be made in a man-ner
consistent with the concepts underlying the attribution of legal title."
(I.C.J. Reports 1985, pp. 46-47, para. 61; emphasis added.)
80. The Judgments of 1974 in the Fisheries Jurisdiction (Merits) cases
between the United Kingdom and Iceland and between the Federal Republic of
Germany and Iceland also draw a clear distinction between the question of
legal title (the disagreements over "Iceland's unilateral extension of its
fisheries jurisdiction [up to 50 nautical miles]") and the question of the
allocation of fisheries resources and measures to conserve those resources
(the disagreements "as to the extent and scope of [the] respective rights
[of the Parties] in the fishery resources and the adequacy of measures to
conserve them") (I.C.J. Reports 1974, p. 21, para. 47).
81. The possibility of basing proceedings before the Court on the issue of
title to act on the high seas is also accepted in the 1973 Judgments
concerning Fisheries Jurisdiction (Jurisdiction of the Court), where the
Court states:
"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." (I.C.J. Reports
1973, p. 20, para. 42; emphasis added.) [p 612]
It is precisely Canada's "competence" to "assert a jurisdiction" in the NAFO
Regulatory Area of the high seas over Spanish vessels that constitutes the
subject of the dispute laid before the Court by Spain, and it is on the
jurisdiction of the Court to settle this issue that a decision must be
reached in the present incidental proceedings, having regard to the
reservation contained in paragraph 2 (d) of Canada's declaration>
I~ his separate opinion appended vo those Judgments of 1973, Judge
Fitzmaurice draws the necessary distinction, in the case of the high seas,
between the issue of title on the one hand and, on the other, measures to
conserve fisheries, thus:
"agreed measures of conservation on the high seas for the preservation of
common fisheries in which all have a right to participate, is of course a
completely different matter from a unilateral claim by a coastal State to
prevent fishing by foreign vessels entirely, or to allow it only at the will
and under the control of that State. The question of conservation has
therefore no relevance to the jurisdictional issue now before the Court,
which involves its competence to adjudicate upon a dispute occasioned by
Iceland's claim unilaterally to assert exclusive jurisdiction for fishery
purposes up to a distance of #50 nautical miles from and around her coasts."
(I.C.J. Reports 1973, pp. 26-27; emphasis added.)
82. Thus, even assuming for the sake of argument that Canada's contentions
in the present incidental proceedings regarding interpretation of the
reservation in paragraph 2 (d) of its declaration were correct, the Court
would still have to determine whether the measures in question and their
enforcement could by their very nature give rise, in international law, to
a dispute whose subject concerns only the issue of the title to take or
enforce such measures and whether, should the terms of the reservation make
no mention of the matter, the reservation can nonetheless be interpreted as
comprising within the category of disputes which it excludes those arising
out of conduct by Canada prima facie lacking in title or contrary to a title
held by Spain under international law.
83. What is, however, certain in the light of the above jurisprudence of the
Court is that Spain, as Applicant, has a procedural right entitling it to
bring before the Court a dispute whose subject is, in the final analysis,
simply the title or lack of title of Canada to act as it did in regard to
Spain on the high seas. Spain is entitled to institute proceedings against
Canada concerning only this question of title as a distinct and autonomous
legal category of the law of the sea. The legal interest of Spain, as a
sovereign State, in securing a decision by the Court on a dispute having
this alone as its subject is self-evident. It is indisputable and needs no
comment. The Judgment, however, ignores this legal interest of the [p 613]
applicant State. This is a serious thing a very serious thing for an
international judicial body like the Court to do.
D. The Respondent's Position on the Subject of the Dispute
84. Canada has had difficulties with the subject of the dispute in Spain's
Application. In the written phase of the present incidental proceedings it
was evasive on the matter, while at the same time seeking to replace it with
a different subject, namely fisheries conservation and man-agement. However,
Canada refrained from filing a counter-claim or a principal application
against Spain on this other possible subject. As I have already pointed out
in Chapter I of this dissenting opinion ("The Unusual Procedure"), the
Canadian Counter-Memorial deals not with the exercise of State jurisdiction
on the high seas but with the crisis in the conservation of fishery
resources in the North-West Atlantic as the "factual and historical
context" of the present dispute. Canada claims that the subject of the
dispute with Spain is the conservation and management of fisheries in the
area, a question, moreover, which according to the Counter-Memorial had
already been settled (the mootness argument). These arguments of the
Respondent well illustrate its refusal to recognize the true subject of the
dispute laid before the Court by Spain.
85. Why has the Respondent sought to redefine or evade in its
Counter-Memorial the true subject of the dispute before the Court? Quite
simply out of lack of confidence in the scope of the reservation contained
in paragraph 2 (d) of the declaration on which it relies. Canada has sought
to replace the true subject of the dispute before the Court with a different
subject, falling as such within the scope of that reservation. To do this,
Canada was obliged to argue that the subject of the dispute submitted by
Spain was the same as that of disputes covered by the reservation con-tained
in paragraph 2 (d) of Canada's declaration.
86. Thus, as regards the written phase, it may be concluded that, for
Canada, the dispute submitted by Spain was a dispute over the conservation
and management of resources. However, that was asking rather too much of the
Application and the reservation. Accordingly, during the oral phase, in the
face of the Spanish arguments, Canada somewhat changed its ground with
regard to the identity of the subject of the dispute with that of the
reservation, while of course keeping in mind its aim of bringing the dispute
laid before the Court within the scope of those excluded by paragraph 2 (d)
of its declaration of acceptance of the compulsory jurisdiction of the
Court.
87. Thus at the hearings Canada proceeded to formulate an argument on the
subject of the dispute different from that in its Counter-Memorial. It was
in this new context that counsel for Canada finally addressed the real
subject of the dispute as laid before the Court by Spain. Evidently, for
them, the subject of the dispute contained in the Application was a mere
argument of the Applicant, "the Spanish thesis". It was but a step [p 614]
from there for counsel to arrogate to themselves the right to put forward a
different thesis, having a similar procedural function to that of the
Applicant, and that step was duly taken. Thus at the oral proceedings the
issue of the subject of the dispute became intertwined with that of the
respective roles of applicant and respondent in defining the subject of a
dispute. Nonetheless, at the hearings the Canadian counsel did finally
address the subject of the dispute as set out in Spain's Application and
acknowledge that: "The criterion of the reservation the dividing line
between what does and what does not pertain to the jurisdiction of the Court
is the subject of the dispute." (CR 98/14, p. 25.)
In effect, during the oral phase Canada relied on an argument that I call
the "also" argument. It contended that the subject of the dispute submitted
by Spain was concerned not exclusively with fisheries or the management or
protection of living resources but also with these questions. From this,
counsel for Canada concluded that the said dispute was excluded by the terms
of the reservation contained in paragraph 2 (d) of the Canadian declaration.
To get to this point, counsel simply ignored both the concept of dispute and
that of the subject of the dispute.
88. Canada began by replacing the concept oν dispute, the term used in the
reservation contained in paragraph 2 (d) of the declaration, by "factual
category":
"The first point to note about the Canadian reservation ... is that it
refers to a factual category. It excludes from the Court's jurisdiction
everything falling within a defined class of fact situations, namely:
anything directly or indirectly related to fisheries conservation and
management measures taken by Canada against vessels fishing in the NAFO
Regulatory Area . . . any dispute involving this legislation [Bill C-29] or
actions taken under it falls within the factual ambit of Canada's
reservation and therefore outside the jurisdiction of the Court." (CR98/11,
p. 46; emphasis added.)
This initial operation thus consisted in reducing the notion of "dispute"
to the factual elements of the causa petendi. It simply ignores the entire
legal aspects of the causa petendi and the petitum of the Applicant.
"Dispute" thus becomes equivalent to the "factual elements" of the causa
petendi. Yet the case-law of the Court shows us that "the facts and
situations which have led to a dispute must not be confused with the
dispute itself (Interhandel, Judgment, I.C.J. Reports 1959, p. 22).
Moreover, the case-law of the Court does not tell us that particular facts
or situations can give rise to only one and the same dispute between two
States, or that the Court can be seised of only one dispute by those States,
or that the Court can have jurisdiction for one such dispute while not
having it for another.
And why is it that the case-law does not and cannot say that? Because, [p
615] in international judicial proceedings, the factual elements relied upon
to establish the right of action which is the legal embodiment of the claim
or petitum must always be accompanied by references to law or to a
legitimate interest, or by the indication of a relevant legal text or
principle, in other words the legal grounds on which the petitum or claim
rests.
89. The operation then continued with a reformulation of the notion of
"subject of the dispute" in international proceedings. The causa petendi and
the petitum of the Application were said to be insufficient to identify the
subject of the dispute. Thus a third element was added, namely the law
applicable to the merits by the Court. But how was this done? By contending
that "a dispute is constituted by an indivisible whole comprising facts
together with rules of law" and adding that "the Court cannot have
jurisdiction with regard to one of these elements and not have juris-diction
with regard to the other" (CR 98/12, p. 40). Now these "rules of law", which
on the Canadian argument would become one of the two constituent elements in
determining the subject of an international dispute, are claimed to cover
both the legal elements of the causa petendi and the law applicable to the
merits by the Court! In this way Canada introduces a new additional general
criterion for establishing the jurisdiction of the Court, one required
neither by the relevant texts nor by the Court's jurisprudence, and which
may have its place at the jurisdiction stage only when expressly provided
for in the documents conferring jurisdiction in the case.
90. The legal elements of the causa petendi are not, whatever Canada may
contend, the law applicable to the merits by the Court to settle the dispute
between the Parties, but the principles of international law, the legal
yardsticks relied on by the applicant in its suit to characterize in law the
totality of the facts in order to found the claim (petitum) which it lays
before the Court in its application. Granted, international law as a legal
order, and indeed the term "international dispute" as it is properly
understood (persona, causa petendi and petitum), entails the notion of
unity, but the concept of the Court's "jurisdiction", which is based on the
will of those subject to that jurisdiction, does not form part of that
"indivisible whole" in the sense referred to by Canada. On the contrary,
the Court's jurisdiction is fragmented and this is how international law
wishes it to be. Canada's thesis is thus founded on a confusion between the
legal elements of the causa petendi which are elements in the definition
of the dispute and of its subject-matter and which are accordingly relevant
for the purpose of determining whether the Court has "jurisdic-tion" in a
particular case and the law applied to the merits by that same Court in
order to settle the dispute in question.
91. The titles conferring jurisdiction may of course exclude or modify the
law applicable to the merits by the Court, although this is not the case in
the present incidental proceedings, but the law applicable to the merits can
in no circumstances be an element in the definition or identification [p
616] of a dispute as such, or of its subject, in international proceedings.
The purpose of the Canadian argument was of course not a purely theoretical
one. It resulted from Canada's wish to extend as widely as possible the
scope of the reservation in paragraph 2 (d) of its declaration of
acceptance of the compulsory jurisdiction of the Court, although it was
formu-lated in the declaration as "an exception" to compulsory jurisdiction
otherwise accepted. I cannot accept an argument making of a reservation
formulated in terms of the conservation and management of living resources
of the sea a sort of "black hole" to use the terminology of Spain's
counsel that would swallow up any dispute over the rules governing the
high seas and the rights thereover enjoyed by States under the international
law of the sea and why not? the entire corpus of international law and
of the obligations set out in the United Nations Charter.
92. Spain opposed rightly in my opinion those attempts by Canada to
intervene in the determination of the subject of the dispute to which the
Application of 28 March 1995 related. I can only agree with the principle
that the respondent cannot redefine or change the subject of the dispute
laid by an applicant State before the Court in its application.
This is clearly a procedural right of the applicant. The procedural means
open to the respondent are the preliminary objection, the counterclaim and
the possibility of filing its own principal application in opposition to
that of the original applicant. Canada did not avail itself of any of these
three possibilities. Instead, it sought to disregard the subject of the
dispute as defined in Spain's Application or to replace it with the subject
of a dispute of the kind referred to in the reservation to its declaration.
However, the respondent enjoys no such procedural right, subject of course
to its right to put to the Court its view regarding the subject of the
dispute as defined by the applicant in its application.
E. Does the New Definition of the Subject of the Dispute Contained in the
Judgment Accord with the Applicable Law and with the Jurisprudence of the
Court?
93. In paragraph 35 of the Judgment, the subject of the dispute before the
Court is defined as follows:
"The specific acts . . . which gave rise to the present dispute are the
Canadian activities on the high seas in relation to the pursuit of the
Estai, the means used to accomplish its arrest and the fact of its arrest,
and the detention of the vessel and arrest of its master, arising from
Canada's amended Coastal Fisheries Protection Act and implementing
regulations. The essence of the dispute between the Parties is whether these
acts violated Spain's rights under international law and require reparation.
The Court must now decide whether the Parties have conferred upon it
jurisdiction in respect of that dispute."[p 617]
However, this definition, apparently accepted by the majority, corresponds
neither to that resulting from a natural and reasonable reading of the text
of Spain's Application of 28 March 1995, having regard to the intention of
the Applicant at the time when it filed that Application in the Court
Registry, nor to its Memorial and oral arguments, nor indeed to the
submissions lodged by Spain at the end of the present phase of incidental
proceedings, in which its Agent confirmed that:
"the subject-matter of the dispute is Canada's lack of title to act on the
high seas against vessels flying the Spanish flag, the fact that Canadian
fisheries legislation cannot be invoked against Spain, and reparation for
the wrongful acts perpetrated against Spanish vessels" [including the
forcible boarding of the Estai and the harassment of other Spanish vessels]
(see paragraph 12 of the Judgment).
94. There is thus nothing new in those Spanish submissions confirming the
subject of the dispute as defined by the petitum and the causa petendi of
the Application of 28 March 1995. On the other hand, the definition set out
in paragraph 35 of the Judgment is one presenting very serious problems, on
account both of its new content (in relation to the subject of the dispute
as set out in the Application) and of the fact that the Court thereby
substituted itself for the Applicant.
*
95. The Judgment arrives at its definition of the subject of the dispute in
paragraph 35 on the basis of the following finding in paragraph 34:
"The filing of the Application was occasioned by the specific acts of Canada
which Spain contends violated its rights under international law. These
acts were carried out on the basis of certain enactments and regulations
adopted by Canada, which Spain regards as contrary to international law and
not opposable to it. It is in that context that the legislative enactments
and regulations of Canada should be considered."
96. Such a finding first raises the question of what the Judgment means in
using this form of wording. It would seem that the intention was to avoid
ruling on principles of international law in abstracto. If so, I fail to see
the connection with Spain's Application of 28 March 1995. The Application
speaks only of Canada's acts. That is to say, specific conduct or actions by
Canada, of an actual concrete nature and admitted by the Respondent. It is
this course of conduct by Canada that constitutes the source of the present
dispute and, above all, the adoption of the Regulations of 3 March 1995
(extending to Spanish vessels fishing in the NAFO Regulatory Area the
application of another act of Canada, namely the Coastal Fisheries
Protection Act as amended on 12 May 1994) and the boarding of the Estai. It
is this ensemble of Canadian con-[p 618] duct or acts and not Canada's
legislative, regulatory or other texts as such that is at issue. We are
concerned here not with the legislation as such, but in truth with the
specific conduct by Canada of which Spain was the victim. For Spain, that
conduct violated its rights on the high seas in March and April 1995 and
could do so again in the future, since the Act as amended in 1994 is still
in force in Canada. Those are the specific actions that Spain's Application
requests the Court to make good by means of a Judgment. There is nothing
abstract about them.
97. Moreover, inasmuch as the Application presented the issue in terms of
the non-opposability to Spain of the relevant Canadian legislation, there
can be absolutely no doubt that, as far as the Application is concerned, the
subject of the dispute laid before the Court is Canada's internationaltitle
to act vis-α-vis Spanish vessels on the high seas as it did in March and
April 1995. The boarding of the Estai is but one specific aspect, a
by-product of the principal subject of the Application. In defining the
subject of the dispute, the Judgment reverses the natural order of things.
*
98. The two categories of Canada's acts covered by the subject of the
Application and by the Applicant's submissions are thus:
(1) the adoption of the Regulations of 3 March 1995 applying to Spanish
vessels fishing in the NAFO Regulatory Area (of the high seas) the Canadian
Coastal Fisheries Protection Act as amended in 1994; and
(2) the pursuit and forcible boarding of the Estai on 9 March 1995 and the
subsequent harassment of other Spanish ships also lawfully fishing in the
NAFO Regulatory Area, that is to say on the high seas.
Spain's Application denies that Canada possesses any international title to
act as it did in either case.
99. The present dispute is thus a dispute between Spain and Canada over the
exercise of certain State powers against Spanish ships assumed proprio motu
by Canada in respect of the high seas without the consent of Spain (conflict
of jurisdiction) and not a dispute concerning differences between the
European Union and Canada or between Spain and Canada over the management
and conservation of living resources in the NAFO Regulatory Area (management
and conservation conflict within NAFO). The Application is quite precise in
this respect. One has only to read it or, rather, wish to read it. [p 619]
100. The complaint in the Spanish Application is based on the two series of
acts with which Canada is reproached and which, in the absence of any
international title on the latter's part, the Applicant asserts to be
internationally wrongful acts incurring Canada's international
responsi-bility towards Spain. According to the Applicant, these acts
violate rights that Spain, as a sovereign State, derives from general
international law and, in particular, its right to respect for freedom of
navigation and of fishing on the high seas for its ships and its right to
exclusive exercise of jurisdiction over those ships on the high seas.
*
101. If we compare what I have just said on the subject of the dispute
submitted by Spain's Application with the definition of the dispute
according to paragraphs 34 and 35 of the Judgment, it can be seen that the
differences are striking and surprising. It is clear that the Judgment
presents the subject of the dispute in a manner radically different from the
Application instituting proceedings, the Memorial and the oral arguments
and submissions of the Applicant. The Court is thereby substituting itself
for Spain in defining the subject of the dispute submitted by the latter on
28 March 1995!
102. Thus the first principal request set out in point 5 of the Application
request A which governs the remainder of Spain's petitum or complaint,
namely the non-opposability to the Applicant of the Canadian legislation in
question, has quite simply disappeared from the subject of the dispute as
reformulated by the Court. Hence there remains, in relation to the original
subject of the dispute, only request C of the petitum or complaint set out
in Spain's Application. But that is not all. Request C has also undergone a
radical change by comparison with the Application. It now becomes a request
solely concerning the "measures" taken by Canada in regard to the Estai
without reference to the fundamental issue of "sovereignty" raised by the
Application in terms of Canada's international title so to act. In effect
paragraph 35 of the Judg-ment takes good care to avoid any reference to the
rule of the exclusive jurisdiction of the flag State over its ships on the
high seas and to the matter of Canada's international title to take the
measures referred to in request C. Thus the aim of this redefinition by the
Judgment of the subject of the dispute cannot be clearer. The majority
ignores the principal causa petendi and petitum of the Application by
suppressing any reference, direct or indirect, to Canada's international
title, or lack thereof, to take the actions complained of by Spain, both as
regards the opposability of the Canadian legislation to Spain and in
relation to the boarding of the Estai.
103. This judicial transformation of the subject of the dispute is
justified in the Judgment by the following argument, which in effect
consists of two limbs: [p 620]
"It is for the Court itself, while giving particular attention to the
formulation of the dispute chosen by the Applicant, to determine on an
objective basis the dispute dividing the parties by examining the position
of both Parties." (Judgment, para. 30; emphasis added.)
This is a justification accepted without question by the Judges making up
the majority, but it is one which, in my view, lacks any basis in fact or in
law. I reject it absolutely and without compunction, for in my view it is
compatible neither with the relevant principles and rules of law nor with
the case-law of the Court, or with the circumstances of the case. Let me
make it clear at once that I cannot accept such a reformulation of the
subject of a dispute brought under the optional clause system. In my view of
the law it is unsustainable, in light of: the principles of the system; the
general principles of law and logic which govern international judicial
proceedings; the Statute and the Rules of Court; the sovereign status of the
Applicant; and the Court's own case-law in the matter.
104. Defining the subject of disputes laid before the Court by application
by sovereign States is not a function of the Court. To assert the contrary
is to assume an extremely heavy responsibility in terms of the sound
administration of international justice, for it is an elementary rule that
one cannot be at the same time both judge and litigant. Moreover, should
this Judgment one day come to constitute a precedent, declarant States under
the optional clause system must be aware that they may henceforth find
themselves going into the Peace Palace with a given dispute, only to emerge
later bound by the res judicata of a judgment relating to a dispute having a
different subject. What will they then have to say of the sovereign right
that they possessed when they took the decision to bring a particular
dispute before the Court? And what, more generally, will they have to say of
their consent to the Court's jurisdiction? The future will bring us a reply
to these troubling questions. It is the privilege of the applicant to
"define" the dispute which it lays before the Court, while the latter is
free to evaluate, clarify or interpret the subject of the dispute submitted
to it. That is the limit of the Court's powers in the matter, for "defining"
means having power to "change". The power of the Court to determine its own
jurisdiction, under Article 36, paragraph 6, of the Statute, does not
comprise any such power of change. I should be the last to deny the duty of
the Court to isolate the real issue in the case and, hence, its power to
evaluate, clarify or interpret the subject of an application. But to change
the subject or to replace it with an entirely new one is quite another
matter. That is to forsake the judicial settlement of international disputes
and set off instead in some unknown direction.
105. My position of principle on this question of the "definition" by the
Court of the subject of the dispute submitted in the Application (first limb
of the argument in the Judgment) is developed, with all requisite precision,
in the joint dissenting opinion of Judges Onyeama, Dillard, [p 621] Jimenez
de Arechaga and Sir Humphrey Waldock appended to the 1974 Judgments in the
Nuclear Tests cases. I endorse it for the purposes of the present opinion.
The relevant paragraphs read as follows:
"11. In a case brought to the Court by means of an application the formal
submissions of the parties define the subject of the dispute, as is
recognized in paragraph 24 of the Judgment. Those submissions must therefore
be considered as indicating the objectives which are pursued by an
applicant through the judicial proceedings.
While the Court is entitled to interpret the submissions of the parties, it
is not authorized to introduce into them radical alterations. The Permanent
Court said in this respect: '. . . though it can construe the submissions of
the Parties, it cannot substitute itself for them and formulate new
submissions simply on the basis of arguments and facts advanced' (P. C.I.
J., Series A, No. 7, p. 35, case concerning Certain German Interests in
Polish Upper Silesia). The Judgment (para. 29) refers to this as a
limitation on the power of the Court to interpret the submissions 'when the
claim is not properly formulated because the submissions of the parties are
inadequate'. If, however, the Court lacks the power to reformulate
inadequate submissions, a fortiori it cannot reformulate submissions as
clear and specific as those in this case.
12. In any event, the cases cited in paragraph 29 of the Judgment to justify
the setting aside in the present instance of the Applicant's first
submission do not, in our view, provide any warrant for such a summary
disposal of the 'main prayer in the Application'. In those cases the
submissions held by the Court not to be true submissions were specific
propositions advanced merely to furnish reasons in support of the decision
requested of the Court in the 'true' final submission. Thus, in the
Fisheries case the Applicant had summarized in the form of submissions a
whole series of legal propositions, some not even contested, merely as steps
logically leading to its true final submissions (I.C.J. Reports 1951, at
pp. 121-123 and 126). In the Min-quiers and Ecrehos case the 'true' final
submission was stated first and two legal propositions were then adduced by
way of furnishing alternative grounds on which the Court might uphold it
(I.C.J. Reports 1953, at p. 52); and in the Nottebohm case a submission
regarding the naturalization of Nottebohm in Liechtenstein was considered by
the Court to be merely 'a reason advanced for a decision by the Court in
favour of Liechtenstein' on the 'real issue' of the admissibility of the
claim (I.C.J. Reports 1955, at p. 16). In the present case, as we have
indicated, the situation is quite otherwise. The legality or illegality of
the carrying out by France of atmospheric nuclear tests in the South Pacific
Ocean is the basic issue submitted to the Court's decision, and it seems to
us wholly unjustifiable to treat the Applicant's request for [p 622] a
declaration of illegality merely as reasoning advanced in support of its
request for an Order prohibiting further tests.
13. In accordance with these basic principles, the true nature of the
Australian claim, and of the objectives sought by the Applicant ought to
have been determined on the basis of the clear and natural meaning of the
text of its formal submission. The interpretation of that submission made
by the Court constitutes in our view not an interpretation but a revision of
the text, which ends in eliminating what the Applicant stated is 'the main
prayer in the Application', namely the request for a declaration of
illegality of nuclear atmospheric tests in the South Pacific Ocean. A
radical alteration or mutilation of an applicant's submission under the
guise of interpretation has serious consequences because it constitutes a
frustration of a party's legitimate expectations that the case which it has
put before the Court will be examined and decided.
14. The Judgment revises, we think, the Applicant's submission by bringing
in other materials such as diplomatic communications and statements made in
the course of the hearings. These materials do not justify, however, the
interpretation arrived at in the Judg-ment. They refer to requests made
repeatedly by the Applicant for an assurance from France as to the cessation
of tests. But these requests for an assurance cannot have the effect
attributed to them by the Judgment. While litigation is in progress an
applicant may address requests to a respondent to give an assurance that it
will not pursue the contested activity, but such requests cannot by
themselves support the inference that an unqualified assurance, if
received, would satisfy all the objectives the applicant is seeking through
the judicial proceedings; still less can they restrict or amend the claims
formally submitted to the Court. According to the Rules of Court, this can
only result from a clear indication by the applicant to that effect, through
a withdrawal of the case, a modification of its sub-missions or an
equivalent action. It is not for nothing that the submissions are required
to be presented in writing and bear the signature of the agent. It is a non
sequitur, therefore, to interpret such requests for an assurance as
constituting an implied renunciation, a modification or a withdrawal of the
claim which is still maintained before the Court, asking for a judicial
declaration of illegality of atmospheric tests. At the very least, since the
Judgment attributes intentions and implied waivers to the Applicant, that
Party should have been given an opportunity to explain its real intentions
and objectives, instead of proceeding to such a determination inaudita
parte." (I.C.J. Reports 1974, pp. 316-317.)
106. The present Judgment does indeed cite in support of its definition of
the subject of the dispute the 1974 Judgments of the Court in the [p
623]Nuclear Tests cases. Those Judgments feature prominently in the present
Judgment (see paragraphs 30, 31 and 32). Let us see then what they say on
the question, without making any cuts in the relevant passage:
"Thus it is the Court's duty to isolate the real issue in the case and to
identify the object of the claim. It has never been contested that the Court
is entitled to interpret the submissions of the parties, and in fact is
bound to do so; this is one of the attributes of its judicial functions. It
is true that, when the claim is not properly formulated because the
submissions of the parties are inadequate, the Court has no power to
'substitute itself for them and formulate new submissions simply on the
basis of arguments and facts advanced' (P. C.I.J., Series A, No. 7, p. 35),
but that is not the case here, nor is it a case of the reformulation of
submissions by the Court. The Court has on the other hand repeatedly
exercised the power to exclude, when necessary, certain contentions or
arguments which were advanced by a party as part of the submissions, but
which were regarded by the Court, not as indications of what the party was
asking the Court to decide, but as reasons advanced why the Court should
decide in the sense contended for by that party. Thus in the Fisheries case,
the Court said of nine of the thirteen points in the Applicant's
submissions : 'These are elements which might furnish reasons in support of
the Judgment, but cannot constitute the decision' (I.C.J. Reports 1951, p.
126)." (I.C.J. Reports 1974, pp. 262-263, para. 29; pp. 466467, para. 30.)
On reading this passage one can see that there is no question of
"definition" by the Court of the subject of the dispute. On the contrary,
the 1974 Judgments distinguish very clearly between, on the one hand, "[the
Court's duty] to isolate the real issue in the case and to identify the
object of the claim" and, on the other, "the reformulation of submissions by
the Court". It is even emphasized that the Court has no power to substitute
itselffor the parties and formulate new submissions when the submissions of
the parties themselves are inadequate. The only power which the Court allows
itself in this passage is that of distinguishing between "contentions or
arguments" and "claims" in the "submissions" of the parties and, in regard
to its Judgment, between elements pertaining to the "reasons" therefor and
the "decision" itself.
107. It must also be recalled that, in the Judgments in the 1974 Nuclear
Tests cases, the question then considered arose in the context of a possible
"mootness superveniens" and not in connection with the determination of the
Court's "jurisdiction" as in the present case. Furthermore, the Respondent
had failed to appear before the Court. The procedure applied was therefore
that of Article 53 of the Statute, which lays upon the Court special duties
of vigilance. This is not the case either in the present proceedings. Even
so, some of the dissenting judges in 1974 strongly criticized the manner in
which the Court at the time exercised its [p 624] duty to evaluate, clarify
or interpret the submissions of the parties, notwithstanding the very
special circumstances of the case. Which only goes to show that even the
exercise of a duty of this kind is not proof against subjective
appreciations by majorities within the Court. The present Judgment is a
classic example. In consequence the distinction drawn in the Judgment
between, on the one hand, "the formulation of the dispute chosen by the
Applicant" and, on the other, the definition by the Court itself "on an
objective basis" of the subject of the dispute falls far short of securing
my support in the present incidental proceedings.
*
108. Nor can I subscribe to the conclusions of the Judgment with regard to
the consideration to be given to the respective positions of applicant and
respondent in a process the aim of which is the determination or
clarification, as the case may be, by the Court of the subject of the
dispute (second limb of the argument in paragraph 30 of the Judgment). The
Judgment for all practical purposes places the positions of the Parties in
this regard on an identical footing. Yet this is not what the Court's
jurisprudence tells us. For example, in the case concerning Certain
Phosphate Lands in Nauru (Nauru v. Australia) we find the following:
"69. Article 40, paragraph 1, of the Statute of the Court provides that the
'subject of the dispute' must be indicated in the Application; and Article
38, paragraph 2, of the Rules of Court requires 'the precise nature of the
claim' to be specified in the Application. These provisions are so essential
from the point of view of legal security and the good administration of
justice that they were already, in substance, part of the text of the
Statute of the Permanent Court of International Justice, adopted in 1920
(Art. 40, first paragraph), and of the text of the first Rules of that
Court, adopted in 1922 (Art. 35, second paragraph), respectively. On several
occasions the Permanent Court had to indicate the precise significance of
these texts. Thus, in its Order of 4 February 1933 in the case concerning
the Prince von Pless Administration (Preliminary Objection), it stated that:
'under Article 40 of the Statute, it is the Application which sets out the
subject of the dispute, and the Case, though it may elucidate the terms of
the Application, must not go beyond the limits of the claim as set out
therein . . .' (P. C.I. J., Series AIB, No. 52, P- 14).
In the case concerning the Sociιtι commerciale de Belgique, the Permanent
Court stated:
'It is to be observed that the liberty accorded to the parties to [p 625]
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 ... 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. A practice of this kind would be
calculated to prejudice the interests of third States to which, under
Article 40, paragraph 2, all applications must be communicated in order that
they may be in a position to avail themselves of the right of intervention
provided for in Articles 62 and 63 of the Statute.' (P. C.I. J., Series AIB,
No. 78, p. 173; cf. Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, I.C.J. Reports 1984, p. 427, para. 80.)" (I.C.J. Reports
1992, pp. 266-267.)
109. This jurisprudence confirms beyond any possible doubt that it is for
the applicant to define the subject of the dispute, subject only to the
proviso that the submissions cannot go beyond the limits of the claim as set
out in the application. Why not? Because the dispute brought before the
Court by application could then, by subsequent amendments of the
submissions, be transformed into another dispute having a different
character and subject-matter. This could then affect the right of
intervention of third States. But also, and above all, because a change in
the subject of the dispute submitted may have repercussions on the
jurisdiction of the Court. This is just what has happened in the present
case, as a result of the Court's redefinition in the Judgment of the subject
of the dispute. In any event, if the Court ventures to produce
"redefinitions"or "clarifications" which change the subject of the dispute
as set out by an applicant in its application, is it not required, at the
very least, to be guided by the criteria that it has itself applied in the
past to applicant States, as in the case concerning Certain Phosphate Lands
in Nauru! That is a question I am entitled to ask myself.
110. The respondent clearly has the procedural right to adopt a position on
the subject of the dispute as formulated in the application, and the Court
is clearly entitled to take account of the respondent's observations when
evaluating, clarifying or interpreting the subject of the dispute submitted
to it by the applicant; however, the respondent does not participate in the
definition of the subject of the dispute by the applicant and cannot do so
where, as in the present Judgment, the Court, substituting itself for the
applicant, itself assumes the task of and responsibility for "redefining"
the subject of the dispute or formulating a "new definition" thereof. In
effect, the present case reduces the fundamental role of the applicant in
defining the subject of the dispute to that of a mere participant in a
tripartite process, while pacifying it with the statement that the [p 626]
Court will consider its position with "particular attention" when under
taking its definition of the subject of the dispute! (See paragraph 30 of
the Judgment.)
*
111. In support of this extraordinary notion of a sort of round-table
participation by applicant and respondent in a redefinition of the subject
of the dispute by the Court, the Judgment cites a passage from the 1960
Judgment on the merits in the case concerning the Right of Passage over
Indian Territory (paragraph 30 of the Judgment), and once more the 1974
Nuclear Tests Judgments. This latter jurisprudence is ill-chosen indeed for
the purposes of the demonstration, since France, having failed to appear
before the Court, had taken no part in the Court's self-appointed task of
clarifying the subject of the dispute. The following passage could not be
clearer:
"the Court must ascertain the true object and purpose of the claim and in
doing so it cannot confine itself to the ordinary meaning of the words used;
it must take into account the Application as a whole, the arguments of the
Applicant before the Court, the diplo-matic exchanges brought to the Court's
attention, and public statements made on behalf of the applicant
Government" (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 263, para. 30; emphasis added).
112. Nor does the quotation from the Right of Passage case support what the
present Judgment would have it prove. In that case, what was being
interpreted was a condition ratione temporis of India's declaration which
had been joined to the merits in the preliminary phase in 1959, because it
raised issues which were not of an exclusively preliminary nature, given the
subject of the dispute set out in Portugal's Application. The words "the
Submissions of the Parties and statements made in the course of the
hearings" (I.C.J. Reports 1960, p. 33) concern the merits phase of the case
and they are cited in order to "confirm" the subject of the dispute in
Portugal's Application. In the present preliminary proceedings, Canada has
made no submission on the merits and Spain, because of the unusual nature of
the procedure followed, did not submit a Memorial on the merits either.
113. It is true that when, in a given case, an applicant State accompanies
its submissions with "contentions" or "arguments", not as indications of
its petitum or claim (or as their ground or basis), but rather as
considerations or reasons advanced in order to induce the Court to rule in
its favour, the latter may disregard them as elements of the claim or the
basis of the claim. In practice, however, the distinction is not easy to
apply. The present Judgment is the clearest evidence of this. Moreover, [p
627] the 1974 Nuclear Tests Judgments cited in paragraph 32 of the Judgment
are precisely those that have given rise to most controversy in this regard.
And what do those 1974 Judgments say when examined closely? That the Court
took account of certain public statements made by ministers of the Applicant
Parties, though not of the Respondent, in ruling that one of the claims of
the Applicants "would be only a means to an end [the other claim], and not
an end in itself. In those Judgments the Court moreover added that it was
"of course aware of the role of declaratory judgments, but [that] the
present case [was] not one in which such a judgment [was] requested" (I.C.J.
Reports 1974, p. 263, para. 30).
114. In the present case, following the filing of the Application of 28
March 1995, the Spanish authorities did not make any statements that could
be regarded as amending the subject of the dispute laid by Spain before the
Court. Nor did the Canadian authorities notify Spain that they undertook in
future to cease applying their national coastal fisheries protection
legislation to Spanish ships on the high seas, or make any unilateral
declaration to that effect similar to the one issued by France in 1974.
Canada did not make a declaration that it would never again invoke its
coastal fisheries protection legislation against Spanish ships on the high
seas. The issue of the opposability to Spain of that legislation therefore
remains an open one. Furthermore, in the Agreement concluded in Brussels on
20 April 1995 between the European Community and Canada, it is stated that
the two Parties:
"maintain their respective positions on the conformity of the amendment of
25 May 1994 to Canada's Coastal Fisheries Protection Act, and subsequent
regulations, with customary international law and the NAFO Convention"
(point D, 1, of the Agreed Minute which forms part of the Brussels
Agreement).
*
115. Requests A and C of the petitum of Spain's Application accordingly
retain their raison d'etre and it is simply for the Court to decide whether
it does or does not have jurisdiction to adjudicate upon them. The Judgment
fails to do this. That, in my view, is not an acceptable way of replying to
the Applicant.
116. The jurisprudence of the Court in the Advisory Opinion concerning the
case of the Applicability of the Obligation to Arbitrate under Section 21
of the United Nations Headquarters Agreement of 26 June 1947 is particularly
relevant to an understanding of the meaning and scope of request A of
Spain's Application, and to establishing that, both subjectively and
objectively, that request forms part of the subject of the dis-[p
628]puteFN2. Nor did that request become moot when the present Judgment was
rendered. What, then, is the justification for the Judgment's removal of it
from the definition of the subject of the dispute? Can it be seriously
believed that the adoption, application and maintenance in force of the
Canadian legislation are abstract questions of international law in the
present case? Or again that there is any similarity any at all between
the circumstances of the Northern Cameroons case and those of the present
case?
---------------------------------------------------------------------------------------------------------------------
FN2 As the Advisory Opinion states:
"While the existence of a dispute does presuppose a claim arising out of the
behaviour of or a decision by one of the parties, it in no way requires
that any contested decision must already have been carried into effect. What
is more, a dispute may arise even if the party in question gives an
assurance that no measure of execution will be taken until ordered by
decision of the domestic courts." (I.C.J. Reports 1988, p. 30, para. 42.)
---------------------------------------------------------------------------------------------------------------------
117. In arbitral proceedings, questions regarding the subject of the
dispute such as those to which I have just referred may be invoked as
grounds for the annulment of an award. The fact remains that, so far as the
Court is concerned, Article 56 of the Statute settles the matter: "The
judgment shall state the reasons on which it is based." I would add that, in
international judicial proceedings, domestic legislation constitutes an
"act" and the question whether, in a given case, the legislation adopted by
a State amounts to a violation of an international obligation of that State
vis-α-vis another State is undoubtedly one capable of giving rise to an
international dispute and of being settled by the Court on the basis of its
Statute. Finally, as regards special agreements and other titles of
jurisdiction of a conventional kind (paragraphs 29 and 31 of the Judgment),
it should be observed that the reference is again misplaced. In such
situations the subject of the dispute is not determined on the basis of the
peti-tum and the causa petendi in the applicant's application, or of the
submissions, but by the special or other agreement of the parties in
question. The Court then indeed has to interpret the common will of the
parties as expressed in the special or other agreement, should there be
differences of opinion between them in this regard.
F. Conclusion to Chapter III
118. Having regard to the considerations set out in the present chapter as a
whole, I come to the conclusion that the subject of the dispute is indeed
that formulated in Spain's Application of 28 March 1995 and confirmed in
its Memorial and in its oral arguments and submissions during the present
preliminary incidental proceedings. I accordingly reject the definition of
the subject of the dispute given in paragraph 35 of the Judg-[p 629]ment,
along with all the considerations and conclusions relating thereto
(paragraphs 29 to 34 of the Judgment).
119. It is my firm belief that the power of the Court to determine its own
jurisdiction (Article 36, paragraph 6, of the Statute) does not allow it to
"redefine" the subject of disputes that applicant States lay before it by
application in the exercise of their sovereignty. True, in preliminary
proceedings the Court may evaluate, clarify or interpret the subject of the
dispute in an application, but it cannot change it or replace it with
another subject. It is not for the Court to "redefine" the subject of the
dispute. The same applies when, for example, a claim forming part of the
subject of a dispute in the application is inadequately drafted. Here too,
the Court is not entitled to substitute itself for the applicant in order to
make the necessary correction. It invites the applicant to do so and, if the
latter fails to do so, the Court will not adjudicate upon the claim in
question (P. C.I. J., Series A, No. 7, pp. 34-35). This is a far cry from
the jurisprudence established by the present Judgment, which does not even
correct the subject of the dispute submitted by Spain; instead it replaces
it with a new subject. The subject of the Application is thus denatured.
120. In the next chapter of this opinion, Chapter IV, I shall give my views
on the Court's jurisdiction in the present case in light of the reservation
contained in paragraph 2 (d) of Canada's declaration, bearing in mind the
subject of the dispute that I consider to be the true subject of the dispute
laid before the Court in the Application that Spain filed in the Registry on
28 March 1995.
Chapter IV. The Jurisdiction of the Court in the Case
A. General
1. Manifestation of consent to jurisdiction under the optional clause
system: declarations
121. The Court and its predecessor, the Permanent Court, have on many
occasions confirmed the fundamental principle of consent to jurisdiction
laid down in the Statute. For example, in this passage from the Judgment of
1928 in the case concerning Rights of Minorities in Upper Silesia (Minority
Schools):
"The Court's jurisdiction depends on the will of the Parties. The Court is
always competent once the latter have accepted its jurisdiction, since
there is no dispute which States entitled to appear before the Court cannot
refer to it." (Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 22.)
The "compulsory jurisdiction" of the optional clause system is no exception
to the principle of consent to jurisdiction. The types of jurisdiction
accepted by the Statute are distinguished from one another only by the forms
in which consent may be manifested and the time at which such
[p 630] manifestation of consent takes place, but the consent of both
parties is always needed in order for the Court to have jurisdiction in a
given case, even under the optional clause system.
122. Under that system the consent of the parties must be manifested through
the filing of unilateral declarations made in accordance with Article 36,
paragraph 2, of the Statute. States are free to make or not to make such
declarations and to draft, amend, withdraw, replace or termi-nate them, but
during their existence the declarations in question have the legal effect of
signifying acceptance by the declarant State of the compulsory jurisdiction
of the Court in the terms expressed in the declaration, by virtue
specifically of the conventional rule laid down in Article 36, paragraph 2,
of the Statute of the Court.
One of the most characteristic features of the optional clause system is
that the consent of the declarant State is manifested before the dispute
comes into being. Between declarant States proceedings may be instituted by
unilateral application. In proceedings under this system, there are
accordingly an applicant and a respondent, which positions are occupied
respectively by Spain and Canada in the present case.
123. Declarations under Article 36, paragraph 2, of the Statute must be
deposited with the Secretary-General of the United Nations. They are also
registered at the United Nations Secretariat, like treaties, and
subsequently published in the United Nations Treaty Series and in the
Yearbook of the Court. Declarations are unilateral acts involving on the
part of the declarant State an international legal obligation towards other
declarant States, an obligation contemplated by the Statute of the Court,
which is an integral part of the United Nations Charter and of
international law. In other words, they are international obligations
incorporated in unilateral international instruments called "declarations",
whose effects are governed by the Statute of the Court and by international
law. Once it has been made and deposited, the declaration constitutes for
the declarant State a formal, written, international legal undertaking to
accept the compulsory jurisdiction of the Court. All such declarations have
the object and purpose of producing specific legally binding effects in
international relations regarding acceptance of the compulsory jurisdiction
of the Court for the purposes of settlement of disputes between sovereign
States, in accordance with international law.
124. However, the obligation assumed by the declarant State is not an
obligation erga omnes. Its character is both mutual and reciprocal. It has
an effect only in relations with other declarant States not excluded by the
declaration itself (mutuality) and only, moreover, in cases where the
dispute in question falls within the scope both of the consent expressed by
the declaration of the applicant State and within that of the consent
expressed by the declaration of the respondent State (reciprocity). As
stated in Article 36, paragraph 2, of the Statute, applicant and respondent
must have accepted "the same obligation", an expression covering [p 631]
both mutuality and reciprocity. In the present case there are no issues of
mutuality, Spain having deposited its declaration on 15 October 1990 and
Canada on 10 May 1994.
125. Spain's Application of 28 March 1995 having relied solely on those two
declarations to found the jurisdiction of the Court, the present case is one
which, as regards consent to the jurisdiction of the Court, pertains
exclusively to the optional clause system of the Statute.
2. Do the present incidental proceedings raise any question relating to the
principle of consent to jurisdiction or to the non-presumption of such
consent?
126. The fact that Canada's Counter-Memorial has confused the principle of
consent to jurisdiction with the quite different matter of the
interpretation of its declaration of 10 May 1994 cannot create a problem
where it would not otherwise exist. Unfortunately, it is clear from the
Judgment that this strategy has succeeded in the present case. A majority of
the Court has posed the question of jurisdiction, the subject of these
preliminary proceedings, in terms of the principle of consent to
jurisdiction rather than by reference to the interpretation of Canada's
consent as expressed in its declaration of 10 May 1994. It is there that the
real ratio decidendi of this Judgment is to be found regarding the
interpretation of that declaration by the majority.
127. The argument used by Canada to convince the majority of its thesis
consists in mixing together two elements that in themselves are quite
distinct. From the outset it opposed the notion of "genuine consent" to that
of "presumed consent". However, in these proceedings Spain has not relied on
the "presumed consent" of Canada; nor has the objective question of
mutuality between the Parties been at issue. Both Canada and Spain gave
their "genuine consent" when they made their respective declarations of
acceptance of the compulsory jurisdiction of the Court and deposited them
with the Secretary-General of the United Nations.
The reality of a consent by Canada and of a consent by Spain is beyond doubt
in the present case. The only issue facing the Court was that of the scope
of the consent expressed by Canada in its declaration (given that it
disputed jurisdiction) and the only way of resolving that issue was to
interpret that declaration in accordance with international law. However,
Canada's consent as such, as expressed in its declaration, has nothing
presumed about it. It is so genuine that it was able to be deposited,
registered and published.
128. Why then was Canada seeking to oppose to its "genuine consent" a
purported "presumed consent"? All becomes perfectly clear when one [p 632]
examines Canada's Counter-Memorial, particularly the section headed
"Optional Clause Declarations Must Be Interpreted in a 'Natural and
Reasonable Way', Giving Full Effect to the Intention of the Declaring State"
(emphasis added). What Canada sought by that reference to the intention of
the declarant State was that the Court should, through interpretation,
assume the task of constructing a posteriori, to suit Canada's needs in the
present incidental proceedings, a "presumed consent" of Canada taking the
place of the "genuine consent" which it manifested in its declaration of 10
May 1994, and on which Spain relied when filing its Application!
129. This was nonetheless such an extraordinary claim on Canada's part that
one might have supposed that it could not be countenanced by the Court,
particularly bearing in mind that the above heading does not match the
passage from the Judgment in the Anglo-Iranian Oil Co. case upon which it
draws. That passage talks of "a natural and reasonable way of reading the
text, having due regard to the intention of the Government of Iran at the
time when it accepted the compulsory jurisdiction of the Court" (Preliminary
Objection, I.C.J. Reports 1952, p. 104). That is to say, a natural and
reasonable way of reading the text of the declaration, having due regard to
the intention at the time of its deposit, and not a natural and reasonable
way of reading a purported intention of the declarant State, one described,
moreover, in the Counter-Memorial as an "underlying intention". Canada in
fact itself recognized this in other paragraphs of its Counter-Memorial
and, above all, in its argument at the oral phase. Furthermore, the
Anglo-Iranian Oil Co. decision was also systematically cited by Spain in
support of its interpretation of Canada's declaration, but always in its
entirety, that is, without playing hide-and-seek with the words "the text".
130. The ambivalence that Canada maintained throughout the proceedings with
regard to the natural and reasonable construction, whether of its purported
underlying intention or of the text of its declaration, accompanied by the
psychological argument of "genuine consent" as opposed to "presumed
consent", certainly paid off within the Court. A majority accepted Canada's
view by a sort of act of faith. In so doing, it introduced into the process
of interpretation of Canada's declaration, as reflected in the Judgment, the
contentions and arguments put forward by Canada that I have just cited. This
to me is unacceptable, for those contentions and arguments are not elements
applicable, under positive international law as it currently stands, in the
interpretation of international instruments, whether multilateral or
bilateral or, as with declarations, of unilateral origin. In accepting
Canada's thinly-veiled invitation, the majority devoted its efforts in the
reasoning of the Judgment to construing the consent expressed in the
Canadian declaration in the sense sought by the Respondent in the present
incidental proceedings, without greatly concerning itself with that
country's intention in May 1994, when it filed [p 633] its declaration.
However, consent to the jurisdiction of the Court is one thing, while the
legal interpretation of a declaration is quite another. The purpose of
interpreting a declaration is to ascertain the intention expressed in the
declaration itself, and the act of interpretation must take place without
any form of preconception. The interpretative process is conducted on the
basis of the text of the declaration and is an inductive one. In no
circumstances can it be a deductive process founded on legal, political or
psychological preconceptions.
The principle of consent to jurisdiction and of the non-presumption of
consent is not a rule of interpretation of declarations made pursuant to
Article 36, paragraph 2, of the Statute. It is not regarded as having any
part to play in the legal process of interpreting declarations properly
so-called, a process governed by norms of international law, by logical
considerations and by the systems of values recognized and protected by
international law as a whole. I fear that the interpretation placed by the
present Judgment upon Canada's declaration of 1994 is not only based on a
deductive approach, starting from a premise external to the text, but is
also a free interpretation, which takes scant account of the current rules
of international law governing the interpretation of international
instruments. In other words, the Judgment approaches the matter of
interpretation as if we were still at a pre-normative stage in international
law as far as interpretation is concerned.
131. Once a State has acquired the status of declarant State under the
optional clause system, it makes no sense to invoke the principle of
consent to jurisdiction and of the non-presumption of consent as a sort of
prior condition governing the Court's interpretation of the declaration. Of
what relevance is it, for purposes of the interpretation of a declaration,
to declare that the Court derives its authority from the will of States, or
that jurisdiction is never presumed, or again that States are absolutely
free to participate, or not to participate, in the optional clause system?
Neither the Applicant nor anyone else can dispute this, since the principle
in question is an objective rule embodied in the Statute of the Court.
132. Under the optional clause system, when we speak of the consent of a
declarant State to the compulsory jurisdiction of the Court, we are always,
by definition, referring to the consent of that State embodied in its
declaration given prior to the dispute and to the date of institution of the
proceedings, that is to say, to a prior consent given in solemn written
form. In the present case, the prior consent of Canada was manifested on 10
May 1994 when it deposited its declaration. It is now simply a matter of
interpreting that declaration in accordance with the rules of international
law relating to the interpretation of international instruments, rather than
seeking to oppose to the prior consent contained in Canada's declaration a
purported "underlying" consent by Canada, whether political or
psychological one claimed, moreover, to take precedence over that
manifested in the declaration in question. [p 634]
3. Are there any limits to the freedom of States to insert conditions and
reservations in their declarations?
133. The freedom of States to insert conditions and reservations in their
declarations under the optional clause system has been recognized since the
1920s, the era of the League of Nations, and was expressly confirmed at the
San Francisco Conference as an established practice.
134. The Parties in the present case are clearly agreed on the general
principle of the freedom of declarant States to insert conditions and
reservations in their declarations under Article 36, paragraph 2, of the
Statute of the Court. They have, moreover, exercised that freedom when
formulating their current declarations. However, whereas Canada argues that
the right to make reservations is the cornerstone of the optional clause
system and that reservations to declarations are manifestations of the
absolute freedom of States to accept or to restrict compulsory
juris-diction, Spain has spoken, with reference to the reservation contained
in paragraph 2 (d) of Canada's 1994 declaration, of automatic, subjective,
anti-statutory and anti-law interpretations and even of interpretations that
are contrary to the Charter of the United Nations.
Thus the debate between the Parties on this issue relates rather to the
manner of interpreting the reservations made by States than to their
freedom to make such reservations in their declarations. The question of
principle has nonetheless been raised. My position in this respect is that
State sovereignty has little meaning except within the framework of that
legal order which we call "international law" and that consequently there
are no "absolute freedoms" of States, even in regard to the question under
consideration here, but freedoms that must be exercised within the framework
of that order. With regard to reservations in declarations under the
optional clause system, that freedom is very broad but it is not boundless.
135. The first limitation derives from the Statute of the Court itself, the
classic example being "subjective" reservations of national jurisdiction.
However, it is possible to imagine others, such as reservations concerning
incidental or derived powers of the Court arising exclusively from the
Statute, or reservations relating to the binding force or the res judicata
of judgments, or reservations concerning fundamental principles of judicial
proceedings such as the equality of the parties, and so on.
On becoming parties to the Statute, States accept the general jurisdiction
of the Court and the established principles and rules of the judicial
process. No State is obliged to become a party to the United Nations Charter
and the Statute of the Court. Thus, when they do so, they exercise their
sovereign freedom. This entails both rights and obligations for them. It is
therefore contrary to the most elementary legal principles, including that
of good faith, subsequently to invoke those rights while ignoring the
obligations assumed. It should be recalled in this connection [p 635] that
the deposit of declarations under the optional clause system also flows from
a free, sovereign choice and that such declarations are made pursuant to
Article 36, paragraph 2, of the Statute and in accordance with that
conventional provision.
136. I therefore consider that, when faced with a reservation contrary to
the Statute, the Court is entitled to disregard it, for no State has the
right either to distort the nature of the judicial process by inserting
anti-statutory reservations in a declaration under the optional clause
system, or to abuse the good faith and expectations of the other declarant
States. There remains the less well-studied question of a possible
restriction on the freedom to make reservations which breach fundamental
principles or norms of the United Nations Charter or of general
international law. I believe that, in this area too, there exist
restrictions, but here my conclusions require qualification, given the
principle of consent to the jurisdiction of the Court, which also forms part
of the United Nations Charter and of the Statute of the Court.
137. It might be that in some instances a reservation of this kind ought to
be disregarded but not in others. For example, would it be lawful to exclude
by reservation a structural provision such as Article 103 of the United
Nations Charter? Or the powers and attributions of the Security Council
under the Charter? Or the principle of the sovereign equality of States? As
to general international law, there might also be reservations which, by
reason of their object or purpose, could be void. I am thinking, for
example, of reservations made with the intention of promoting a war of
aggression, genocide, the slave trade, or acts of piracy on the high seas,
and so forth. There further remains the particular question that might arise
on account of the existence of rules of jus cogens, for, in the final
analysis, declarations amount to agreements on jurisdiction with each of the
other declarant States.
138. Any State harbouring such an intention must refrain from making a
declaration or do so only in respect of one or more specific categories of
dispute to the exclusion of all others, as it is perfectly entitled to do.
What it is not entitled to do in regard to the other declarant States is to
undermine the optional clause system, that is to say, to commit an abuse of
rights by depositing a declaration that is misleading in its scope and
wording, while reserving the right, when the time comes, to invoke
interpretations that are at variance with the Statute, with the United
Nations Charter or with general international law. States are entitled to
accept or not to accept the optional clause system and to insert conditions
and reservations in declarations, but not to overstep the bounds of the
principles of good faith and mutual trust underlying the system. In
exercising its power to determine its own jurisdiction, the Court should
have no hesitation in exercising such supervision. The present Judgment
declines to do so. For me this is just as serious as its own redefinition of
the subject of the dispute submitted to it by Spain on 28 March 1995.
139. The Judgment refers to the question of reservations being invalid [p
636] or inoperative by reason of their possible incompatibility with the
Statute, with the United Nations Charter and with international law. As
drafted, paragraph 2 (d) of Canada's declaration does not present me with
any problem of incompatibility. Nor, moreover, does the reservation in
paragraph 2 (c) contain any subjective or automatic reservation of national
jurisdiction that would prevent the Court from exercising its power to
determine its own jurisdiction pursuant to Article 36, para-graph 2, of the
Statute of the Court. In my view, the reservation in paragraph 2 (d) of
Canada's declaration does not fall as such within the category of those
reservations which could be regarded prima facie as being excluded from the
freedom to make reservations enjoyed by declarant States. The question
raised by Spain concerned a different issue, namely the interpretation of a
reservation in a manner contrary to the Statute, the United Nations Charter
or to international law. Spain's argument, with which I agree, was that in
the event of doubt as between two possible interpretations of a declaration,
one must, as a general principle, interpret the declaration, including its
reservations, in accordance with the Statute of the Court, with the United
Nations Charter and with international law. The question of the
incompatibility of the Canadian reservation as such, or even of its possible
invalidity, was not raised by the Applicant and the Judgment does not deal
with it. However, the Judgment falls into the trap of a self-judging
approach to the interpretation of reservations, for it has effectively
allowed Canada's purported intended effect to govern its interpretation of
the reservation, inasmuch as, according to the Judgment, that intended
effect is the one which the Respondent claims in the present incidental
proceedings to have had in mind when it made its declaration in 1994.
*
140. I should add that the possibility of applying the notion of
separability to the various parts of a declaration of acceptance of the
compulsory jurisdiction of the Court is in principle beyond question. The
principle as such is accepted. Moreover, the commentary of the
International Law Commission on Article 41 of its final draft articles on
the Law of Treaties expressly acknowledges this in the following passage:
"The question of the separability of treaty provisions for the purposes of
interpretation raises quite different issues from the application of the
principle of separability to the invalidity or termination of treaties.
However, if the jurisprudence of the two Courts does not throw much light on
these latter questions, it is quite certain that judges in separate opinions
in the Norwegian Loans [I.C.J. Reports 1957, pp. 55-59] and
Interhandel[I.C.J. Reports 1959, pp. 57, 77, 78, 116 and 117] cases accepted
the applicability of the principle of separating treaty provisions in the
case of the alleged nullity of a [p 637]unilateral declaration under the
Optional Clause, by reason of a reservation the validity of which was
contested." (United Nations, Official Records of the United Nations
Conference on the Law of Treaties, Documents of the Conference, p. 57.)
141. The Court did not rule on the effect of the established invalidity of a
reservation on the declaration itself. However, in the Norwegian Loans and
Interhandel cases certain judges (Lauterpacht and Spender) held that the
declaration as a whole was invalid, while others (Klaestad and Read) were of
the contrary opinion. Thus, in his dissenting opinion to the Judgment in the
Interhandel (Preliminary Objections) case President Klaestad came to the
following conclusion:
"These considerations have led me to the conclusion that the Court, both by
its Statute and by the Charter, is prevented from acting upon that part of
the Reservation which is in conflict with Article 36, paragraph 6, of the
Statute, but that this circumstance does not necessarily imply that it is
impossible for the court to give effect to the other parts of the
Declaration of Acceptance which are in conformity with the Statute. Part
(a) of the Fourth Preliminary Objection should therefore in my view be
rejected." (7. C.J. Reports 1959, p. 78.)
As far as treaties are concerned, Article 44 of the 1969 Vienna Convention
allows (with certain exceptions) for the separability of treaty provisions
in the event of the invalidation, termination or withdrawal of one of the
Parties or the suspension of the operation of the treaty, provided that the
clause is separable from the remainder of the treaty and was not an
essential basis of the consent of the parties to be bound by the treaty as a
whole. To determine whether such a condition exists thus becomes a question
dependent on the circumstances of the case, which must be resolved by
interpretation. I believe that this solution is applicable mutatis mutandis
to declarations. There can be no question of the declaration being
automatically invalid. The intention of the declarant State has to be
interpreted in the light of the circumstances of the case.
142. With respect to certain categories of reservations to declarations, for
example those termed "subjective" or "self-judging", some modern writers
avoid applying the sanction of nullity to the entire declaration and propose
non-opposability or inadmissibility as alternative solutions. Finally, it
should be noted that the European Court of Human Rights has held that
certain declarations (reservations) relating to particular provisions of the
Convention for the Protection of Human Rights and Fundamental Freedoms were
invalid while at the same time upholding as valid declarations accepting the
jurisdiction of the Court in respect of disputes concerning the Convention
(Judgment of 23 March 1995 in the case Loizidou v. Turkey, Preliminary
Objections). [p 638]
4. Good faith and mutual trust as essential principles of the optional
clause system under the Statute of the Court
143. The Court's jurisprudence contains many decisions on good faith and
mutual trust as essential principles of the optional clause system. For
example, in the Judgment of 1984 on jurisdiction and admissibility in the
case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), which likewise
concerned declarations under Article 36, paragraph 2, of the Statute, it is
stated:
"In fact, the declarations, even though they are unilateral acts, establish
a series of bilateral engagements with other States accepting the same
obligation ... in which the conditions, reservations and time-limit clauses
are taken into consideration. In the establishment of this network of
engagements, which constitutes the Optional Clause system, the principle of
good faith plays an important role; the Court has emphasized the need in
international relations for respect for good faith and confidence in
particularly unambiguous terms . . ." (I.C.J. Reports 1984, p. 418, para.
60; emphasis added.)
144. Article 36, paragraph 2, of the Statute establishes a veritable
"system of jurisdiction", termed "compulsory jurisdiction", which is of an
optional nature in that States parties to the Statute are completely free to
participate in it or to refrain from doing so. Naturally, when the Court
examines cases submitted to it, it is with States' declarations of
acceptance of its compulsory jurisdiction that the Court concerns itself.
But declarations are only the means by which States which so desire
participate in the system, to a greater or lesser extent and for longer or
shorter periods of time. Declarations, which are unilateral acts by States,
are but a means of implementing a system founded on agreement, namely the
Statute of the Court, which forms an integral part of the Charter of the
United Nations. As Article 2, paragraph 2, of the Charter makes clear, all
Members, in order to ensure to all of them the rights and benefits resulting
from membership, "shall fulfil in good faith the obligations assumed by them
in accordance with the present Charter".
145. Consequently, if, through the deposit of a declaration, a State, acting
freely and of its own deliberate choice, assumes solemn legal obligations
vis-a-vis other declarant States in accordance with Article 36, paragraph
2, of the Statute, it follows that those are obligations which, by reason of
their nature, their source and the fact that they are treaty-based, must be
fulfilled by the declarant State in good faith. For example, it would not be
consistent with the good faith of the system for a declarant State to
engage in conduct which deceived other declarant States, or which served as
a cloak of respectability enabling it to commit internationally unlawful
acts. Any such objectives on the part of a declarant [p 639]
State are incompatible with the optional clause system. Any State
harbouring such intentions must abstain from participating in the optional
clause system, for it is not entitled to betray the trust of the other
declarant States, or to frustrate their expectations founded on the
declaration which it has deposited. The principles of good faith and mutual
trust are in no sense extraneous to the optional clause system. On the
contrary, they are an integral part of that system, within which they act as
controls upon the actions or conduct of declarant States and, as such, they
have normative effects open to judicial appraisal.
146. As long as a declarant State participates in and remains within the
optional clause system, it must comply and must be presumed to be
complying with the principles of good faith and mutual trust which are the
guiding principles of that system. The Judgment in this case fails to take
into consideration the normative aspect of these principles in the context
of the optional clause system. This is a serious omission, for, according to
certain admissions, which have been confirmed by information in the public
domain, the circumstances of the case raise worrying questions about the use
which Canada sought to make of the clause system when it drafted its
declaration and then deposited it on 10 May 1994 with the Secretary-General
of the United Nations.
147. In other words, as we shall see further on in this opinion, in the
present case good faith is a factor which not only has a part to play in the
interpretation of the Canadian declaration; it also has a further role,
related to the separate question of the admissibility or opposability to
Spain, in the circumstances of the case, of the reservation contained in
paragraph 2 (d) of Canada's said declaration.
5. Rules and methods for interpreting declarations relied on by the Parties
and general position adopted by the Judgment on the question
148. As I said, these preliminary proceedings do not raise any real problem
as regards the principle of the existence of Canada's consent to the Court's
jurisdiction. Quite apart from the issue of the admissibility or
opposability to Spain of the reservation to Canada's declaration, which is a
separate matter, the real question here is to determine, by interpretation,
the meaning and scope of Canada's said consent as expressed in its
declaration. Thus, the Court must interpret this declaration in order to be
in a position to decide whether it has jurisdiction in the dispute submitted
by Spain, given that Canada contests the Court's jurisdiction on the basis
of the reservation contained in paragraph 2 (d) of its declaration.
This difference between the Parties with regard to interpretation lies at
the very heart of these preliminary proceedings. But "interpretation"
necessarily implies rules, elements and methods of interpretation. It is
therefore in the nature of things that the Parties should have debated these
rules, elements and methods. [p 640]
149. Generally speaking, it may be said that Spain was in favour of a
text-based interpretation of Canada's declaration, through the application
of objective rules, elements and methods of interpretation analogous mutatis
mutandis to those of the system of interpretation embodied in the 1969
Vienna Convention on the Law of Treaties. In Spain's view, this approach
would accord with the jurisprudence of the Court and of the Permanent Court
regarding the interpretation of declarations made under the optional clause
system. We would stress that Spain defends the objective approach to
interpretation in accordance with the Vienna rules and with the
jurisprudence of the Court, with all its interpretative elements, and does
not support a purely grammatical or literal interpretation. Nor does it rule
out recourse to supplementary means, provided that their role in the
interpretative process is accepted by international law.
150. In contrast, in its Counter-Memorial Canada emphasized what it called
the declarant State's "underlying intention". All the elements of the
subjectivist schools of interpretation are to be found in the rules,
elements and methods of interpretation proposed by Canada in its
Counter-Memorial. I have no hesitation in calling Canada's interpretative
system a "system of subjective interpretation". On closer inspection, it
proves indeed to be a system of extreme subjectivity:
(a) it is subjective with regard to the subject-matter of the interpretative
process, which is said to be not the declaration as deposited, but
something which the Counter-Memorial calls Canada's "underlying intention"
at the time when it deposited its declaration; that is to say, we are
dealing here with a "psychological" intention or with reasons of a
"political" nature (there is even a reference to a "free political choice"),
as formulated by Canada in the present proceedings (rather than in its
declaration at the time of deposit) and which are apparently to be sought by
looking beyond the declaration and the fact of its deposit;
(b) it is subjective with regard to the purpose of the interpretative
process in which the Court must engage, which it claims is not to give full
effect to the consent expressed by Canada in its declaration, but to give
full effect to an intention not manifested by Canada, namely the so-called
"underlying intention" referred to above;
(c) it is subjective with regard to the general method to be followed in
order to interpret the consent given by Canada, which is said to consist in
seeking an interpretation according not with the "natural and reasonable way
of reading the text", but with a "natural and reasonable" way of
interpreting the "underlying intention" relied on by Canada in these
proceedings;
(d) it is subjective with regard to the definition of the instrument which
the Court must interpret, which is alleged not to be Canada's declaration
in its entirety, but rather the reservation in paragraph 2 (d) taken in
isolation, with the result that the declaration can be interpreted in a
restrictive manner though we are not told why [p 641]whereas the
reservation can be interpreted more widely or more liberally; and, lastly,
(e) it is subjective with regard to the interpretative elements which it is
claimed should be used in the interpretative process, in that it gives at
least equal interpretative value to the declaration and to "the surrounding
circumstances" (various ministerial statements made during parliamentary
debates on Bill C-29), that is to say without drawing the requisite
distinction between the interpretative elements embodied in the general
rules of interpretation (good faith, context, object and purpose,
international law, etc.) and supplementary means (travaux prιparatoires;
circumstances).
151. In my opinion, this is all totally inconsistent with the Court's
previous jurisprudence on the interpretation of declarations under the
optional clause system, and with the rules of international law regarding
the interpretation of written instruments embodying international
obligations, which distinguish between, on the one hand, the text and other
interpretative elements under the general rules of interpretation and, on
the other, supplementary means. This is particularly true where unilateral
declarations, such as those under Article 36, paragraph 2, of the Statute,
are made in the context of a convention or treaty or in application of
provisions thereof and deposited, registered and subsequently published in
official international yearbooks and reports. I fail to see how the three
case, referred to by Canada as "leading cases" (Phosphates in Morocco, 1938,
P.C.I.J., Series AIB, No. 74, p. 10; Anglo-Iranian Oil Co., Preliminary
Objection, I.C.J. Reports 1952, p. 93; Aegean Sea Continental Shelf, I.C.J.
Reports 1978, p. 3) can support a subjective approach to interpretation of
the kind advocated in Canada's Counter-Memorial.
152. During the oral phase, Canada did not give up its attempts to persuade
the Court to interpret the reservation in paragraph 2 (d) of the declaration
by introducing into the interpretative process elements, criteria and
methods of interpretation proper to subjective interpretation; it constantly
referred to an underlying intention, of which there was no express mention
in the declaration or in Canadian documents or instruments relating thereto
prior to or at the time of deposit. Nor was there any such mention after
deposit, notwithstanding the provisions of paragraph 3 of the 1994
declaration concerning amendments to the current declaration. However,
during the oral phase, Canada presented general submissions on the matter
which would appear to accept that the start-ing-point for the interpretative
process is the declaration as deposited. It may therefore be concluded that,
by the end of the oral arguments, the approach to interpretation advocated
by Canada was an ambivalent one. It swung back and forth between the
purported underlying intention and the declaration and text thereof, but its
preference was always for the underlying intention.
*[p 642]
153. However, the Respondent's reliance on its underlying intention, whether
in the form taken in the Counter-Memorial or in the watered down version put
forward in oral argument, had certain adverse consequences for it, on which
the Judgment ought not to have remained silent. I refer to the indirect, but
nonetheless clear, admission that this implies, namely that the declaration
of 10 May 1994, as formulated and deposited, might not suffice after all to
support Canada's submission of lack of jurisdiction. Otherwise, Canada would
certainly have urged the Court to interpret its declaration on the basis of
the premises, rules, elements and methods of objective interpretation. It
cannot reasonably be supposed that Canada, its counsel and lawyers would not
be aware of these rules, elements and methods of interpretation. Canada was
therefore far from certain about the manifest lack of jurisdiction which it
asserted to the Court and to Spain in its first letter of 21 April 1995.
This is an important fact to note. Yet the majority of the Court did not
draw any conclusions from it when it came to interpret the Canadian
reservation. On the con-trary, the Judgment itself goes even further in the
direction mapped out by the Respondent with regard to the application to the
Canadian declaration of a subjective system of interpretation.
154. In fact, the Judgment succeeds in performing the amazing feat of
adopting a system for the interpretation of the Canadian declaration which
is even more subjective than that advocated by the Respondent in the written
phase! However, this was not easy to do. Thus, paragraph 46 of the Judgment
tells us that the Court "observes that the provisions of that Convention may
only apply analogously to the extent compatible with the sui generis
character of the unilateral acceptance of the Court's jurisdiction". Here we
are back to the extreme subjectivist and minority schools of interpretation
which were to be found prior to the codification of treaty law in 1969. This
is what the Judgment asserts, after the Court's jurisprudence since 1991 has
stated on several occasions that the relevant provisions of the Vienna
Convention are declaratory of general international law.
155. When the Judgment invokes the sui generis character of declarations (a
unilateral instrument drawn up by its author with a view to participating
in a system with an agreed statutory basis), it does so not with reference
to particular aspects of the application of one or more interpretative
elements accepted by international law. What is sui generis for the Judgment
is the "unilateral acceptance of the jurisdiction of the Court"! It is
effectively the entire optional clause system that is deemed sui generis by
the Judgment. I have no difficulty in affirming that this Judgment is in
truth hostile to this form of acceptance by States of the Court's
jurisdiction.
156. All now becomes clear, including the fundamental question of what the
Judgment considers to be the subject-matter of the interpretation. In
essence, for the Judgment, this is no longer the declaration drawn up by
Canada and deposited with the Secretary-General of the United [p 643]
Nations, as one might have thought, but Canada's "unilateral acceptance of
the jurisdiction of the Court", that is to say the considerations, motives
or reasons political or other which led Canada to deposit its
declaration of 10 May 1994. The declaration as such is ignored or plays only
a minor supporting role in the Judgment as far as the interpretation of
Canada's legally pertinent consent to jurisdiction is concerned.
157. For the Judgment, right from the very outset of the interpretative
process, it is the political or internal psychological reasons which led
Canada to deposit the 1994 declaration that comprise the true subject-matter
of the interpretation. It is no longer a matter of interpreting the
declaration qua unilateral international instrument, or Canada's consent as
embodied in the deposited declaration and ascertained by interpretation,
but in truth of interpreting the aims of the Canadian Government at the time
when it made its declaration. This is the point we have reached in the
interpretation of declarations under the optional clause some eighty years
after the adoption of the first Statute. It would be hard to strike a more
devastating blow at legal security, and at the operation of the optional
clause system.
158. The Judgment thus accepts that what the Court must interpret is the
"underlying intention" of which Canada spoke, but which the Court defines
even more vaguely and subjectively than did Canada in its Counter-Memorial
and oral argument. Once the Judgment takes this as the subject-matter of its
interpretation, and given that the Court evidently has the requisite
jurisdiction to interpret the Canadian declaration, then anything is
possible, for the interpretative process is no longer subject to the
constraints imposed by international law on the interpretation of
international instruments. Thus what we are faced with here is a free
interpretation of Canada's purported "underlying intention".
159. I cannot accept such an approach to the interpretation of declarations
under the optional clause system. Even if the Court is the interpreter, the
interpretation of declarations must be carried out on the basis of their
text, the declarant State's intention being ascertained by the application
of the normative rules of interpretation, which reflect the current state
of international law and have, moreover, been formulated by States after
taking due account of the Court's jurisprudence on the subject. If the
approach to the interpretation of declarations adopted in this Judgment were
to become confirmed in the future, then, in order to know what where they
stood, declarant States would in every case have to enquire into the
political or other aims or reasons which had led each of them to accept the
Court's jurisdiction through the deposit of a declaration.
160. The technique used by the Judgment in support of the method of
interpretation which it applies consists in bringing the principle of
consent to jurisdiction into the interpretative process, as if it were a
principle which was also an element in the interpretation of declarations.
In other [p 644] words, by creating a vicious circle: that which has to be
proved by interpretation (the meaning and scope of the declarant State's
consent) becomes an integral part of the demonstration, that is to say of
the interpretative process to be carried out by the interpreter. This is in
effect to confuse two elements which are, however, quite distinct, namely,
on the one hand, the principle of consent to jurisdiction and, on the other,
the interpretation of the instrument in which that consent is manifested.
This trend was already perceptible in some opinions of judges (especially
from about 1994 onwards) on the interpretation of the compromissory clauses
in certain treaties. The majority in the present case now extend this
solution to the interpretation of Canada's declaration of 10 May 1994, even
though the declarations here, both of the Respondent and of the Applicant,
are declarations of acceptance of the compulsory jurisdiction of the Court,
which may be characterized, notwithstanding the reservations they contain,
as wide or general.
161. It is in the approach to interpretation applied by the Judgment to
Canada's declaration and in its redefinition of the subject of the dispute
submitted by Spain that the fundamental reasons for this dissenting opinion
are to be found.
6. The respective functions of the parties and the Court in preliminary
proceedings on jurisdiction
162. I agree with the general criteria adduced by the Judgment in this
regard in its paragraphs 36 to 38, although their application in this case
leaves something to be desired. On the other hand, even if the role of the
parties is to "persuade" the Court to adopt their respective points of view
and the Court's role is to decide whether it has jurisdiction (Art. 36,
para. 6, of the Statute), the distinction between "persuasion"and "proof
remains, in truth, a highly theoretical one.
163. More importantly, it should be recalled that Canada's initial
contention of manifest lack of jurisdiction and certain passages of its
Counter-Memorial raised some doubts as to the Respondent's position with
regard to the self-judging nature of the reservation contained in para-graph
2 (d) of its declaration. However, in my view, these doubts of the
Respondent were dispelled in the oral phase. Moreover, Spain confirmed in
its submissions the position it has consistently held on the reservation
throughout these proceedings, namely:
"Canada cannot claim to subordinate the application of its reservation to
the sole criterion of its national legislation and its own appraisal without
disregarding your competence, under Article 36, paragraph 6, of the Statute,
to determine your own jurisdiction" (see paragraph 12 of the Judgment).
164. Thus, by the end of the hearings, both Parties recognized generally
that it was for the Court to determine the issue of jurisdiction. But what
role do the parties play in the determination by the Court of its [p 645]
jurisdiction when that jurisdiction is disputed, as it is in the present
case by Canada? The "persuasion" exercised by each party must be placed on
an equal footing, that is to say, irrespective of whether a given party is
the author of the declaration, or of its status as respondent or applicant
in the case. The principle of the equality of the parties requires this. A
party's own view of a reservation inserted by it in its declaration should
not, as such, possess a persuasive force any stronger or weaker than that
attributed to the reservation by the other party. In other words, the
criterion of a high standard of proof, to which Canada referred, applies
equally to both respondent and applicant.
165. I am sorry to say that, in my opinion, this is not exactly what appears
to have occurred in these preliminary proceedings. From the outset, the
Respondent's contentions were accorded consciously or unconsciously
additional, superior, "persuasive" force by comparison with that attributed
to those of the Applicant. However, the optional clause system does not and
must not involve any presumption whatsoever for or against jurisdiction,
any more than it involves a prior commitment to an extensive or restrictive
interpretation of the declarant State's intention to enter into a binding
obligation. The practical result is that, in reality, a self-judging
approach to the interpretation of reservations is indirectly endorsed by
the Judgment, even though the Respon-dent disowned it in the oral phase.
166. I am not convinced that the Judgment strictly respects the principles
of the sound administration of international justice. Jurisdiction is
assuredly a "point of law" which it is for the Court to decide. However, the
Court's jurisdiction in this regard is clearly not a discretionary one. It
must determine whether it has jurisdiction in an objective manner, "in the
light of the relevant facts" (I. C.J. Reports 1988, p. 76, para. 16) or, as
the Judgment puts it in paragraph 38, "from all the facts and taking into
account all the arguments advanced by the Parties". In the light of the
facts which were the source of the dispute and of other relevant facts, such
as the subject of the dispute submitted in the Application, I am a long way
a very long way from being able to find that all the relevant facts and
arguments were truly weighed against one another and given equal
consideration before the conclusion of lack of jurisdiction was reached.
Quite the contrary. That is why my finding as to jurisdiction is
diametrically opposed to that arrived at by the majority of the Court.
167. One final comment on the fact that, in these proceedings, the Court was
called upon to exercise its "competence de la competence" (Art. 36, para. 6,
of the Statute) in the context of preliminary proceedings (Art. 79 of the
Rules of Court) and even before the Applicant had filed its Memorial on the
merits. According to well-established jurisprudence, it is of the essence of
preliminary proceedings to determine jurisdiction or admissibility that a
judgment by the Court on the objection raised, adopted in a context like
that of the present case, cannot decide or pre-judge any issue between the
parties going to the merits. Here again, I am [p 168] by no means convinced
that the reasoning in this Judgment does not on occasion encroach further
upon issues of the merits than is accepted as reasonable at the preliminary
stage, or might not be interpreted as doing so. Be this as it may, such
readings or interpretations of the reasoning in the Judgment would
undoubtedly be ultra vires. The Judgment cannot, by definition, have such an
effect. It was necessary to point this out in this opinion in order to avoid
doubt, inasmuch as the entire merits of the dispute between the Parties
remain undecided by the present Judgment.
B. The Question of Admissibility or Opposability to Spain, in the
Circumstances of the Case, of the Reservation in Paragraph 2 (d) of the
Canadian Declaration
168. Reading the text of the Canadian declaration, including the
reservation in paragraph 2 (d), one might find its wording surprising. It
is clear that the text, irrespective of issues of "effectiveness", does not
reflect the underlying intention relied upon by the Respondent in order to
escape the Court's jurisdiction in the dispute submitted by Spain. The very
fact that Canada invokes an underlying intention is the best possible
evidence that its text is inadequate. In fact, as it stands, this text
leaves the door wide open to the Court's jurisdiction, given the subject of
the Application. The first question which then quite naturally springs to
mind is to ask oneself why Canada was not more careful in the drafting of
the 1994 text, bearing in mind the underlying intention invoked by it in
these preliminary proceedings.
On the basis of the case-file and of information in the public domain, I
have drawn certain general conclusions which I would like to expound in this
opinion, for they have a direct bearing on the question we are considering
at present.
169. According to the transcripts of the parliamentary debate on Bill C-29
amending the Canadian Coastal Fisheries Protection Act, which became law on
12 May 1994, certain members of the Canadian Government who took part in
the debate acknowledged that no one had asked any lawyer for a brief or
opinion on issues of international law. This is not the first time that
politicians have acted in this way. They pay scant heed to legal niceties
when they are determined to take rapid political action. The consequence,
alas, is that their country may one day find itself brought before an
international court.
170. It is also possible that many members of parliament, swept along by the
majority tide of political opinion which emerged in favour of this policy
during the debate in question, believed that, having embodied in a domestic
statute a new policy of expansion aimed at a geographical area of the high
seas adjacent to its exclusive economic zone, Canada was protecting itself
sufficiently in terms of international relations and of inter-[p
647]national law by a reservation to the compulsory jurisdiction of the
Court of the kind contained in paragraph 2 (d) of the 1994 declaration.
171. It is true that, at that time, the primary concern was with stateless
and flag-of-convenience vessels and that Canadian diplomats would be
explaining the situation to the members of NAFO (an international
organization where, as a result of the European Union's common fisheries
policy, the numerous votes previously held by the member States of the Union
had been replaced by a single vote, that of the Union). In addition, there
were friendly or allied nations which might be able to lend assistance or
demonstrate their understanding in the event of a crisis.
172. But this assurance wore somewhat thin when Canada decided in 1995 to go
a step further and attack Portuguese and Spanish fishing vessels on the
high seas, without having amended, replaced or withdrawn the 1994
Declaration, while knowing full well that Portugal and Spain were declarant
States under the optional clause system. Canada could have taken certain
steps in respect of the wording of that declaration, even after it had used
force against the Estai on 9 March 1995, for the Spanish Application
instituting proceedings was not filed with the Registry of the Court until
28 March 1995. The Court is not therefore faced with a "lightning"
Application like that brought by Portugal against India in the case
concerning the Right of Passage over Indian Territory.
173. In this connection, it should be recalled that, notwithstanding that
under the Canadian legal system the scope of an Act can be varied by
regulation where this is provided for in the Act, the point at issue here is
Canada's consent to the compulsory jurisdiction of the Court, that is to say
the Canadian declaration of 10 May 1994. Changes in Canadian municipal law
can have no automatic effect on the consent to jurisdiction manifested in
the declaration of 10 May 1994. In order to adapt or change that consent,
the declaration itself must be amended. Canada has not done so.
174. The opposite view would be tantamount to recognizing, as Spanish
counsel put it, that the consent expressed by the deposit of the
declaration is presumed to be one based on "variable geometry". The
optional clause system makes no provision for this whatsoever. The system
rests on good faith and the principles of mutuality and reciprocity. The
legitimate expectations raised with other declarant States by the deposit
of a declaration must be respected; hence the need for a declarant State to
amend its declaration if, in the context of its international relations, it
wishes to vary the consent thereby manifested.
175. But Canada did nothing at all about the consent it had given in 1994 to
the compulsory jurisdiction of the Court, either before or after the events
of March 1995. Possibly it believed that it was in a position of strength,
or it might have been relying on action by its diplomats to resolve the
crisis created in its relations with the European Union within NAFO, and
subsequently with Spain. Did the Canadian Government believe that, as a
coastal State, it was entitled to act as it did with regard [p 648] to
Spain, and to Spanish and Portuguese vessels, when it decided, in the first
months of 1995, to replace what the letter of 15 February 1995 from Mr. Ron
MacDonald, Chair of the House of Commons Standing Committee on Fisheries
and Oceans, calls "legal niceties" (Memorial of Spain, Annexes, Vol. I, Ann.
20) by "gunboat diplomacy", to quote the words used by the Canadian press
(ibid., Ann. 23)? Or did the Government think that Canada was adequately
protected by the reservation in paragraph 2 (d) of the 1994 declaration,
even in the new situation created by it in 1995?
176. All the indications are that this was not the case. What happened at
the beginning of 1995, as in May 1994 when the declaration was deposited,
was that the Canadian authorities were faced with a dilemma. Confronted with
this dilemma, Canada's "underlying intention" made a choice. This choice
entailed risks, but it also offered a chance of winning on all counts, for
jurisdiction over fisheries and the management and conservation of fish
stocks in the NAFO Regulatory Area had been transferred by member States to
the European Union. In these circumstances, since Canada was a long-standing
friend and ally, it might have been expected that, if there was a showdown
with Spain or Portugal, the diplomacy of the other member States of the
European Union would dissuade Spain or Portugal from submitting a dispute
with Canada to the Court. At all events, the European Union itself was not
entitled to bring the matter before the Court.
177. For the other horn of the dilemma involved far more serious risks for
Canada's true policy aims within the NAFO Regulatory Area, which were to
change the rules of the game on a permanent basis. Why? Because a fireproof
reservation in the declaration would have been an implicit admission of the
lack of any title under international law as a basis for the measures taken
with regard to foreign vessels fishing in the free waters of the said area.
This image could have had a very negative impact on the Government's
overriding political aim at that time in a country which, having exhausted
the biological resources in its exclusive economic zone, sought to proclaim
itself "world leader in oceans and maritime resource management" (Memorial
of Spain, Annexes, Vol. I, Ann. 26, p. 442).
178. In 1995, the Canadian Government's true target, its underlying
political intention, was not the conservation of Greenland halibut, or the
Estai, or the other Spanish or Portuguese vessels, but the creation of a
situation of uncertainty as to the existing law, whereby straddling stocks
were intended to serve as a spearhead in an attempt to negotiate a change in
that law in favour of coastal States, and in particular Canada, to the
detriment of the balances established in the 1982 Convention (which Canada
has not yet ratified). In other words, Canada was and is seeking
international title to extend its State jurisdiction into the NAFO Area o f
[p 649] the "high seas" adjacent to Canadian waters, an expression which is
beginning to be replaced in Canadian legislation by another, without
precise legal meaning in international law, namely the word "oceans". If
one is attempting to negotiate rights with other States, it is never wise to
begin by acknowledging to all and sundry, even implicitly, that the title
one is seeking to secure is nowhere to be found in current international
law. Canada did not wish to speak of international title, not even in its
Counter-Memorial in this case. Hence the position it adopted of feigning
ignorance with regard to the subject of the dispute submitted to the Court
by Spain.
179. When a title or, at the very least, general tolerance from other States
is being sought, what diplomacy does is to fudge the issue. This explains
why the reservation in paragraph 2 (d) of the 1994 declaration (and Canadian
legislation) remains silent on the matter of the international title
underpinning the measures adopted, or to be adopted, by Canada with regard
to foreign flag vessels fishing in the NAFO Regulatory Area (other than
stateless or flag-of-convenience vessels), despite the example set by the
reservation in subparagraph (d) of the 1970 Canadian declaration (see
paragraph 290 below).
180. The statement made by Mr. Tobin, Canadian Minister of Fisheries and
Oceans, on 4 August 1996 to the Final Session of the United Nations
Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks
(Memorial of Spain, Annexes, Vol. I, Ann. 25) clearly reflects what I have
just said. We find, inter alia., the following:
"To the people of Canada, especially in the Atlantic provinces and most
especially in my own Newfoundland, let me express my confidence that this
new convention can end foreign overfishing permanently. And, until the new
convention is fully and properly implemented, the Government of Canada will
retain Bill C-29[, and if necessary invoke it again in support of
measures].FN*"FN3 (Emphasis added.)
------------------------------------------------------------------------------------------------------------
FN* Note by the Registry: these words do not appear [in the English text
reproduced in Annex 25.]
FN3 In the English text of Mr Tobin's statement, reproduced in the Annexes
to the Memorial, the word "foreign" before "overfishing" appears to have
been crossed out, but it is perfectly legible. These are the sort of
problems an interpreter faces when the sub-conscious the purported
"underlying intentions" is invoked.
------------------------------------------------------------------------------------------------------------
*
181. The fact that the search for an international title enabling the
Canadian Government to take action in the fisheries of the NAFO Regulatory
Area was and is central to its concerns in the area is also [p 650]
demonstrated by Canada's right, subject to its acceptance of the relevant
conditions as laid down in the 1982 Convention on the Law of the Sea, to
extend its continental shelf beyond the 200-mile limit, given the location
of the outer edge of the shelf s continental margin (Articles 76 et seq. of
the Convention). In an article published on 22 December 1995 in the Toronto
Globe and Mail (p. Al), entitled "Canada Could Gain Area the Size of the
Prairies. Scientists Preparing Conclusive Claim to Vast Tract", we find, for
example, after a reference to Article 76 of the 1982 Convention, the
following:
"This provision could significantly increase the international recognition
of claims to potential assets in offshore oil and gas, seabed minerals and
some fisheries, says the 34 pages report, obtained by The Canadian Press."
(Emphasis added.)
The article refers to the dispute with Spain and is also accompanied by the
sketch map reproduced on the following page.
182. Once again we find that Canada's interests in the NAFO Regulatory Area
do not merely concern the conservation of straddling stocks. Canada has
other important objectives in the area. What will happen if the Canadian
continental shelf is extended to the superjacent water column containing the
fishing banks of the Nose and Tail of the Grand Banks and those of the
Flemish Cap, where at present, as far as I know, there are not even any
straddling stocks? In the circumstances, the temptation to create
effectivites in that water column cannot be ignored.
183. The present Judgment displays no interest at all in the international
title which Canada seeks to forge for itself in the NAFO Regulatory Area.
This is probably the reason why the Judgment preferred to redefine the
subject of the dispute submitted in Spain's Application. But Canada's
conduct also poses a problem of good faith (abuse of rights) which the
Judgment should have considered, given its assertion that the establishment
of jurisdiction is a question of law which the Court must determine in the
light of all the facts. Are there any facts more pertinent than those which
possibly mask some abuse of a right by a declarant State?
*
184. In this respect, we must first look at all the ambiguities in the
amending Act of 1994 and the relationship between it and the reservation in
paragraph 2 (d) of the Canadian declaration of 10 May 1994. What is the
scope of that amending Act, bearing in mind Canada's assertion that it
wished to protect the integrity of this legislation by means of the res- [p
651]
Sketch-map drawn from the map
published by Geological Survey of Canada and appearing in The Globe and Mail
on 22 December 1995
[p 652] ervation in question? The Canadian argument about "the integrity of
the legislation" has been invoked ad nauseam during the present incidental
proceedings, yet neither Canada nor the Judgment took the trouble to examine
the issue. Let us try and do that now, for convenience's sake with the help
of Professor Douglas Day of Dalhousie University, Halifax. Speaking of the
amendments of May 1994 to the Coastal Fisheries Protection Act, he first
points out:
"To justify its actions internationally, these amendments declare that one
of the world's major renewable food resources is threatened with extinction
by continued exploitation, and that Canada was assuming the power to
prohibit certain classes of foreign vessels from exploiting prescribed
straddling stocks in NAFO's Regulatory Area in order to ensure that the
agreed conservation and management measures of Canada and NAFO are not
undermined. In defining NAFO as the institutional framework for its action,
the Act focused on illegal fishing by non-members of NAFO and showed that
Canada is prepared to extend its support to that organisation in terms not
just of surveillance and monitoring, but also effective enforcement.
Canadian patrols by Aurora aircraft, fisheries and naval vessels, form the
backbone of NAFO's surveillance and monitoring efforts, but the
organisation still lacked an effective international enforcement effort to
support its stock management efforts. Canada could now advocate that it was
showing NAFO how it could cure its Achilles' heel by enlisting the support
of the coastal state's full enforcement capabilities. Canada's most vocal
opponent was, not unexpectedly, the EU and at NAFO's September 1994 meeting
it pleaded that Canada should have waited for a consensus of NAFO members
before taking action.
Canada also sought to minimise the amount of opposition to its move through
both its timing and the initial definition of targeted vessels . . ."
("Tending the Achilles' Heel of NAFO. Canada Acts to Protect the Nose and
Tail of the Grand Banks", Marine Policy, 1995, Vol. 19, No. 4, p. 264;
emphasis added.)
Professor Day continues:
"The regulations can be amended by Governor in Council at any time, so that
the Act provides flexibility in the face of new threats to different stocks
in the same areas and threats by vessels with other registrations than those
specified in May 1994. Although ostensibly [p 653] designed to target
non-member fishing in the Regulatory Area, the latent potential of the
Canada's amended Act could be invoked to eliminate more of Canada's concerns
about NAFO. The Act embodied the power to make other members conform with
majority thinking within NAFO. NAFO's history has been marked by conflict
between Canada and the EEC/EU on management measures for straddling stocks.
The EEC/EU (and before 1986, Spain and Portugal also) has often occupied a
minority position on TAC and quota decisions and invoked the objection
procedure to set its own quotas, thus 'legally' allowing it to overfish the
straddling (and high seas) stocks. Although the Act's initial target was
control of illegal fishing by non-members (especially expatriate Spanish and
Portuguese vessels), Canada could quickly amend the Regulations to allow
the arrest of any EU-registered vessel contravening approved conservation
and management measures on the Nose and Tail and, in the case of turbot, in
Division 3M. The latent potential of the amended Coastal Fisheries
Protection Act included the ability to nullify use of the objection
procedure in regard to NAFO decisions on straddling stocks . . ." (D. Day,
p. 265; emphasis added.)
*
185. We therefore see clearly what the "manifest initial target" was of Bill
C-29, which became law in May 1994, that is to say, at the time when Canada
invokes it as "circumstances surrounding the deposit of the declaration" of
10 May 1994. The text of the reservation in subparagraph (d), as formulated
in the declaration, can indeed protect the integrity of the 1994 Canadian
legislation, since in principle there is no glaring contradiction between
that legislation and the powers which Canada is entitled, by international
law, to exercise in an area of the high seas in regard to the classes of
vessels which the legislation then contemplated. The matter appears in a
different light, however, when the reservation is invoked in order to
protect, not the integrity of the legislation as amended on 12 May 1994, but
the extension, by the Regulations of 3 March 1995, of its application to
vessels having a proper nationality and flag in this case, Spanish and
Portuguese. As far as these fresh targets are concerned, the very text of
the reservation, given the terms in which it is formulated, becomes
self-contradictory in international law.
186. If that were all, the only problem would be one of interpretation. [p
654]
What has to be borne in mind, however, is that in the present preliminary
incidental proceedings Canada invokes the self-contradiction embodied in the
wording of its declaration of 10 May 1994 in an attempt to convince the
Court that the integrity of the legislation which the declaration was
intended to protect applies also to the extension of that legislation's
scope effected by the Regulations of 3 March 1995. If that was Canada's
intention in May 1994, it should have been expressed far more clearly in the
declaration itself which is an instrument of international law or at the
very least expressed in plain terms in the statement which the Min-ister of
Foreign Affairs, Mr. Ouellet, made in the Senate on 12 May 1994 when Bill
C-29 was being discussed. But Canada did nothing of the sort. So what then
becomes of its duty of good faith under the optional clause system vis-a-vis
other declarant States, including Spain?
187. This question indeed arises because neither in the text of the
declaration, nor in the statement by Minister Ouellet, nor indeed through
diplomatic channels, did Canada give Spain due notice of the intention which
it now ascribes to its declaration of 10 May 1994 in regard to Spanish
vessels fishing in March/April 1995 in the NAFO Regulatory Area.
Equivocation or false pretences have no part to play in the optional clause
system, which is based on the good faith of the declarant in the performance
of the obligations which it undertakes. Hence an issue of abuse of rights
arises, and the Judgment ignores it. The new targets which Professor Day
spoke of, if they existed, remained carefully concealed or kept well in the
background in May 1994.
188. In the debate on Bill C-29, Canada's Ministers failed to make clear, to
the extent required by the "principles" of good faith inherent in
international law and the optional clause system, that the Canadian
declaration accepting the compulsory jurisdiction of the Court also covered
the possibility of the amended Act being applied to vessels of NAFO member
States in general, and to Spanish or Portuguese vessels in particular. They
even went so far as to reassure the members of the Canadian Parliament by
telling them that Spain and Portugal were cooperating fully with NAFO.
Ambiguities about the possibility of the amended Act being applied to
vessels other than stateless or flag-of-con-venience vessels in no way
detract from what I have just said. In depos-iting its declaration Canada
did not specify that the amended Act might apply to Spanish vessels, nor
that the integrity of the amended legislation covered by its declaration of
10 May 1994 also embraced measures which might be taken and enforced against
Spanish vessels. All else is simply a posteriori comment, of no legal
relevance under international law in regard to the question I am now
examining.
189. Nevertheless, in March 1995 Canada took action by attacking Spanish
fishing vessels in the NAFO Regulatory Area. It is of course a
well-established principle of international law, and one acknowledged in the
Court's case-law, that bad faith is not to be presumed. Accordingly, until
this time a declarant State such as Spain was bound by that prin-[p 655]
ciple in its relations as declarant State with Canada. In this context, it
was not for Spain to presume violations by Canada of rights over the high
seas, still less an abuse of rights, under cover of a reservation in the
Canadian declaration whose wording was far from clear in this regard. The
presumption against bad faith or abuse of rights is fully recognized in
international jurisprudence, for example by the Permanent Court in its
Judgment in 1932 in the Free Zones case in the following terms:
"A reservation must be made as regards the case of abuses of a right, since
it is certain that France must not evade the obligation to maintain the
zones by erecting a customs barrier under the guise of a control cordon. But
an abuse cannot be presumed by the Court." (Free Zones of Upper Savoy and
the District of Gex, 1932, P. C.I. J., Series AIB, No. 46, p. 167; emphasis
added.)
190. Before March 1995 it did not lie with Spain, as a declarant State, to
presume that there had been violations of international law or an abuse of
rights by Canada in regard to its declaration of 10 May 1994. This must have
legal consequences for the admissibility or the opposabil-ity to Spain of
the Canadian reservation in question in the present incidental proceedings,
irrespective of its scope.
Moreover, Spain was all the less in a position to attribute such intentions
to Canada, in that: (1) the Canadian declaration of 1994 contained an
objective reservation of national jurisdiction (the reservation in
paragraph 2(c) which, as such, refers to international law for purposes of
defining questions which fall exclusively within the jurisdiction of
Canada); and (2) the rule of the exclusive jurisdiction of the flag State
afforded protection to its vessels on the high seas a customary rule and
binding accordingly on both Canada and Spain.
191. It is true that, in the oral phase of the present incidental
proceedings, counsel for Canada sought rather to persuade the Court that
the measures taken by Canada against Spanish vessels did not constitute
delictual conduct in international law (hence the efforts to lay emphasis on
State practice in the matter). In its Counter-Memorial, however, when faced
with the Applicant's arguments that the measures in question and their
enforcement were internationally wrongful acts of Canada and not
conservation and management measures, or the enforcement of such measures,
Canada replied that the scope of its reservation covered everything, that
is to say measures both legal and illegal under international law. That
assertion does not, in my opinion, sit well with the principles of good
faith and mutual trust on which the optional clause system is based, because
the text of the reservation does not indicate that the measures in question
might be illegal. While the text remains silent on that point, it is not for
Spain to presume either bad faith or an abuse of rights on the part of
Canada.
192. In the light of the foregoing, I believe that the reservation in
para-[p 656]graph 2 (d) of the Canadian declaration, regardless of any
issue of validity, is neither admissible nor opposable to Spain in the
present preliminary incidental proceedings. If need be, the Court should
reconsider it at the merits stage in the light of all the factual and legal
elements which the case involves. The Judgment omits to pose a question
which, by its very nature and importance, the Court should have examined
proprio motu.
The Judgment declines to consider whether there has been an abuse of rights
within the framework of the optional clause system. Here also, I cannot
agree with its approach. The issue here is not one of derogation from the
principle of consent to jurisdiction, or of a restriction on the freedom to
insert reservations in declarations; it is about the conduct of declarant
States in the exercise of those freedoms. In short, about good faith and
mutual trust in relations between declarant States within the framework of
the optional clause system.
193. It may be recalled in this connection that in 1945, in a letter
reproduced in an article by Shabtai Rosenne entitled "Judge John E. Read and
the International Court of Justice", Judge Read, the future Canadian Member
of the Court, who took part in the drafting of the present Statute, made the
following observation in regard to the power of States to include
reservations in their declarations: "The experience of the past has shown
that there is no likelihood of a general power of reservation being abused"
(The Canadian Yearbook of International Law, Vol. XVII, 1979, p. 19).
Regrettably, the present preliminary incidental proceedings show this to be
possible; and what is far more alarming, looking to the future, is that, at
least in the present Judgment, the Court considers this conduct acceptable
on the part of a declarant State and its effects opposable to other
declarant States.
C. The Interpretation of the Canadian Declaration of 10 May 1994, Including
the Reservation in Paragraph 2 (d) of the Declaration
1. The Canadian declaration as the subject-matter of the interpretation
which the Court must undertake
194. Canada invokes the reservation in paragraph 2 (d) of its declaration
of 10 May 1994 in order to challenge the Court's jurisdiction in the present
case. The Canadian declaration is, moreover, the only one which gives rise
to a difference of interpretation between the Parties as to the Court's
jurisdiction in this case, and it is this disagreement which has to be
resolved in the present preliminary incidental proceedings.
195. Accordingly, the first question which arises in this respect is, what
is the subject-matter of the interpretative process which the Court must
undertake? My initial and principal answer to this question was given
earlier, when I expressed my conviction that the subject of the
interpretation is the Canadian declaration itself and not, as the Judgment
main-[p 657]tains, the political or other reasons which led Canada to
accept the compulsory jurisdiction of the Court unilaterally on 10 May 1994
(that is to say, Canada's subjective intention to become a declarant State).
This conclusion must now be supplemented by a further conclusion, namely
that the subject-matter of the interpretation to be undertaken by the Court
is the Canadian declaration as a whole, for, as the Judgment points out in
paragraph 44:
"All elements in a declaration under Article 36, paragraph 2, of the Statute
which, read together, comprise the acceptance by the declarant State of the
Court's jurisdiction, are to be interpreted as a unity, applying the same
legal principles of interpretation throughout." (Emphasis added.)
196. The two Parties had, moreover, themselves acknowledged the unity of the
Canadian declaration, that is to say the fact that reservations also
constitute the declaration or form an integral part of it, but they did not
infer the same practical consequences from this for purposes of the
interpretation of the reservation in subparagraph (d). The Judgment, for its
part, having noted the unity of the Canadian declaration, immediately
distances itself from that conclusion. In effect, in so far as the Judgment
states that the Canadian declaration constitutes a whole (a unity), this is
only in order the better to emphasize that there is no reason to interpret
restrictively reservations contained in a declaration of acceptance of the
compulsory jurisdiction of the Court.
197. The Judgment thenceforth confines its attention to the reservation in
subparagraph (d), isolating it from the rest of the declaration. All we are
left with, ultimately, is the reservation, or rather the subjective
intention or political motives which Canada now claims to have had when it
included the reservation in its declaration of 10 May 1994. In the
interpretative reasoning of the Judgment, the whole (the declaration) is
replaced by one of its parts (the reservation in subparagraph (d)) or, going
even further, the intention which the Judgment attributes to Canada when it
made the declaration of 10 May 1994.1 cannot accept either this reductionist
approach of the Judgment or the contradictions which it involves. For
example, when the Judgment talks of the "context" of the reservation, far
from invoking the context as an element of interpretation recognized in
international law, it refers instead to circumstances, that is to say, to
supplementary means of interpretation.
A declaration made under the optional clause system effectively forms a
whole. It constitutes a unity. The subject-matter of the interpretation is
precisely that unity. It is from that unity that we have to ascertain the
consent to jurisdiction given by a declarant State vis-α-vis other declarant
States. Reservations to a declaration under the optional clause system are
part and parcel of the declaration. It is the declaration as a whole which
expresses the consent of the declarant State to the compulsory jurisdiction
of the Court and it is the declaration as a whole which is at issue [p 658]
when jurisdiction is challenged, even if part of a declaration or a single
condition or reservation, as in the present case, is invoked to justify that
State's objection to the Court's jurisdiction.
The jurisdictional title is the declaration as a whole. Reservations or
conditions cannot stand on their own as titles excluding jurisdiction. That
is why the principle of integrality plays an important role in the
interpretation of declarations made under the optional clause system, which
are unilateral instruments, but formal and solemn ones. Spain's Application
refers to the Canadian declaration as a whole. Quite correctly.
198. I have already pointed out that the consent expressed in declarations
is a consent given in writing prior to the dispute. Accordingly, under the
optional clause system, it makes little sense to bring negative or positive
presumptions of consent into the debate. The consent of the declarant State,
within the limits it has set, is manifest. It is expressed in the
declaration. All, therefore, that needs to be done is to ascertain its
precise meaning and scope by interpreting the declaration in accordance with
the rules of international law applicable to the interpretation of
international instruments, rules to which the Court's jurisprudence has made
a notable contribution over the years.
199. Canada's declaration was deposited in accordance with Article 36,
paragraph 2, of the Statute. What does this mean? That Canada took this step
for a very precise purpose, namely to accept the compulsory jurisdiction of
the Court as expressed in the declaration. That being so, the point of
departure of the legal reasoning cannot be that Canada has given its consent
to nothing at all, unless there is evidence to the contrary! It must have
given its consent to something. It is therefore perfectly legitimate for
any interpreter acting in good faith to take as the point of departure of
the interpretative process the fact that, by depositing its declaration,
Canada gave a consent to the compulsory jurisdiction of the Court of the
kind I have mentioned. This means that, under the optional clause system,
the requirement of "strict proof of consent", so frequently emphasized by
Canada, is less than absolute. Consequently, assertions such as "[y]ou
cannot start from a presumption of jurisdiction based on the fact that a
declaration has been made" carry no weight with me. Certainly, for the
purposes of interpretation, "you can start from the fact that a declaration
has been made".
200. What is more, in the present case the Canadian declaration itself
states that Canada "accepts as compulsory ipso facto and without special
convention . . . the jurisdiction of the International Court of Justice . .
. over all disputes .. . other than" those enumerated in paragraphs 2 (a) to
(d). Is an interpreter, in his interpretative reasoning, not to take into
consideration that part of the text of the declaration which immediately
precedes the subparagraphs containing the reservations? Of course he may. He
is indeed obliged to begin his interpretation there. To say that this is
tantamount to making a "general rule" of a presumption in favour of the
jurisdiction of the Court is absurd. [p 659]
201. On the other hand, I agree with the statement in the Judgment that
reservations contained in declarations do not derogate from an earlier
provision or text, as is the case with reservations to treaties. All the
same, as far as interpretation is concerned, we should not exaggerate the
effects of the distinction between these two kinds of reservations at the
risk of leading ourselves into contradictions. Yet Canada has based some of
its arguments precisely on the Court's Judgment concerning the
interpretation of the reservation by Greece to the General Act of 1928
(Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 3).
202. However, irrespective of any distinction between kinds of
reservations, one thing is certain: in neither case does the subject-matter
of the interpretation involve a subjective or political intention underlying
the reservation. We interpret the instrument as a whole with its
reservations, in accordance with the rules of interpretation of
international law. The latter has no special rules for the interpretation of
reservations. There can be no question of an objective interpretation of the
declaration and a subjective interpretation of its reservations. Thus
reservations must be interpreted according to the same rules and by the same
methods as the rest of the declaration, bearing in mind the principle of
integrality which I have already mentioned. The Judgment, however, seems to
proceed on the basis of a purported "reservations regime" when interpreting
the Canadian reservation, a regime, moreover, which it would appear to
distinguish from the "declarations regime", despite assertions of principle
to the contrary.
2. The question of the restrictive or extensive interpretation of the
reservation in paragraph 2 (d) of the declaration
203. According to Canada, the Spanish interpretations of paragraph 2 (d) of
the declaration deprive the reservation of any practical effect, in short of
its effectiveness (effet utile). It contends that Spain seeks to interpret
the reservation in the most limited or restrictive manner possible,
disregarding the fact that all the component elements of a declaration have
precisely the same value; that there is a close and necessary link between a
jurisdictional clause and its reservations; that the acceptance of
jurisdiction relates to the entire declaration by the State, including the
reservations; and that there is no rule of general acceptance of
jurisdiction to which reservations are the exception, making acceptance of
jurisdiction the rule and the reservation the exception. Yet in its
Counter-Memorial (p. 32, paras. 70-71) and its oral pleadings, Canada itself
acknowledged that "[f]he effectiveness doctrine does not provide a licence
to read anything into the text".
204. Spain argues that the Respondent wishes to have the declaration
interpreted restrictively but the reservation permissively, despite
rhetorical statements as to their unity, thereby ignoring the fact that the
point of departure is the effet utile of the declaration and confusing the
effet utile of the reservation with its acceptance, by virtue purely of its
having been [p 660] invoked by the Respondent. Spain denies having argued
that reservations must a priori be interpreted restrictively. Spain's
approach is that a restrictive or extensive interpretation can only result
from the application to the declaration, including its reservations, of
those rules of interpretation applicable under international law to
international instruments; in the present case, the application of those
rules to the Canadian declaration. However, the declaration, including its
reservation in subparagraph (d), was drafted by Canada and not by Spain.
Thus Spain gave examples of the possible effets utiles of that declaration
and emphasized in this connection the role of good faith and the contra
proferentem rule.
205. On this point too the Judgment espouses the arguments put forward by
Canada. In effect, for the Judgment the aim attributed by Canada to the
reservation takes precedence over all else for purposes of the
interpretation of its declaration. The effet utile of the declaration thus
becomes the purpose of the reservation in subparagraph (d), including,
moreover, the political reasons which Canada purportedly had at the time
when it deposited its declaration of 10 May 1994. At this point it should be
recalled that Canada referred in this context to the political theory of
"vital interests". The Judgment makes no mention of this. However, on a
close reading, the Judgment does indeed appear to have taken it into
account. We would point out, in passing, that "effet utile" and "vital
interests" are not the same thing in the context of the interpretation of
an international instrument. Be that as it may, it is clear that the
Judgment applies an extensive interpretation to the reservation in
subparagraph (d) to the detriment of the effet utile of Canada's
declaration (including the reservation), in that it starts from a certain a
priori assumption which, while not totally apparent in the reasoning, is
nonetheless there. For the Judgment, the scope to be given to the
reservation is that which Canada claims in these incidental proceedings to
have intended to give to it at the time when it made the declaration. Thus,
in effect, the Judgment endorses the application, through the intermediary
of the Court, of the doctrine known as the self-judging interpretation of
reservations in declarations.
206. I cannot accept the Judgment on this point either. As I have already
pointed out in this opinion, the interpretation of declarations under the
optional clause system must not be undertaken with mental reservations or
subject to a priori restrictive or extensive assumptions. And this applies,
of course, to the entirety of the declaration concerned. There can be no
question of excluding restrictive interpretations only for reservations
while accepting, implicitly or explicitly, a restrictive interpretation of
other elements of the declaration, for example, in the present case, the
initial clause of paragraph 2 of Canada's declaration and the reservation
contained in subparagraph (c) of that paragraph. This would be contrary to
the principle, recognized moreover by the Judgment, that one must always
apply the same principles of interpretation to all of the component elements
of a declaration. Moreover, the exclusion of a priori [p 661] assumptions of
a restrictive or extensive nature at the outset of the interpretative
process in no sense means that the result of a given interpretation cannot
be afterwards characterized as restrictive or extensive in terms of specific
parameters. There can be no question of the interpreter seeking at any price
to give an extensive scope (or vice versa) to the result of his
interpretation of a part of a declaration, if the result of the application
to the particular case in question of the principles of interpretation of
international law do not justify this. It is not the duty of an interpreter
to alter the intention embodied in the declaration under interpretation.
207. Thus the question of the interpretation of the reservation contained
in paragraph 2 (d) of the Canadian declaration must not be approached in
abstract or theoretical terms as the Judgment does, but, on the contrary, in
a quite concrete way, that is to say by examining closely the result of the
application of the relevant interpretative elements in this case. In this
connection I note that it is the actual wording of paragraph 2 of the
declaration which makes the reservation in subparagraph (d) an exception to
the compulsory jurisdiction otherwise accepted by Canada by the deposit of
its declaration. Thus, in paragraph 2 Canada accepts the compulsory
jurisdiction of the Court "over all disputes other than" those set out
thereinafter, including those mentioned in reservation (d).
208. It is, then, the wording of paragraph 2 of Canada's declaration which
makes the disputes in reservation (d) an exception to the compulsory
jurisdiction otherwise accepted by Canada. Since the text of the
declaration itself creates an exception, it follows that the result of the
inter-pretation of the reservation is bound to be restrictive when that
reservation is read in the context of the declaration. In any event, the
result of the interpretation of the reservation in subparagraph (d) cannot
encroach upon the scope of the compulsory jurisdiction accepted by Canada
pursuant to paragraph 2 of its declaration as a whole without betraying the
declarant's intention. Moreover, it is also necessary to give an effet utile
to the compulsory jurisdiction accepted by Canada by virtue of its
declaration, that is the declaration in its entirety. The restriction
embodied in the reservation in subparagraph (d) cannot and must not allow us
to forget or disregard the consent given by Canada to compulsory
jurisdiction under paragraph 2 of the declaration which results from the
natural and ordinary way of reading the text of the paragraph in the context
of the declaration as a whole. However, this finding is not the consequence
of any a priori assumption; it follows quite simply from the language of the
Canadian declaration.
209. It is appropriate at this stage to point out, in the context of the
reservation in subparagraph (d) and of its effet utile, that a finding that
the Court has jurisdiction in the dispute submitted by Spain's Application
would in no way deprive the reservation either of its purpose or of its true
effect. The contrary argument is a false one, contradicted moreover by
Canada's own conduct in 1994. The so-called conservation and management
measures adopted by Canada in the NAFO Regulatory Area in [p 662] respect of
Spanish (and Portuguese) fishing vessels were in force only from 3 March
1995 until the beginning of May. Well then! Does that mean that, before 3
March 1995 and after the beginning of May 1995, the reservation had no
purpose or was incapable of producing any effect? It suffices to pose the
question in simple terms in order to see that the argument developed by the
Judgment on the basis of the effectiveness of the reservation does not stand
up.
210. In order to justify its treatment of the question of the
interpretation of the reservation in subparagraph (d), the Judgment once
again invokes the different question of the principle of consent to
jurisdiction, and also ventures into the doctrinal arena, adopting a stance
in favour of a certain school of thought on the nature of reservations in
declarations of acceptance of compulsory jurisdiction of the Court. Here too
I cannot share, as a whole, the conclusions reached by the Judgment in this
respect. It all depends, in my view, on the wording chosen, in the exercise
of its sovereignty, by the declarant State when it drafted and deposited the
instrument containing its declaration.
211. In the present case, I simply note that Canada's declaration is not an
instrument whereby the declarant accepts the compulsory jurisdiction of the
Court solely for a specific category of disputes. On the contrary, it
accepts that jurisdiction for all disputes subsequent to the declaration
other than those excluded by the reservations. The presumption of
non-consent as such cannot therefore have any role to play in the
interpretative process, since the text of the declaration begins by
announcing such a consent.
212. Finally, I note also that paragraph 3 of the declaration refers to
subparagraphs (a) to (d) of its paragraph 2 as "reservations" and that the
Respondent relied in these preliminary proceedings on the decision of the
Court in the case concerning the Aegean Sea Continental Shelf, that is to
say the interpretation of a reservation in an instrument of accession to an
international agreement (the General Act of 1928). This attitude on the part
of the Respondent shows clearly that the distinction between "reservations"
to treaties and "reservations" in declarations appears not to be as clear as
the Judgment would have us believe.
3. The general scheme of Canada's declaration
213. The text of Canada's declaration poses no problem of authenticity. It
was published in the United Nations Treaty Series and in the Court Yearbook.
Canada does not dispute that the text so published is indeed the text of the
declaration forwarded to the Secretary-General of the United Nations in the
name of the Canadian Government, done at New York on 10 May 1994 and signed
by the Permanent Representative of Canada to the United Nations. Nor does
Canada dispute that its declaration of 10 May 1994 was in force at the time
when Spain filed its Application with the Registry of the Court on 28 March
1995, or that the circumstances or facts referred to in the Application are
subsequent to [p 663] the deposit of its declaration. There is thus no
problem ratione temporis as regards the application of the declaration to
the dispute submitted to the Court by Spain.
214. Canada's declaration of 10 May 1994 begins with a paragraph 1
abrogating its declaration of 1985, which had itself abrogated the
declaration of 1970. It ends with a paragraph 3 which reserves Canada's
right to add to, amend or withdraw any of the reservations which it
contains, by means of a notification addressed to the Secretary-General of
the United Nations (see paragraph 14 of the Judgment).
Between these two paragraphs is paragraph 2, which deals specifically with
the legal obligation assumed by Canada vis-α-vis other declarant States
regarding the acceptance of the compulsory jurisdiction of the Court,
together with the limitations on that obligation, for the provision in
question contains four reservations. Paragraph 2 reads as follows:
"(2) I declare that the Government of Canada accepts as compulsory ipso
facto and without special convention, on condition of reciprocity, the
jurisdiction of the International Court of Justice, in conformity with
paragraph 2 of Article 36 of the Statute of the Court, until such time as
notice may be given to terminate the acceptance, over all disputes arising
after the present declaration with regard to situations or facts subsequent
to this declaration, other than:
(a) disputes in regard to which the parties have agreed or shall agree to
have recourse to some other method of peaceful settlement;
(b) disputes with the Government of any other country which is a member of
the Commonwealth, all of which disputes shall be settled in such manner as
the parties have agreed or shall agree;
(c) disputes with regard to questions which by international law fall
exclusively within the jurisdiction of Canada; and
(d) disputes arising out of or concerning conservation and management
measures taken by Canada with respect to vessels fishing in the NAFO
Regulatory Area, as defined in the Convention on Future Multilateral
Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement
of such measures." (Emphasis added.)
It is clear from this text that the Canadian Government gave its consent to
the compulsory jurisdiction of the Court in a very broad and general manner
(as did Spain in its declaration), namely for all disputes arising after the
declaration with regard to situations or facts subsequent to that
declaration, other than the disputes excluded by subparagraphs (a), (b),
(c) and (d) of paragraph 2.[p 664]
215. The Applicant quite naturally emphasizes the broad terms of the
acceptance of the Court's compulsory jurisdiction with which paragraph 2
begins, whilst the Respondent virtually speaks only of its reservation in
subparagraph (d). It should also be noted that paragraph 2 does not define
any of the words or expressions used therein. Nor does it expressly refer
the interpreter to any text of domestic law for that or any other purpose.
216. This is in reality a declaration which has nothing in common with that
of Iran in the Anglo-Iranian Oil Co. case (Preliminary Objection, Judgment,
I.C.J. Reports 1952, p. 93). Iran's declaration was not a declaration
accepting the compulsory jurisdiction of the Court for "all dis-putes", with
the exception of those covered by four reservations like those in Canada's
declaration of 1994. On the contrary, it was a declaration which accepted
compulsory jurisdiction for a single category of disputes, namely disputes
"with regard to situations or facts relating directly or indirectly to the
application of treaties or conventions accepted by Persia and subsequent to
the ratification of this declaration". And that category of disputes was
further accompanied in the declaration by three reservations!
217. In terms of the rules and methods of interpretation of declarations
under the optional clause system, it is abundantly clear that it would not
be in the interest either of Canada or of the Judgment to attempt to analyse
in detail the 1952 Judgment in the Anglo-Iranian Oil Co. case. It is not
merely that that Judgment rejects purely grammatical or exegetical
interpretations of the text which nobody seeks to defend in this case as
is shown by its statement that the Court "must seek the interpretation which
is in harmony with a natural and reasonable way of reading the text, having
due regard to the intention of the Government of Iran at the time when it
accepted the compulsory jurisdiction of the Court" (I.C.J. Reports 1952, p.
104). This is absolutely true and correct. However, what must give pause for
thought is the fact that the Applicant, Spain, also cites this Judgment,
including the passage just quoted, in support of its submission that the
Court has jurisdiction in the present proceedings, for here the issue is not
in effect that of the natural and reasonable way of reading "the intention
of the Government of Canada" at the time when it deposited its declaration,
but in reality that of the natural and reasonable way of reading "the text
of the declaration", having due regard to the intention of the Government of
Canada at the time when it accepted the compulsory jurisdiction of the
Court.
218. Thus, in that Judgment of 1952, the Court first gives the
interpretation that it considers to be in harmony with the natural and
reasonable way of reading the text. The Judgment then goes on to examine the
intention of the Government of Iran at the time in order to rebut the
different, literal/grammatical interpretation relied on by the Applicant
(United Kingdom). The Court concluded that the declarant's intention had
found "an adequate expression in the text of the Declaration as interpreted
[p 665] above by the Court"; the Court found decisive confirmation of the
intention of the declarant Government at the time when it made its
declaration in a clause of the Iranian law approving that declaration
(during the League of Nations period there was no provision for the deposit
of declarations), holding that it had subsequently given notice of its
declaration without changing its text, namely in Iranian instruments
relating directly to the declaration under interpretation. The
interpretation of the text made by the Court in 1952 was also supported by
particular considerations drawn from the general treaty practice followed
by Iran at the time with regard to treaties concerning the former regime of
capitulations.
219. Nor, in light of the general scheme of the instrument containing the
reservations in question, do the conclusions to be drawn from the 1978
Judgment in the Aegean Sea Continental Shelf case (which was cited both by
the Respondent and by the Applicant in connection with the interpretation of
reservations) confirm the findings of the Judgment indeed far from it on
the role of international law in the interpretation of certain words and
expressions in the reservation in subparagraph (d) of the Canadian
declaration; nor do they explain the silence of the Judgment on the possible
effect on the interpretation of that reservation of the fact that the
Canadian declaration contains an objective reservation (subparagraph (c)) of
national jurisdiction, just as did the Greek instrument of accession to the
General Act of 1928. At that time the Court had, however, drawn certain well
known conclusions from this latter fact for purposes of its interpretation
of the expression "territorial status" in the Greek reservation.
220. The fact remains that the Canadian declaration of 10 May 1994, in terms
of its general scheme, is not in any sense a declaration formulated in
"restrictive terms", as certain passages of the Judgment might, indirectly,
lead one to believe. The Respondent itself recognized this at the hearings
when one of its counsel stated that the scope of the reservation in
subparagraph (d) was very limited, namely to fisheries in a defined
geographic area, and that the Canadian declaration potentially covered:
"disputes concerning territory, maritime boundaries, investment,
humanitarian law, etc. The list is practically endless, and none of this is
affected in the least by an interpretation giving full effect to the
reservation." (CR98/12, p. 23, para. 102; emphasis added.)
It may well be that the Canadian counsel in question is not particularly
familiar with the terminology of the Permanent Court in the Lotus Judgment,
where "vessels" of States are assimilated to "territory". Whether we are
talking of "territory" according to the old terminology or of "exclusive
jurisdiction of the flag State" according to that accepted today, the
present proceedings concern a conflict of jurisdiction between the Parties
over vessels on the high seas. In these circumstances its territorial or
spatial aspect is clear. [p 666]
4. The legally material intention for the interpretation of Canada's
declaration
221. As I have pointed out all through this opinion, the issue of the
legally material intention for purposes of the interpretation of Canada's
declaration of 10 May 1994 is at the heart of the interpretative dispute
which divides the Parties. This has already manifested itself in a
particularly striking manner with regard to the interpretation of
subparagraph 2 (d) of the declaration.
For the Applicant, the legally material intention for the interpretation of
the declaration is the intention of the declarant State at the date of
deposit as embodied in the declaration itself. The Respondent, for its part,
emphasizes an intention purportedly underlying the declaration or, in any
event, an intention which is not necessarily identical in all respects with
that ascertainable from the terms of the reservation in subparagraph (d)
read in the context of the declaration. In certain respects it might well be
thought that, for the Respondent, the legally material intention enjoys an
autonomy in relation to the declaration such that it could undergo change
after the deposit without any amendment of the declaration.
222. The general position of Canada on the legally material intention for
purposes of interpretation of the reservation in paragraph 2 (d) of the
declaration has been criticized over and over again by the Applicant.
Spain's counsel saw this as an attempt by the Respondent to diminish the
preponderant role which must be played in the interpretation of the
reservation by the general rule of interpretation in good faith in
accordance with the ordinary meaning of the terms in their context subject
to any special meaning attaching to them in light of the object and
purpose of the declaration. On Spain's view, in appealing to its subjective
intention, Canada seeks to impose as real or true an intention which does
not accord with the ordinary, current, natural or reasonable meaning of the
words and expressions used in the reservation in subparagraph (d) in its
context and in the context of the declaration as a whole.
223. I have already explained in detail that the Judgment goes even further
in its subjective approach than the interpretative thesis advanced by the
Respondent. The persuasive force of the Canadian argument was so strong for
the majority with regard to this issue central to the decision that, for the
Judgment, the object and purpose of the interpretative process in which the
Court must engage is not even to ascertain the purported intention
underlying the text of the reservation in subparagraph (d) invoked by
Canada, but in truth the reasons or motives which on 10 May 1994 led Canada
to accept the compulsory jurisdiction of the Court. There is thus a radical
divergence between the position taken by the Judgment and that adopted in
this dissenting opinion.
224. In my view, the legally material intention is that embodied in Canada's
declaration, including the reservation in subparagraph 2 (d), and that
intention must be ascertained by applying the rules for the inter-[p
667]pretation of international instruments laid down by international law
and, in particular, all of the interpretative elements accepted by those
rules which are applicable to the circumstances of the case, namely: the
principle of good faith; the rule that words must be given their ordinary
meaning, in their context, in the light of the object and purpose of the
declaration; the relevant rules of international law applicable in the
relations between the parties; together with all relevant circumstances as
supplementary means of interpretation.
225. As the Judgment says, "it is the declaration in existence that alone
constitutes the unity to be interpreted" (paragraph 45 of the Judgment).
However, the Judgment does not apply this rule. I too recognize that the
reservation in subparagraph 2 (d) must not be interpreted as restricting the
scope of a prior more general acceptance, for example that of Canada's
declaration of 10 October 1985. That declaration was abrogated and replaced
by a new one, that of 1994. However, what I do say is that the declaration
of 10 May 1994, which was in force at the time when Spain filed its
Application, must be interpreted by reference to its text in accordance with
international law and not by reference to such political or other reasons
that Canada may have had when it made the declaration and deposited it with
the Secretary-General of the United Nations.
226. What counts for purposes of the interpretation which we have to make is
not these reasons, or any other motives that the declarant may have had, nor
the unilateral and sovereign nature of the acts of drafting and deposit, nor
even the fact that a particular reservation has or has not been included,
but the intention manifested in solemn written form in the instrument made,
deposited, registered and published, including all of its reservations and
conditions, which is the sole legally material intention notified to other
States, including Spain.
*
227. For example, in the Phosphates in Morocco case, cited by the
Respondent, in which the titles interpreted were declarations, the Permanent
Court begins by affirming that "this jurisdiction only exists within the
limits within which it has been accepted" (Judgment, 1938, P. C.I. J.,
Series AIB, No. 74, pp. 23-24; emphasis added). I have already spoken of the
Judgments of the Court in the Anglo-Iranian Oil Co. and Aegean Sea
Continental Shelf cases. It is clear that, in interpreting declarations
under paragraph 2 of Article 36 of the Statute, the Court has not hesitated
to attach a certain importance to the intention of the declarant State. But
what "intention" is at issue? While citing the aforementioned jurisprudence,
the present Judgment comes to what I regard as an unprecedented conclusion:
"the Court has not hesitated to place a certain emphasis on the intention of
the depositing State" (paragraph 48 of the Judgment; emphasis added). This
effectively represents a change of direction in the Court's jurisprudence in
favour of [p 668] extreme subjective interpretation, a doctrine with which I
cannot associate myself, either generally or in the context of the optional
clause system.
228. Furthermore, the Judgment leaves no possible room for doubt that the
"intention of Canada" that it interprets is not the one expressed or
embodied in the declaration itself, but an intention extrinsic to the
declaration, namely the political reasons alleged to have led Canada to make
and deposit the declaration. A general response to that question is to be
found in a passage of the Judgment in the Temple of Preah Vihear
(Preliminary Objections) case, which reads:
"[the Court] must interpret Thailand's 1950 Declaration on its own merits,
and without any preconceptions of an a priori kind, in order to determine
what is its real meaning and effect if that Declaration is read as a whole
and in the light of its known purpose, which has never been in doubt"
(I.C.J. Reports 1961, p. 32).
This passage expresses perfectly the legally material intention for
purposes of interpretation of a declaration. It is not the position that
the Judgment adopts. It should also be pointed out that the question of
reservations did not arise in the Temple of Preah Vihear case. The issue
was quite simply the interpretation of Thailand's declaration as a whole.
Thus the purpose of which the Judgment speaks is that of the declaration,
not that of any reservation. On the other hand, the present Judgment, after
emphasizing the unity of the Canadian declaration, still seeks to make the
interpretation of the reservation in paragraph 2 (d) of the declaration
stand on its own. The result is a contradiction seldom seen in a Judgment of
the Court between the initial general considerations and the practical
consequences subsequently drawn therefrom in the interpretation of the
reservation.
*
229. With regard to the evidence of the legally material intention as I
understand it, that is, the intention manifested or embodied in the
declaration, it is clear that consideration must be given to all the other
interpretative elements present, including international law in so far as
it is relevant and the supplementary means of interpretation concerning the
drafting and deposit of the declaration. But I cannot lend any weight, in
the interpretation of the declaration, to an "intention of Canada" such as
the one adopted by the Judgment in order to interpret the reservation in
question.
To determine the extent of Canada's consent to compulsory jurisdiction in
the present case, it is not the task of the Court to interpret imaginary
items, but simply Canada's declaration of 10 May 1994, including the
reservations. To accept the thesis of the intention as understood by the
Judgment would be tantamount to jeopardizing the entire optional clause
system.
230. Elementary reasons of legal security and logic require that, in [p 669]
order to interpret the intention of the declarant State, we take as our
starting point the actual text of the instrument in which the obligation is
set forth, rather than seeking out ab initio, as it were, some extrinsic,
indefinable psychological intention supposedly governing the one embodied
in the instrument to be interpreted, and prevailing over that intention. Yet
this is what the Judgment does. The following passage from the Judgment
clearly confirms the subjective interpretation which is at the basis of its
conclusions concerning the interpretation of the Canadian reservation:
" What is required in the first place for a reservation to a declaration
made under Article 36, paragraph 2, of the Statute, is that it should be
interpreted in a manner compatible with the effect sought by the reserving
State" (paragraph 52 of the Judgment; emphasis added).
*
231. The Court, States in two codification conferences concerning the law of
treaties, the International Law Commission and the Institut de droit
international have rejected the so-called subjective interpretation of
international instruments, endorsing an objective system of interpreta-tion,
a system that must not be confused with purely grammatical or literal
interpretations, but which clearly takes as the starting point for
interpretation the text of the instrument, which is presumed to be the
authentic expression of the intention of its author or authors.
232. Contemporary international law also seeks, in the interests of legal
security, to ensure that this objective system of interpretation involves
not only methods, canons and maxims to be freely applied by the Court, or
criteria of purely formal logic, but also a set of rules of international
law that the interpreter is required to apply. The interpretative process
has now become a genuinely legal one by virtue of the fact that it is
governed by international law. The Judgment is a far cry from that
conception of interpretation. In my opinion, it is also inconsistent with
the jurisprudence on which it relies. It is truly a "first", with
unforeseeable consequences.
233. It is clear that in the case of declarations under the optional clause
system, the task is simply to ascertain the intention embodied in the
instrument by the declarant State, while in the case of treaties it is to
ascertain the "common intention" of the parties. But that does not alter
what I have just said. On the contrary, because we are dealing here with a
single author, the method of objective interpretation has to be
particularly strict regardless of the contra proferentem rule where
legal interpretation of unilateral declarations is concerned. [p 670]
5. Interpretation in good faith of the Canadian declaration, including the
reservation in subparagraph (d)
234. I have already had occasion to stress the importance of the principles
of good faith and mutual trust in the circumstances of the present case. But
hitherto I have considered these principles only in relation to the question
of the admissibility or opposability to Spain of the reservation contained
in paragraph 2 (d) of the Canadian declaration. It now remains for me to
consider the role of good faith as an element in the interpretation of that
declaration.
235. At the level of principles, the Parties agree that Canada's
declaration must be interpreted and applied in good faith. But on the
question of the role of good faith in the process of interpretation of the
Canadian declaration, there is no clear agreement at all between the
Parties. Here too, it is their differences with regard to the
subject-matter, rules and methods of interpretation which predominate.
236. In Canada's view, good faith in the interpretation of its declaration
would require seeking out what it calls its "true intention" (for which read
"subjective reasons") as alleged by it in these incidental proceedings. In
Spain's view, good faith would require seeking the intention of Canada as
manifested or embodied in the declaration at the time of its deposit. This
difference as to the role of good faith in the interpretation of the
Canadian declaration is also to be seen, in consequence, in the Parties'
presentation of the role of the rules or particular interpretative criteria
governed by good faith, such as effectiveness and the contra proferentem
rule. It must thus be borne in mind that when Canada or Spain speaks of the
role of good faith, of effectiveness or of the contra proferentem rule, they
are not referring to the same legal realities. For example, in the case of
effectiveness, application of which is governed both by good faith and by
the object and purpose of the declaration, it is clearly not the same thing
to seek that object and purpose in Canada's purported subjective or
political reasons as it is to seek it in the declaration deposited by the
latter on 10 May 1994.
237. My position on the role of good faith in the interpretation and
application of the Canadian declaration concurs with that assigned to that
role by the rules of interpretation of international law: that is, a role
analogous to the one it plays in the interpretation of treaties. Thus, good
faith has the function of helping to ascertain Canada's intention as
expressed in the declaration that Canada itself freely drafted, made and
deposited; for the legal obligation assumed by Canada in relation to other
declarant States accepting the same obligation is that to be found in the
declaration, and nowhere else.
238. Canada is solely responsible for the wording of the declaration
deposited by it in 1994 in exercise of its sovereignty. In these
circumstances, good faith must play a fundamental role in the
interpretation [p 671] and application of the declaration. Otherwise, faced
with an application by a declarant State, the respondent declarant State
could always reply that its intention consisted in truth not in that
expressed in its declaration, but in subjective considerations political
or other which might, moreover, change over the course of time.
239. The role of the principle of good faith in the interpretation of
unilateral declarations is not open to question by anyone. It is even more
fundamental than in the case of the interpretation of treaties, precisely
because every declaration is an act solely attributable to the declarant
State. That is what the jurisprudence of the Court states, even in cases
where the declaration in question is governed not by paragraph 2 of Article
36 of the Statute, but by general international law:
"[Just as the very rule of pacta sunt servanda in the law of treaties] is
based on good faith, so also is the binding character of an international
obligation assumed by unilateral declaration. Thus interested States may
take cognizance of unilateral declarations and place confidence in them, and
are entitled to require that the obligation thus created be respected."
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 268,
para. 46; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports
1974, p. 473, para. 49; emphasis added.)
The Judgment of the Court of 11 June 1998 in the case concerning the Land
and Maritime Boundary between Cameroon and Nigeria (Preliminary
Objections), which involves declarations under the optional clause system,
also contains a number of statements regarding the principle of good faith
in relation to the question whether there is an obligation to give advance
notification of acceptance of the compulsory jurisdiction of the Court and
of the intention to file an application. In this context, the Court
observed:
"that the principle of good faith is a well-established principle of
international law. It is set forth in Article 2, paragraph 2, of the Charter
of the United Nations; it is also embodied in Article 26 of the Vienna
Convention on the Law of Treaties of 23 May 1969. It was mentioned as early
as the beginning of this century in the Arbitral Award of 7 September 1910
in the North Atlantic Fisheries case (United Nations, Reports of
International Arbitral Awards, Vol. XI, p. 188). It was moreover upheld in
several judgments of the [Permanent] Court . . ." (I.C.J. Reports 1998, p.
296, para. 38.)
The Court goes on to note that "although the principle of good faith is 'one
of the basic principles governing the creation and performance of legal
obligations . . ., it is not in itself a source of obligation where none
would otherwise exist' . . ." (ibid., p. 297, para. 39; emphasis added).
240. In the present case, we are dealing with a specific obligation on a
declarant State under the optional clause system of the Statute of the
Court: not, indeed, to subscribe to that clause, which is an entirely free
[p 672] and voluntary sovereign act; but not to do so while concealing its
true intentions or equivocating with regard to the scope of the legal
obligation it appears to be undertaking in the light of the terms of the
declaration. In my view, chicanery, to use the traditional term, has no
place in the optional clause system, which is a means of creating legal
obligations assumed by the declarant State vis-α-vis the other declarant
States. This point would seem to be regarded by the Judgment as irrelevant
to the interpretation of a reservation in a declaration under the optional
clause system.
241. Indeed, reading the reasoning of the Judgment, one is forced to
conclude that good faith plays no role as an element in the interpretation
of Canada's declaration. The paragraphs of the Judgment devoted to the
interpretation of the reservation in subparagraph 2 (d) do not once men-tion
good faith. Conversely, the Judgment rejects the contra proferentem rule for
purposes of interpreting that reservation (see paragraph 51 of the
Judgment), even though the reservation was drafted by the Canadian
Government and it is necessary to apply the principle of good faith to the
interpretation of unilateral international declarations, a principle that
cannot be reduced to a mere secondary rule of a technical nature. The
Judgment then rejects the general principle of the presumption of the
legality of legal instruments, invoked by the Applicant (paragraphs 53 to 55
of the Judgment) and expressed in the Court's jurisprudence in the Right of
Passage over Indian Territory case, where it is stated:
"It is a rule of interpretation that a text emanating from a Government
must, in principle, be interpreted as producing and as intended to produce
effects in accordance with existing law and not in violation of it." (I.C.J.
Reports 1957, p. 142; emphasis added.)
The considerations on the basis of which the Judgment rejects this rule of
interpretation are a particularly good illustration of the spirit that
inspires all those paragraphs of the Judgment concerning the interpretation
of the Canadian reservation. These considerations also give an inac-curate
representation of the Applicant's arguments founded on that rule.
242. Spain has not, as the Judgment claims, confused "the acceptance by a
State of the Court's jurisdiction and the compatibility of particular acts
with international law" (para. 55). The Applicant did not invoke the rule in
question in order to obtain a decision from the Court on the substantive
issue as to whether or not certain forms of conduct engaged in by Canada in
its regard were compatible with international law. Far from it. Spain
invoked the presumption of the legality of legal instruments emanating from
a government exclusively as a rule of interpretation, taking account of the
wording by Canada of the text of the reservation in paragraph 2 (d) of its
declaration. It is for the purposes of such an interpretation that the
Applicant relies on the rule laid down by the Court in the Right of Passage
case. [p 673]
243. And why is that rule perfectly applicable in the present case? Because
it is contrary to the principle of interpretation in good faith of
declarations that the ambiguities, obscurities or silences in the text of a
reservation or of any other part of a declaration should enable a meaning or
scope at variance with existing law to be attributed to that text by
interpretation. It is in such circumstances that the rule of presumption of
the legality of legal instruments emanating from a government becomes
applicable for purposes of interpretation. And those circumstances are
clearly present in this case. Hence the applicability of the rule relied on
by the Applicant in the present preliminary proceedings.
244. According to the Judgment, there might be situations as, apparently,
was the case with Canada in 1994, although the Respondent has never
acknowledged it in which a State wishing to make a declaration under the
optional clause system believes that a reservation that it intends to
include in its declaration raises or might raise a problem of legality under
international law (paragraph 54 of the Judgment). What, in my view, the
declarant State ought to do in such situations is to exercise particular
caution and care in drafting the text of the reservation in question, that
is, to express itself in the declaration in a manner consistent with such
an intention, so that, if one day it requires interpretation, the rule of
the presumption of the lawfulness of legal instruments will not be brought
into play. To assert the contrary is to derogate from the principle of
interpretation in good faith. However, bad faith on the part of a State is
not to be presumed, even in the case of interpretation of a reservation in
a declaration under Article 36, paragraph 2, of the Statute of the Court. It
is not for the interpreter in this case the Court to take it as
established fact that the reservation in paragraph 2 (d), or the
declaration in which it is incorporated, can be interpreted today as though
Canada, when making its declaration, had wished to cause it to produce
effects contrary to existing international law.
245. Furthermore, during consideration of Bill C-29, the Canadian Minister
for Foreign Affairs declared in the Senate that the Bill, "which contains
provisions that enable us to take action, has a solid legal basis" (Memorial
of Spain, Annexes, Vol. I, Ann. 16, p. 271; emphasis added). Nor did Canada
admit (notwithstanding the considerations evoked in the Judgment), either
before or after the institution of the present proceedings, having
committed in March-April 1995 acts in relation to Spain which violated
international law. Moreover, on the facts, even an interpretation of the
reservation in paragraph 2 (d) based exclusively on the practice of Canada
subsequent to May 1994 would not enable one to conclude, in the present
preliminary proceedings, that its author intended the reservation to produce
from the outset effects contrary to existing law.
246. The point at issue is neither consent to jurisdiction, nor freedom to
include reservations in declarations, but simply and solely the
interpretation in good faith of the reservations in declarations deposited
by declarant States. I therefore dissociate myself wholly from the general
[p 674] argument of the Judgment that lawfulness does not constitute a
potential yardstick for interpretation of the ambiguities, obscurities or
silences of a declaration, including those in any reservations it might
contain. That said, I cannot give greater weight to a general acceptance of
the Court's jurisdiction than to a reservation, or vice versa. The author
of this opinion is a firm believer in the integrity and unity of
declarations. I do not seek to oppose the declaration to the reservation, or
the reservation to the declaration. That is the course adopted by the
Judgment, not by myself.
6. The ordinary meaning of the terms of the reservation in subparagraph (d)
in their context and in the light of the object and purpose of Canada's
declaration
247. The entire text of paragraph 2 of Canada's declaration of 10 May 1994
is reproduced in paragraph 214 above. We may now examine it and construe the
terms of the reservation in subparagraph (d) in the context of the legal
obligation accepted by the declarant State in paragraph 2.
248. The declaration deposited by Canada is an instrument of international
law. Furthermore, it does not incorporate the Canadian legislation and
regulations in its text. Thus, the reservation in paragraph 1(d) speaks of
"conservation and management measures" taken by Canada with respect to
vessels fishing in an area of the high seas defined in the declaration by
reference to an international treaty, and of the enforcement of such
measures, without further clarification, but it makes no specific reference
for any purpose to any Canadian law or regulation. It mentions only
conservation and management measures taken and enforced by Canada in an area
of the high seas defined by an international treaty.
249. It is clear that Canada, like any other State, may take measures both
under its own domestic legal order and under the international legal order.
And it is also clear that the domestic legal order of a given country is not
to be confused with the international legal order, whether in terms of its
sources or of its subjects. It follows, moreover, from the general scheme of
the declaration that it concerns only possible disputes between Canada and
other declarant States under the optional clause system, namely,
international disputes, that is disputes involving international law, not
Canada's domestic legal order.
250. For an international Court, as the Court's settled case-law confirms,
Canada's legislation and other internal measures are only facts. Those facts
may indeed generate an international dispute, but they are not ex
definitione the law applicable to the settlement of the international
dispute in question. The applicable law is international law, including for
purposes of the interpretation of jurisdictional titles and of the
expressions and terms to be found therein, unless otherwise stated in the
jurisdictional title itself. [p 675]
251. Thus, when viewed as it must be from the international
perspective, the language of the reservation in paragraph 2 (d) of the
declaration has a meaning only if interpreted by reference to the
categories and terms of international law. If, on the contrary, as was the
case with certain Canadian interpretations, expressions such as
"conservation and management measures taken by Canada" are interpreted
without reference to international law, the text of the reservation becomes
contradictory indeed, a complete oxymoron as was rightly stressed by
counsel for Spain in the oral proceedings.
Why? Because the measures in the reservation refer to a maritime area that
is part of the high seas and to vessels in that area that may be flying the
flag of other States. However, if a State, including Canada, refers in an
international instrument to measures taken by it concerning the high seas as
"conservation and management measures", the measures in question must be
genuine "conservation and management measures" under the international law
of the sea. Otherwise, while still undoubtedly being "measures taken by
Canada", they would not be "conservation and management measures taken by
Canada", as stated in the reservation. In the interpretation of
international instruments, the abuse of language, like the abuse of law, is
never presumed. Good faith does indeed have a role to play here, for
declarations give rise to legitimate expectations on the part of other
declarant States.
*
252. In the present case, the fact is that "the Canadian declaration" and
"Canadian legislation" do not refer far from it in fact to the same
legal or material realities. They coincide as regards the "geographical"
delimitation of the reservation (the NAFO Regulatory Area), but not with
regard to other elements defining the scope of the reservation from the
"functional" standpoint, to use the terminology employed in the
Counter-Memorial of Canada. For example, the declaration, unlike the
Canadian legislation, makes no mention of "straddling stocks".
Moreover, the Canadian legislation and regulations give definitions (indeed,
more than one) of the expression "conservation and management measures",
while the text of the reservation gives none, either expressly or by
reference. The reservation uses the words "and the enforcement of such
measures", without further specification. It does not refer to "enforcement
measures". Conversely, the Canadian legislation and regulations distinguish
between the terms "Act", "regulations", "measures" and "means". Furthermore,
the use of force, so-called less violent means and the other means provided
for in the Canadian legislation and regulations do not form part of their
definitions of "conservation and management measures". They are dealt with
in provisions distinct from those that define the measures in question. [p
676]
253. The Canadian legislation also refers to a continuing pursuit
commencing while a foreign fishing vessel is in the NAFO Regulatory Area,
but the reservation in the declaration contains not the slightest reference
to pursuits in that Area, or in any other area of the high seas. In this
regard it should be noted that international law clearly distinguishes
between a right of hot pursuit of foreign vessels which it does not
recognize if the vessel is on the high seas when the pursuit commences
and the regime of conservation and management of the living resources of the
sea.
254. The Canadian legislation also deals with the application of Canadian
criminal law to acts committed in the NAFO Regulatory Area by persons on
board or by means of a foreign fishing vessel, whereas the reservation
makes no mention whatever of any application of Canadian criminal law. In
this connection, it should also be noted that under general international
law breaches of fisheries regulations will normally render the perpetrator
liable to administrative sanctions. They are certainly not treated as acts
or omissions punishable under criminal law.
255. It is clear that a declarant State may exclude, by means of
reservations in its declaration accepting the compulsory jurisdiction of
the Court, any category of matters, irrespective of whether or not they are
covered by national laws or regulations, or of the content or scope of any
such laws or regulations, where these exist. But the question for the Court
is not what Canada might have excluded by means of a reservation in its
declaration at the time when it was drafting it, but what it actually
excluded when it deposited the declaration with the Secretary-General of the
United Nations.
There is, however, a coincidence of great significance to the present case
between the language of paragraph 2 (d) of Canada's 1994 declaration and
that of the Canadian legislation and regulations: neither the former nor the
latter deals with Canada's international title to exercise jurisdiction on
the high seas over vessels flying the flag of another State.
*
256. Indeed, the Canadian legislation and regulations are silent on the
question of Canada's title under international law to exercise its State
jurisdiction over vessels flying the flag of another State in the NAFO
Regulatory Area or in any other place on the high seas ; not even in terms
of rights invoked, claimed or exercised de facto by Canada on the high seas,
as in its 1970 declaration (see paragraphs 288 to 293 of this opinion). On
the question of Canada's international title, there is thus total silence
both in the reservation and in Canadian law.
257. In 1994 Minister Tobin spoke in the Senate of "the authority that
Canada has given to itself domestically to act beyond 200 miles" (Memo-[p
677]rial of Spain, Annexes, Vol. I, Ann. 16, p. 271; emphasis added).
However, the subject of Spain's Application is Canada's capacity to act
internationally on the high seas against Spanish vessels. Regarding this
aspect of the matter, Minister Tobin explained that the broad-ranging
authority, extending beyond 200 miles, that Canada had given itself
domestically was expressly for the purpose of conservation and that Canada
would attempt to resolve the problem of foreign overfishing by agreement,
wherever agreement was possible. He mentioned co-operation within NAFO, but
added that Canada would "act by unilateral action", though only where that
was the only remaining alternative, and that he "[did] not propose to ask
anybody for permission" to adopt the new legislation (ibid., pp. 271-272).
In that connection, the Minister spoke as follows:
"Neither the Parliament nor the Government of Canada have asked permission
of other nations to enact such a piece of legislation. It would not be our
intention to ask permission of every nation. If the litmus test to determine
our fate with respect to the future of these resources, not only for
ourselves but for the world, was to have all nations of the world concur in
this action, I am afraid this action would never happen." (Ibid., p. 272.)
It is thus evident that Canada gave itself domestic powers to take action on
the high seas without any concern as to whether it had any international
title to do so. It put forward possible "justifications" for its unilateral
intervention on the high seas founded on doctrines such as "necessity",
"emergency" and even the "vital interests" of Canada, but no "international
titles" serving as a basis for the conduct on the high seas envisaged by its
national legislation. However, these alleged justifications relate to the
substance of the case and not to the present incidental proceedings. These
questions have no bearing on the interpretation of Canada's declaration of
10 May 1994.
258. In truth, Canada acted in its sovereign capacity even though the matter
concerned the high seas and, consequently, took risks that it believed it
would be able to deal with through diplomatic channels or thanks to inaction
on the part of other States. Its national self-assurance was such that it
did not even consider it necessary to draft its new declaration of 10 May
1994 so as to take due account of the international regime governing the
high seas. That regime does not concern only fish and the management or
conservation of living resources. It is a great deal wider than that! And
not only the Government of Canada, but all the States of the world, have a
legal interest in it, and their own word to say on the matter. Canada could
have excluded the regime governing the high seas by means of a reservation
in its declaration, but did not do so. That is the crux of the matter.
As I stated in Chapter III of this opinion, the subject of the dispute
before the Court is precisely Canada's international title or lack thereof
to act as it did, and as it might again do in the future (as the amended Act
[p 678] of 12 May 1994 is still in force), against vessels flying the
Spanish flag on the high seas.
*
259. The Judgment mentions the context as a criterion for interpretation
and stresses the unity of the Canadian declaration, but on the practical
level it draws no conclusion from this as regards the interpretation of the
reservation, except to make the reservation prevail over the declaration as
a whole. As I have already pointed out, the Judgment's analysis of the
reservation contained in paragraph 2 (d) for the purposes of its
interpretation actually runs contrary to the unity which it proclaims, for
the Judgment seeks to remove the reservation from its context. For the
Judgment, the context of the reservation is not the declaration (see
paragraph 197 of this opinion). In truth, as far as the Judgment is
concerned, the only legal reality to be taken into consideration in the
present preliminary proceedings is the reservation and its circumstances.
However, the reservation is not the jurisdictional instrument at issue.
There is no such thing as a "declaration" of lack of jurisdiction. There are
declarations containing reservations, which is quite a different matter for
purposes of interpretation. In fact, without acknowledging it explicitly,
the Judgment replaces the context of the reservation contained in paragraph
2 (d) by the circumstances surrounding the deposit of the Canadian
declaration, that is, by supplementary means of interpretation ! But, pace
the Judgment, it goes without saying that the text of paragraph 2 of the
Canadian declaration, like the declaration as a whole, also serves as a
context for the interpretation of particular provisions, reservations,
conditions, phrases, expressions or terms to be found in that paragraph,
including those in the reservation contained in its subparagraph (d).
260. But, furthermore, international law also tells us that in interpreting
an international instrument the text of the instrument in question is not
necessarily the only possible context of which account must be taken. It may
be and this is often the case that there are instruments or other
elements extrinsic to the text of the instrument to be interpreted which,
for the purposes of the legal process of interpretation, must be taken into
consideration as a context by the interpreter.
The question thus arises whether, for the purposes of interpretation of the
Canadian declaration of 10 May 1994, there are any instruments or elements
extrinsic to the declaration that may serve as a context for its
interpretation. It should be said at the outset that the declaration was not
the subject of any prior debate in either Chamber of Parliament. At any
rate, the Court has not been informed to the contrary. The Court has not
been apprised of any law or act of ratification of the Canadian
declaration, or of any official record concerning the deposit or delivery
of the declaration to the Secretary-General of the United Nations.[p 679]
It goes without saying that the Government of Canada prepared, drafted,
finalized, adopted and deposited the declaration of 10 May 1994 by virtue of
its powers under the Canadian constitutional system. But, in the context of
an interpretation under international law, the method adopted by that
Government means that there is no instrument or element extrinsic to the
declaration that can now serve as a context for purposes of interpretation
of the Canadian declaration by the Court. The situation is thus quite
different from those that obtained when the Court interpreted Iran's
declaration in the Anglo-Iranian Oil Co. case, or Greece's reservation in
the Aegean Sea Continental Shelf case.
*
261. As for the reservation in subparagraph 2 (c) of the declaration, it is
a typical example of an objective reservation of national jurisdiction. It
was capable of having an effect on the interpretation of the reservation in
subparagraph 2 (d), as in the Aegean Sea Continental Shelf case, especially
in so far as it is sought to define the expression "conservation and
management measures" without reference to international law. On the other
hand, inasmuch as the Canadian declaration is governed by international law
as is the case then the reservation in subparagraph 2 (d) must also be
interpreted in conformity with international law. The Respondent's position
on these questions was far from clear. Indeed, the Respondent said nothing
with regard to the reservation in subparagraph 2 (c), or to any relationship
between it and the reservation in subparagraph 2 (d) as a context for the
latter. The Judgment, too, is silent on this point, even though the
Applicant has invoked in these proceedings a rule of exclusive jurisdiction
in respect of its vessels on the high seas. Thus, no reply is to be found in
the Judgment to any of these questions.
*
262. It only remains to consider the other elements extrinsic to the
declaration of which account might need to be taken together with the
context. These are elements extrinsic to the instrument interpreted which,
while comprising neither "text" nor "context", must nevertheless be taken
into account by the interpreter in the interpretative process along with the
context. I am referring to those interpretative elements that some
English-language writers qualify, at the risk of introducing legal
ambiguities, as "wide context", a concept that must not be mistaken or
confused with that of "supplementary means of interpretation" (e.g. travaux
preparatories; circumstances of conclusion or preparation).
These extrinsic elements of which account may have to be taken concurrently
with the context consist of instruments and practices subse-[p 680] quent
to the adoption of the instrument under interpretation and relevant to its
interpretation or application, and of any relevant rule of interna-tional
law that is applicable as between the parties.
263. In the present case, Canada did not exercise, prior to the filing of
Spain's Application, the right it reserved to itself in paragraph 3 of its
declaration to add to, amend or withdraw the reservations formulated in its
declaration of 10 May 1994. It did not formulate other reservations, nor did
it make any notification with regard to the interpretation or application
of the reservations contained in the declaration. There is thus no such
notification by Canada of which account is required to be taken for purposes
of interpretation of the declaration of 10 May 1994. The same is true as
regards subsequent practice concerning the interpretation or application of
the declaration of 10 May 1994. The present dispute is the first case to
come before the Court in which the Canadian declaration of 10 May 1994 is
relied upon as the basis for the Court's jurisdiction.
264. Consequently, there only remain the relevant rules of international
law applicable in relations between the parties. On this question I believe,
first and foremost, that the Canadian declaration, which is an international
instrument intended, by its object and purpose, to produce certain effects
in international relations, must in general be interpreted and applied in
conformity with the positive international law that the Court applies. But
it is also possible, given certain expressions used in the text of the
declaration, that international law may be invoked in the interpretative
process for much more specific and concrete purposes.
*
265. I have mentioned the important function of the object and purpose in
the interpretation of declarations under the optional clause system. It is
of course the object and purpose of the declaration as such that are
relevant here. In interpreting the Canadian declaration, it is important
not to confuse, as does the Judgment, that interpretative element (or indeed
the rule of effectiveness) with the purpose or intention of the declarant
State regarding a specific provision, condition or reservation included in
the declaration.
Thus the Judgment speaks only of the effectiveness of the reservation
contained in paragraph 2 (d) and entirely neglects the role of the object
and purpose of the declaration in interpretation of that reservation.
Moreover, in the Judgment the "effectiveness" of the reservation swiftly
becomes the "effect sought" or the "intended effect" of the reservation
(paragraphs 52 and 71 of the Judgment). Here again, the purpose of the
interpretation appears to be not to deprive the reservation of the effect
"sought" or "intended" by the alleged "underlying intention" or motives of
the declarant State. The references to effectiveness are thus simply yet
another mirage. [p 681]
7. The role of international law in interpretation of the reservation
contained in subparagraph (d) of the Canadian declaration
266. International law has much to say regarding the interpretation of any
given international legal instrument, even when the instrument in question
is a jurisdictional title, as is the case with the 1994 Canadian
declaration. International law has a role to play in the interpretation of
declarations both as regards the words and expressions used in the text and
as regards its silences.
Declarant States themselves normally use terms and expressions of
international law in wording their declarations. The Aegean Sea Judgment is
a good example of this, and it has in fact been cited by both Parties in the
present proceedings.
267. That said, we should bear in mind that "any relevant rules of
international law applicable in the relations between the parties" are among
the elements which make up the general rule of interpretation laid down in
the 1969 Vienna Convention on the Law of Treaties (Art. 31, para. 3 (c), of
the Convention) and that the reservation in paragraph 2(c) of the Canadian
declaration of 1994 excludes from the Court's compulsory jurisdiction
jurisdiction which Canada accepted "disputes with regard to questions
which by international law fall exclusively within the jurisdiction of
Canada" (emphasis added).
268. It follows inasmuch as the Respondent, directly or indirectly,
maintains that disputes relating to measures taken by Canada in respect of
vessels fishing in the NAFO Regulatory Area are disputes which, for one
reason or another, are subject exclusively to Canadian jurisdiction that
the reservation in subparagraph 2 (c) of the declaration should be fully
applicable in the present preliminary proceedings. At this point, we need to
see what international law has to say on this subject in order to determine
the resultant consequences for the interpretation of the reser-vation in
subparagraph 2 (d). As the Permanent Court stated:
"it is enough to observe that it may well happen that, in a matter which,
like that of nationality, is not, in principle, regulated by international
law, the right of a State to use its discretion is nevertheless restricted
by obligations which it may have undertaken towards other States. In such a
case, jurisdiction which, in principle, belongs solely to the State, is
limited by rules of international law . . ." (Nationality Decrees Issued in
Tunis and Morocco, Advisory Opinion, 1923, P.C.I. J., Series B, No. 4, p.
24.)
269. In point of fact, however, in the oral phase of the present
proceedings Canada did not go that far. In rejecting the Spanish arguments
regarding "automatic" or "self-judging" interpretations of the reservation
in subparagraph (d), counsel for Canada more than once made statements like
the following: [p 682]
"We have never suggested that anything Canada or Canadian legislation
unilaterally defines as a conservation and management measure is ipso facto
a conservation and management measure for the purposes of the reservation.
We did not include in the text of the reservation the words 'in the opinion
of Canada', or 'as defined by Canadian legislation'. And, we have never
suggested that the reservation should be interpreted as if those words were
there." (CR 98/14, p. 39.)
"Canada does not say 'These are conservation and management measures
because we say so.' We do not define 'conservation and management measures'
simply by reference to Canadian law. We readily concede to the Court the
power to decide whether the Cana-dian measures are conservation and
management measures by reference to general practice. And we can also
concede the Court's power to decide whether the Canadian enforcement actions
are 'enforcement' actions also by reference to general practice." (CR
98/14, p. 11.)
These statements by Canada represent implicit admissions by the Respondent
that international law and international practice have an important role to
play in the interpretation of the reservation in subparagraph 2 (d) of the
declaration. They also serve to acknowledge the fact that the reservation is
one which requires to be interpreted before it can be applied. In other
words, we are far from Vattel's "clear meaning" maxim. And if the
reservation has to be interpreted, then it has to be interpreted within the
framework of international law and in accordance with it. In the present
case, the international law in question is the general international law
concerning the interpretation of international instruments and that
establishing the legal regime for the high seas, including the conservation
and management of living resources within that maritime space.
There are definitely words, expressions and silences in the reservation in
subparagraph (d) of the Canadian declaration which, as we shall see, require
the interpreter to have recourse to international law in order to be able to
establish, by interpretation, the meaning and scope they actually bear in
the reservation.
270. The Court has had to interpret words in international instruments in
the light of international law on more than one occasion. Examples of this
are the interpretation of the word "dispute" in the case concerning Rights
of Nationals of the United States of America in Morocco (1952), the
expression "sacred trust of civilization" in the South West Africa cases
(1962, 1966) and the term "territorial status" in reservation (b) to
Greece's instrument of accession to the General Act of 1928 in the Aegean
Sea Continental Shelf case (1978). Recourse to international law by arbitral
tribunals in interpreting international instruments is also very frequent
and long-standing. In 1919, for example, in the North Atlantic Coast
Fisheries case, the arbitral tribunal interpreted
[p 683] the word "bays" in a treaty of 1818 in the light of the
international law of the sea as it stood at the time the treaty was
concluded.
271. In the case concerning Maritime Delimitation in the Area between
Greenland and Jan Mayen (1993), the Court interpreted the 1965 Agreement
between Denmark and Norway "in its context, in the light of its object and
purpose", beginning in this respect with a reference to the definition of
"continental shelf in the 1958 Geneva Convention on the Continental Shelf (/
C.J. Reports 1993, p. 50, para. 27). International law is fully evident in
the Court's treatment of other issues of interpretation which are dealt with
in that Judgment, for example, the question of the relationship between the
delimitation of the continental shelf and the fishery zones of the Parties.
On this point, the Judgment mentions the concept of the exclusive economic
zone "as proclaimed by many States and defined in Article 55 of the 1982
United Nations Convention on the Law of the Sea" (ibid., p. 59, para. 47).
272. What is the meaning of the expression "conservation and management
measures" in general international law as it was in 1994 and as it is today?
To reply briefly, but adequately for the present purpose, we must turn to
the new legal order of the sea which States established at the Third United
Nations Conference on the Law of the Sea, by concluding the United Nations
Convention on the Law of the Sea of 10 December 1982.
This Convention gives formal expression to the general rules concerning the
conservation and management of the living resources of the high seas. The
Court's case-law has confirmed on a number of occasions and in varying
contexts that the 1982 Convention reflects the general practice of States in
present-day international relations concerning the law of the sea, as well
as their opinio juris in this respect.
273. The provisions which deal with such measures are Articles 116 to 120 of
the Convention, and also, as regards straddling stocks, Article 63 of the
Convention. The broad duty laid down in the Convention is that each State
shall take such measures for its respective nationals as may be necessary
for the conservation of the living resources of the high seas, and
co-operate with other States in taking those measures (Art. 117). This duty
is expanded on in Articles 118, 119 and 120. As regards straddling stocks,
Article 63, paragraph 2, provides that:
"the coastal State and the States fishing for such stocks in the adjacent
area shall seek, either directly or through appropriate sub-regional or
regional organizations, to agree upon the measures necessary for the
conservation of these stocks in the adjacent area".
There is no provision in the 1982 Convention which authorizes a State,
whether coastal or not, to exercise its jurisdiction over a vessel flying
the flag of another State on the high seas, or board such a vessel by force
[p 684] without the authorization of the flag State, for purposes of the
conservation and management of the living resources of the high seas. In
general international law such purposes do not derogate from the
jurisdiction of the flag State. As Article 92, paragraph 1, of the 1982
Convention puts it:
"Ships shall sail under the flag of one State only and, save in exceptional
cases expressly provided for in international treaties or in this
Convention, shall be subject to its exclusive jurisdiction on the high
seas." (Emphasis added.)
*
274. The reservation in subparagraph (d) of the Canadian declaration does
not concern every possible and imaginable measure, but one single category
of measures, namely "conservation and management measures" taken by Canada
with respect to vessels fishing in the NAFO Regulatory Area, and the
enforcement of such measures. This is a limitation of the reservation
expressly intended by the declarant State which is of great importance in
evaluating the scope of the consent which Canada expressed in 1994 in its
declaration accepting the compulsory jurisdiction of the Court.
275. Canada might have worded its reservation so as to refer simply to
"measures taken by Canada . . .", but it did not do so. Why it did not do so
lies outside the task of interpretation which falls to the Court in the
present proceedings. That is a question which concerns the political or
other motives which Canada had in formulating and depositing the
declaration of 10 May 1994. The Court is not required to determine or pass
judgment on the motives of a sovereign State where it makes a declaration
under Article 36, paragraph 2, of the Statute. Its task is to assess the
extent of the consent which the State has manifested in the declaration in
question, so as to be able to give it effect.
276. In any case, it would be incompatible with the rules of interpretation
generally accepted in international law to hold that the words
"conservation and management" qualifying the word "measures" in the
reservation are totally without purpose or effect. The declarant State must
certainly have had some meaning in view when it used the words
"conservation and management", and therefore what it intended to say in
this regard also forms part of the elements which define the scope of the
reservation in subparagraph (d) and, consequently, of Canada's consent to
the compulsory jurisdiction of the Court.
277. Thus in order, to be in a position to determine the scope of the
reservation in subparagraph (d),the Court has to interpret the meaning of
the expression "conservation and management measures" contained in the
reservation, particularly since the Parties cannot agree on it. This
situation very often arises in preliminary proceedings on jurisdiction
concerning declarations. How should the Court go about this? In my opinion,
there is only one answer: in the absence in the Canadian declaration of [p
685] any definition direct or indirect of the "conservation and
management measures" referred to in subparagraph (d) of its reservation
which gives that expression a special meaning, the interpreter can only
construe it in the light of its ordinary meaning in general international
law.
278. Whether or not the interpreter turns to international law always
depends, in the last analysis, on the intention manifested either expressly
or by necessary implication by the author or authors of the instrument to
be interpreted or applied, because, as masters of the text, he or they could
have given the legal term in question a meaning different from the one it
possesses in general international law, in other words, a special meaning.
But they must actually have done so. Canada has not done so in respect of
the "conservation and management measures" referred to in the reservation in
paragraph 2 (d) of its 1994 declaration.
Recourse is frequently had to international law in the interpretation of
unilateral or conventional international legal instruments. It happens very
often, even where it is a case of interpreting terms used to describe
certain basic concepts or notions forming part of a body of rules, a regime
or a particular international legal status. Maritime spaces such as the high
seas are a good example of this.
8. The circumstances surrounding the deposit of the Canadian declaration as
a supplementary means of interpretation
279. The Court has not been provided with any travaux preparatories
concerning the declaration which Canada deposited with the United Nations
Secretary-General on 10 May 1994, but there have been available to it the
reports of the debates in the Canadian House of Commons, and in the Senate
immediately afterwards, on Bill C-29 amending the Canadian Coastal Fisheries
Protection Act, and on Bill C-8 amending the Canadian Criminal Code, both of
which became law on 12 May 1994.
280. I have no difficulty in accepting the existence of a relationship
between Canada's new declaration and the passing of Bills C-29 and C-8. This
arises from the following well-established facts: (a) the Canadian
declaration of 10 May 1994 was deposited only two days before the Act
amending the Canadian Coastal Fisheries Protection Act was assented to; (b)
the 1994 declaration contains a reservation in paragraph 1(d) which was not
part of the Canadian declaration of 10 September 1985; (c) the 1985
declaration was revoked by the new declaration of 10 May 1994; and (d) on 12
May 1994, in the Senate, the Canadian Minister of Foreign Affairs and
International Trade, Mr. Ouellet, expressly established a relationship
between the new 1994 declaration and Bill C-29, which was then about to be
passed. A link also exists between Bill C-8 and the passing of Bill C-29. [p
686]
The reports of the debate are not of course travaux prιparatoires of the
declaration itself, nor are they circumstances "surrounding" the
declaration. As the Respondent has most aptly put it, they are merely
circumstances "surrounding the deposit of the declaration".
(a) The statements made in the Senate on 12 May 1994 by the Canadian
Minister of Foreign Affairs and International Trade
281. I have already referred in various contexts to statements made by Mr.
Tobin during these parliamentary debates. There are also the statements of
Members of Parliament, some of which have been commented on by the Parties,
in particular in the Memorial and the Counter-Memorial. From the point of
view, however, of interpreting the Canadian declaration of 10 May 1994, by
far the most important, as evidence of Canada's intentions regarding this
declaration, or as an indication of them, are the statements made in the
Senate on 12 May 1994 by the Canadian Minister of Foreign Affairs and
International Trade, Mr. Ouellet. Let us examine these for a moment.
282. The best way of successfully grasping the meaning and scope of Mr.
Ouellet's statements (only two sentences of which are reproduced in the
Judgment, in paragraphs 60 and 77) is to read them in the context of the
debate, since the Minister did not make his statements on his own initiative
but in reply to questions put by Senator Beaudoin. These exchanges are
reproduced in the records (Memorial of Spain, Annexes, Vol. I, Ann. 16, p.
271) as follows:
Senator Beaudoin
"Mr. Minister, I have no problem with the principle of the bill. I have
already voted on second reading. As a jurist I am a little concerned about
the reputation of our country in the international field.
I have read that some jurists have stated that, strictly speaking, Canada
may be making something that is beyond law; but, of course, some other
jurists will say that, yes, we are in a crisis, and I agree that we are in a
crisis. So they are applying to a certain extent the doctrine of emergency
outside the territory of Canada, and even over the 200-mile limit.
Do you have any assurance from your legal experts that this is not
unprecedented, that we may have good reasons to do it?"
Minister Ouellet
"I may remind honourable senators that Canada took a similar approach in the
70s with respect to the Arctic, so there is a precedent.
I may also recall that on a number of occasions, other countries [p 687]
have passed similar laws to protect what they considered to be the national
interest.
Our bill, which contains provisions that enable us to take action, has a
solid legal basis. As you know, to protect the integrity of this
legislation, we registered a reservation to the International Court of
Justice, explaining that this reservation would of course be temporary and
would apply only during such time as we felt was necessary to take
retaliatory action against those engaged in overfishing.
We have every reason to believe that the legislation gives Canada the right
to take action against these pirate vessels and that other countries will
not challenge Canada's right to act." (Emphasis added.)
Senator Beaudoin
"You see this is as a necessarily temporary, extraordinary measure, to deal
with an emergency?"
Minister Ouellet
"Yes. We think that overfishing is a very serious threat to certain fish
species and that unless we intervene quickly, across the board, we will not
be able to save these species.
We have said from the outset, and Canada's representatives abroad in our
various embassies have explained to our European partners and other parties,
that this measure is directed first of all toward vessels that are
unflagged or that operate under so-called flags of convenience, and these
are the people who act like irresponsible pirates and must be removed from
the Nose and Tail of the Grand Banks." (Emphasis added.)
283. Two main conclusions can be drawn from these statements by Mr. Ouellet
as to Canada's intentions when its Government deposited the declaration of
10 May 1994. They can be summed up as follows:
(1) There was a connection between the deposit of Canada's new declaration
and the protection of what the Minister called "the integrity of the
legislation". Yet Bill C-29 (and Bill C-8 too) deal not with the
international title of Canada to exercise its national jurisdiction on the
high seas over foreign vessels, but with what are called conservation and
management measures taken and enforced by Canada on the high seas against
vessels described by the Minister as "pirate" vessels. The question of
international title is not touched upon. This is confirmed in the statements
made by Mr. Tobin. As regards international title, namely Canada's right or
capacity to act on the high seas under international law, Mr. Ouellet was
counting on the absence of any challenge from other States, including
European States, but that presumed absence does not [p 688] form part of the
provisions of the Act either. The purpose of the Act is to establish a title
under Canadian law enabling the Government to act within that legal order.
Moreover, the Minister confined himself to asserting that the bill has "a
solid legal basis". What is more, he said, it was a necessarily temporary
and extraordinary measure.
(2) Bill C-29 concerns fishing activities in a specified area of the high
seas (the NAFO Regulatory Area) for the stated purpose of conservation and
management of the straddling stocks in that area, the vessels contemplated
being primarily "stateless" vessels and vessels flying "flags of
convenience". The Minister's description of these vessels as pirate vessels
was very probably designed to seek out some basis for jurisdiction in
international law, even in respect of those vessels, and thus to dispel the
misgivings of certain Members of Parliament. The Minister also spoke of
taking "retaliatory action against those engaged in overfishing". I shall
come back to the Minister's use of the term "retaliatory action"
["reprιsailles"] in connection with the interpretation of the text of the
reservation in paragraph 2 (d) of the declaration, since it is a notion
which also has a precise meaning in international law. Its use by the
Minister is significant.
(b) The statements by the Canadian Minister of Fisheries and Oceans
284. The Minister of Fisheries and Oceans, Mr. Tobin, spoke on more than one
occasion in the parliamentary debates on Bill C-29, and to various effects.
I have already cited some of his statements and the Judgment cites others
too. For example, he expressly excluded Spanish and Portuguese fishing
vessels from the sphere of application of the new legislation because Spain
and Portugal participated fully as NAFO member States, and this was
confirmed subsequently by the implementing regulations of 28 May 1994. What
is more, he also said, on another occasion, that "[fjhe legislation gives
Parliament of Canada the authority to designate any class of vessel for
enforcement of conservation measures. The legislation does not categorize
whom we would enforce against" (see Judgment, para. 77; emphasis added). As
regards these new classes of vessels, therefore, the Minister was referring
to Parliament (and not just the implementing regulations made by the
executive); nor did he talk about conservation and management measures
taken and enforced by Canada independently of NAFO or in violation of the
NAFO Convention; above all this was not of course his responsibility as
Minister of Fisheries and Oceans he expressed no view about the possible
relationship between the new Canadian legislation on protection of coastal
fisheries and the scope of the Canadian declaration of 10 May 1994.
285. Mr. Ouellet was the only person to do that, in the terms I have
indicated, as Minister of Foreign Affairs. And internationally, any
statements to be taken into account in the interpretation of the Canadian
dec-[p 689]laration would undoubtedly be those of the Minister of Foreign
Affairs. Here, as in other contexts, the Judgment overturns the natural
order of things without offering the slightest justification. It quotes just
a few lines from Mr. Ouellet's statements and links them to certain passages
from one of Mr. Tobin's!
(c) The news release of 10 May 1994
286. As regards Canada's intentions, the Judgment seems to ascribe a certain
evidential value to a Canadian news release of 10 May 1994, which read as
follows:
"Canada has today amended its acceptance of the compulsory jurisdiction of
the International Court of Justice in The Hague to preclude any challenge
which might undermine Canada's ability to protect the stocks." (Paragraph 60
of the Judgment; emphasis added.)
287. I am far less certain than the Judgment that "any challenge" is the
same thing as "any application to the Court". After all, the news release
speaks of the protection of Canadian stocks, whereas the declaration
concerns the NAFO Regulatory Area (the high seas) and makes no mention of
"stocks", whether Canadian, straddling or any other. At all events, the news
release does nothing to detract from the conclusions expressed above with
regard to the statements made two days later by Mr. Ouellet in the Senate.
By its very nature, the news release cannot be accorded greater evidential
value than the statements in the Senate by the Minister of Foreign Affairs,
just as a Registry press release cannot take precedence over the contents of
a judgment or an order of the Court. I interpret this news release in the
light of those statements by Mr. Ouellet.
9. Other supplementary means of interpretation
(a) The Canadian declaration of 7 April 1970
288. Decisive proof exists that Canada's intention when it drafted the
reservation in paragraph 2 (d) of the declaration of 10 May 1994 was
directed not to the question of Canada's title, jurisdiction or rights on
the high seas, but in fact to the disputes which might arise from the
conservation and management measures which it took and enforced. That proof
lies in the Canadian declaration of 7 April 1970.
Mr. Ouellet cites the 1970 approach as a precedent. In doing so he
acknowledges that when the Canadian Government drew up the declaration of
10 May 1994 it had to hand its declaration of 7 April 1970, which did in
fact contain a reservation ((d) relating to questions then of concern to
the Canadian authorities with regard to the creation of exclusive fishery
zones and the pollution of the waters of the Arctic. Here was a [p 690]
ready-made model for the Canadian Government if its intention was, by way of
a reservation, to exclude disputes concerning Canada's title, juris-diction
or rights on the high seas. But that ready-made model was not utilized. In
its place came the new text of paragraph 2 (d) of the present declaration,
which relates solely to measures taken and enforced by Canada. The
differences between the two texts are absolutely conclusive.
289. In 1994, the 1970 procedure was adopted but not the text of the 1970
reservation in subparagraph (d). That was deliberately discarded in 1994.
The conclusion to be drawn by the interpreter could not be clearer: the text
of the 1970 reservation in subparagraph (d) was not adopted because the
Canadian Government's intention in 1994 was not the same as in 1970. Since
Canada has not given the Court any satisfactory explanation of the
significant difference between the texts of these two reservations, I
consider it demonstrated for the purpose of the present proceedings that
Canada's intention in drawing up the 1994 reservation was far more limited
in scope than its intention with the 1970 reservation, and that it did not
concern disputes relating to Canada's title, jurisdiction or rights on the
high seas (in connection with the 1970 declaration, see the separate opinion
of Sir Robert Jennings appended to the Judgment which the Court delivered
in 1984 in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 551).
290. How then did Canada formulate the reservation in subparagraph (d) of
the 1970 declaration in order to achieve the political aim expressed at the
time by its Prime Minister? It worded it as follows:
"(d) disputes arising out of or concerning jurisdiction or rights claimed or
exercised by Canada in respect of the conservation, management or
exploitation of the living resources of the sea, or in respect of the
prevention or control of pollution or contamination of the marine
environment in marine areas adjacent to the coast of Canada" (I. C.J.
Yearbook 1970-1971, p. 49).
In the 1970 reservation, therefore, the first issue is "jurisdiction" and
"rights claimed or exercised by Canada", followed by measures "in respect of
the prevention or control of pollution", whereas in the declaration of 10
May 1994 the reservation in subparagraph (d) is confined to "measures",
specifically to "conservation and management measures taken by Canada with
respect to vessels . . . and the enforcement of such measures". There is not
a word in the present declaration about "jurisdiction" or "rights claimed
or exercised by Canada". In this respect no honest interpretation can
attribute the same scope to the reservation in subparagraph (d) of the 1970
declaration as to that in subparagraph (d) of the 1994 declaration. [p 691]
291. The declaration of 10 May 1994 does not exclude from the Court's
jurisdiction disputes concerning jurisdiction or rights claimed or exercised
by Canada ultimately, disputes concerning its international title in any
area of the high seas in regard to matters or activities of whatever nature,
including the conservation and management of living resources in the NAFO
Regulatory Area.
292. The facts thus speak for themselves: the same approach in 1970 and
1994, but not the same intention and consequently different texts for the
reservation in subparagraph (d) of each of the declarations. Canada made a
choice when it drew up its new declaration in 1994. That choice was surely
not the best way of defending itself against an application of the kind
filed by Spain on 28 March 1995. But that is the choice which Canada made,
and in my opinion that choice, as expressed in the declaration of 10 May
1994, represents the consent of Canada to the compulsory jurisdiction of the
Court in regard to the present case.
293. Given the importance of this circumstance as evidence of Canada's
intentions in May 1994, I cannot understand why the present Judgment is
totally silent with regard to the 1970 declaration, which was mentioned in
the Senate as a precedent by the Minister of Foreign Affairs, Mr. Ouellet.
The Judgment prefers to talk of a news release! My surprise turns to
astonishment at the fact that the Judgment itself acknowledges that the
intentions of the Government concerned can be ascertained "by comparing the
terms of the two instruments" (paragraph 50 of the Judgment), and the fact
that it employs that method in regard to the 1985 and 1994 declarations
(see, for example, paragraph 59 of the Judgment). In my opinion, the
comparison between the 1970 and 1994 declarations is of far more decisive
importance for ascertaining Canada's intention from elements extrinsic to
the declaration.
(b) The NAFO Convention of 1978
294. Geographically, the scope of the reservation in paragraph 2 (d) of the
Canadian declaration of 1994 is confined to the NAFO Regulatory Area, as
defined in Article I of the Convention on Future Multilateral Cooperation in
the Northwest Atlantic Fisheries, done at Ottawa on 24 October 1978 (and in
force since 1 January 1979). Canada and the European Community are parties
to this Convention (Spain was also a party before it joined the Community).
It should be noted that the geographical scope of the reservation is
defined in terms of an international treaty to which Canada is a party and
not, in any respect, by reference to Canadian national legislation, as could
have been the case.
295. The conservation and management measures taken by Canada, and their
enforcement as contemplated in the reservation in subparagraph (d) of the
Canadian declaration, are therefore deemed to co-exist [p 692] in the NAFO
Regulatory Area with those taken by an international organization, the
Northwest Atlantic Fisheries Organization (NAFO) set up by Article II of the
Convention, and including a Fisheries Commission. It is of course this
Commission which is responsible for the management and conservation of the
fishery resources of the NAFO Regula-tory Area (Article XI of the
Convention).
296. The dispute referred to the Court by Spain does not concern fisheries
or the management and conservation of the fishery resources of the high
seas, either in the NAFO Regulatory Area or elsewhere. Nevertheless, a
question does arise in the present preliminary proceedings as to the
interpretation of a reservation in the Canadian declaration of 1994, a
reservation which refers to the 1978 NAFO Convention and its Regulatory
Area. This purpose fully justifies our examining whether the NAFO
Convention is of some value as a supplementary means of interpreting the
reservation in paragraph 2 (d) of that declaration.
297. The question arises because of the Respondent's contention that, for
the purpose of interpreting its reservation, the measures which it took
against the Estai and other vessels flying the Spanish flag and fishing in
March/April 1995 in the NAFO Regulatory Area (on the high seas) are
"conservation and management measures taken by Canada . . . and the
enforcement of such measures". It is clear to me that international law does
not take the same view. And a reading of the 1978 NAFO Convention also
shows that the measures taken by Canada against Spanish and Portuguese
vessels in 1995 represented neither management and conservation measures
nor their enforcement as contemplated in the NAFO treaty regime.
298. This raises a problem which the present Judgment ignores. It concerns
good faith. Can we accept an interpretation of certain terms and expressions
in the Canadian reservation which inevitably implies a breach by Canada of
the provisions of an international treaty? Can we accept by means of
interpretation that Canada intended, when it deposited its 1994 declaration,
to violate the provisions of the NAFO Convention in the Regulatory Area in
regard to vessels of States which are members of that Organization? In
international law the interpreter cannot presume such a degree of bad faith
on the part of a declarant State which is a party to the convention in
question. Nor is there any evidence of it in the documents. On the contrary,
in May 1994 Canada championed the cause of NAFO and the management and
conservation measures approved by the organization.
299. The NAFO Convention does not affect the exercise by the flag State of
jurisdiction over its vessels in the Regulatory Area, nor does it provide
any means of control involving the use of force or violence or [p 693]
coercion by other States, without the consent of the flag State, against the
latter's fishing vessels and their crews, etc. In a word, the NAFO
Convention deals with the management and conservation of resources in an
area of the high seas in a manner compatible with general international law
and the 1982 Convention on the Law of the Sea, namely through co-operation
and agreement among the States concerned and in respect for their
sovereignty. Where for one reason or another States wish to go further than
general international law in controlling fishing on the high seas, they
conclude agreements like the one of April 1995 between Canada and the
European Community, which NAFO subsequently adopted.
300. I therefore put the following question: are we entitled, in the
circumstances of this case, to interpret the expressions "conservation and
management measures" and "enforcement of such measures" in the reservation
in paragraph 2 (d) of the 1994 Canadian declaration in a manner running
counter to the meaning and scope possessed by those notions in the NAFO
Convention, which in March 1995 applied for the same purposes and to the
same area of the high seas, and to which Canada is a party and whose cause
it championed in May 1994? Can such an underlying intention be attributed to
Canada at that time? It is a serious matter to ascribe to a State, by means
of subjective methods of interpretation, an intention to violate an
international treaty in order to be able to attribute a particular meaning
to the present reservation. I shall refrain from doing so. The Judgment is
silent on this point, but its silence is no answer to a question which
inevitably arises in the context of the interpretation it places on the
reservation in paragraph 2 (d) of the Canadian declaration.
10. The interpretation of the reservation in subparagraph (d) of the
Canadian declaration in the light of the rules, elements and methods of
interpretation of international law
301. Paragraphs 61 to 87 of the Judgment set out the considerations and
conclusions of the majority of the Court with regard to the actual
interpretation of the reservation in paragraph 2 (d) of the Canadian
declaration of 10 May 1994, which the Spanish Application of 28 March 1995
invokes as a basis for the jurisdiction of the Court. I am in total
disagreement with the whole of these considerations and conclusions as well.
(a) The "measures" referred to in the reservation
302. The word "measures" appears twice in the reservation in paragraph 2
(d) of the Canadian declaration and with the same meaning. It is not defined
either in the reservation itself or in any other part of the declaration. In
this reservation the word must therefore be given its ordi-[p 694]
nary meaning. In its ordinary meaning, or its usual or natural meaning if
one prefers, a "measure" is something which is taken or implemented with a
view to a given result. The reservation specifies the kind of measures
(conservation and management), who is to take the measures (Canada), the
object of the measures taken or enforced by Canada (vessels fishing in the
NAFO Regulatory Area) and the maritime space within which those measures are
to apply and be enforced (the area of the high seas defined by the NAFO
Convention as "the Regulatory Area").
303. I have no problem with the interpretation as such of the word
"measures" in the context of the reservation and the declaration. The
Spanish Memorial dwelt at length on the meaning of "measures" in the context
of Canadian law. Here, however, I am dealing with its meaning in the
reservation in subparagraph (d) of the Canadian declaration, which is an
international instrument, and not with the meaning which the term has or
might have in the internal legal order of Canada.
I agree that, in the reservation, "measures" refers to all the measures
taken by Canada, including legislative measures, such as the amended Coastal
Fisheries Protection Act. This being so, we should be consistent and
acknowledge at the same time that the reservation is not concerned in any
way with title or the question of title, not even as regards the internal
legal order of Canada.
There is no justification for confounding the meaning of "measures" with
that of Canada's "title" or "right" to take and enforce the measures
contemplated in the reservation in subparagraph (d). This is precisely why I
cannot accept the Canadian argument that "an exclusion of jurisdiction with
respect to a measure not only includes but is above all an exclusion of
disputes about the legal right to take those measures" (CR 98/14, p. 38). In
my opinion, it is perfectly possible that where there is no title "the
measures cannot be measures, the rights claimed could not be rights, the
jurisdiction exercised could not be jurisdiction" (ibid., p. 37).
304. In other words, I consider the "measures" of the reservation in
subparagraph (d) to embrace everything connoted by "measures" in the
ordinary or natural meaning of the word in international law, but nothing
else. This is an important conclusion because it carries the implication
that the question of title does not fall within the "measures" referred to
in the reservation in paragraph 2 (d) of the Canadian declaration. Whatever
may be said, one thing is certain: the title, jurisdiction and rights of
Canada are not contemplated in the reservation and the ordinary meaning of
the word "measures" in international law does not embrace the notion of
title. That is probably why the majority of the Court re-defined the
subject-matter of the dispute referred to it in the Spanish Application in
the way it did, namely by excluding from its definition of it the question
of Canada's title or absence of title in international law to take the
measures referred to in its reservation and/or enforce them. This is all
very fine and well if the aim is to exclude the Court's jurisdiction at all
[p 695] costs, but does the Court have the power to act in this way? I have
already answered this question in Chapter III of the present opinion.
305. Title is the status, authority or power conferring upon a person a
right, or the ability to exercise that right, or to enforce the performance
of an obligation, or doing of an act, by another person. In other words,
title is the source or basis of the right, or of its exercise, or of the
enforce-ment or other claim, but it is not a measure. Where the "title"
exists, it precedes the "measure". "Measures" are taken and enforced by
virtue of, in opposition to, or without title. This is the whole point! In
every case, though, whether a "measure" is taken or enforced under, in
opposition to, or without title, it is not a "title" in the ordinary meaning
of either of these words in international law. And the Canadian declaration
of 1994 is an international legal instrument.
306. The context of the word "measures" in the reservation lends support to
the ordinary meaning of the term which I have just indicated. The measures
are those of conservation and management taken by Canada "with respect to
vessels fishing..." and of the enforcement of such measures in an area of
the high seas, namely the NAFO Regulatory Area. Clearly, measures intended
to apply to vessels fishing in an area of the high seas have nothing to do
with any title or titles that Canada might possess in regard to other
sovereign States to take action against their vessels in a maritime space
which is subject to a regime of res communis.
307. The international regime of the high seas of the high seas as a whole
and the kinds of jurisdiction which that regime entitles States to
exercise on the high seas over vessels within that maritime space are
questions of international law, and in the first instance concern relations
of sovereignty between States, their rights and their duties on the high
seas.
Where an international text such as that of the reservation in paragraph 2
(d) of the Canadian declaration speaks simply of "measures" taken by a
single State, concerning not other States but "vessels" within an area of
the high seas, it obviously does not cover the question of the title or
titles of States as sovereigns to act on the high seas or to exercise any
kind of State or national jurisdiction on the high seas with regard to other
sovereign States.
308. It follows that, in the context of the reservation in subparagraph (d)
of the Canadian declaration, the word "measures" does not concern Canada's
title under international law to take or enforce the measures in question.
This conclusion is confirmed by the supplementary means of interpretation,
that is to say, by the circumstances surrounding the deposit of the Canadian
declaration (including the statements by Mr. Ouellet and Mr. Tobin in
Parliament), and by the wording which Canada employed in its declaration
accepting the compulsory jurisdiction of the Court in 1970, when it wished
to exclude the jurisdiction of the Court with regard to titles and measures
relating to the conservation, management or exploitation of [p 696] the
living resources of the sea and the prevention or control of pollution of
the marine environment in marine areas adjacent to the Canadian coast.
309. Canada has given the Court no satisfactory explanation of why the
reservation in subparagraph (d) of the 1994 declaration did not follow the
model provided by the reservation in subparagraph (d) of the 1970
declaration, despite the reference to the latter as a "precedent" in Mr.
Ouellet's statements in the Senate. To say, for example, that States should
not be permitted to make broadly worded reservations does not solve the
point. Nor does the assertion that the reservation in the 1994 subparagraph
(d) is perfect. That may well be the case, but the conclusion then is that
the reservation does not express the same intention or address the same
object as the 1970 reservation does in regard to the conservation,
management or exploitation of the living resources of the sea.
310. It may also be the case that the reservation in the 1994 subparagraph
(d) is functional, concrete, specific or precise in relation to its
subject-matter. But that is not the point; the real question is to determine
the subject-matter of the 1994 reservation. If the subject of the
reservation adopted in 1994 was intended to be the title, jurisdiction or
rights of Canada to take and enforce the measures, why does it not use
wording similar to, or closely following, that of the 1970 reservation
which was ready to hand even though Mr. Ouellet referred to it as a
precedent? The Respondent has failed to answer this question. Its silence
speaks volumes about Canada's real intentions when it deposited its
declaration of 10 May 1994. The Judgment for its part prefers not to
consider the point, whether closely or from a distance. It is clearly more
convenient to change the subject of the dispute.
311. The question is nevertheless important, since the 1994 reservation does
not simply talk of "measures", but of "conservation and management
measures". Thus, it refers the reader not to a "factual" or "neutral"
concept, but to a category of measures which are clearly recognized in the
international law of the sea, that is to say to an objective legal category.
It is not sufficient to say that the measures are what they are; they have
to be, and remain to be, something more than this, namely "conservation and
management measures" an international legal category since the
declaration fails to provide for its own purposes any specific definition
of such conservation and management measures.
*
312. In Chapter III of the present opinion, I summed up the Court's case-law
regarding title as a legal category in the law of the sea. The question of
title can arise in all kinds of matters and contexts, including that of
preliminary proceedings concerning the jurisdiction of the Court. This is
often the case where the Court has to deal with issues raised by way of
defence or objection. Defences of national or exclusive jurisdiction of
States are such a case, but there are other instances too. [p 697]
313. In this connection, we must remember that paragraph 2(c) of the
Canadian declaration of 1994 establishes an objective reservation of
exclusive jurisdiction, and that the principle of reciprocity of
reservations contained in declarations applies to the optional clause
system. Furthermore, Spain has invoked reservation (c) in its Application
and arguments. At all events, the reservation in subparagraph (c) represents
a context for the purpose of interpreting the reservation in subparagraph
(d) of the Canadian declaration, although here again the Judgment remains
utterly silent about the relationship between the two reservations.
What conclusions can be drawn from this for purposes of the present
proceedings? Inasmuch as the Respondent claims exclusive jurisdiction in
regard to its title to take or enforce the measures referred to in the
reservation in subparagraph (d) on the high seas, irrespective of the
vessels concerned, or to interpret those measures exclusively in the light
of its own internal legal order, it follows that the reservation in
subparagraph (c) of the Canadian declaration is applicable. In deciding
this point the Court should, according to the terms of the reservation
itself, do so in accordance with international law. That is what the
declarant State intended in its declaration, even though it now takes refuge
in its purported underlying intention.
314. As far back as 1923, the Permanent Court, in its Advisory Opinion No.
4 concerning an aspect of the dispute between France and Great Britain with
regard to the nationality decrees issued in Tunis and Morocco (French Zone)
on 8 November 1921 and their application to British nationals, had this to
say about the objective reservation of exclusive jurisdiction laid down in
Article 15, paragraph 8, of the League of Nations Covenant:
"It is equally true that the mere fact that one of the parties appeals to
engagements of an international character in order to contest the exclusive
jurisdiction of the other is not enough to render paragraph 8 inapplicable.
But when once it appears that the legal grounds (titres) relied on are such
as to justify the provisional conclusion that they are of juridical
importance for the dispute submitted to the Council, and that the question
whether it is competent for one State to take certain measures is
subordinated to the formation of an opinion with regard to the validity and
construction of these legal grounds (titres), the provisions contained in
paragraph 8 of Article 15 cease to apply and the matter, ceasing to be one
solely within the domestic jurisdiction of the State, enters the domain
governed by international law.
If, in order to reply to a question regarding exclusive jurisdiction, raised
under paragraph 8, it were necessary to give an opinion upon the merits of
the legal grounds (titres) invoked by the Parties in this respect, this
would hardly be in conformity with the system established by the Covenant
for the pacific settlement of international disputes. [p 698]
For the foregoing reasons, the Court holds, contrary to the final
conclusions of the French Government, that it is only called upon to
consider the arguments and legal grounds (titres) advanced by the interested
Governments in so far as is necessary in order to form an opinion upon the
nature of the dispute. While it is obvious that these legal grounds (titres)
and arguments cannot extend either the terms of the request submitted to the
Court by the Council or the competence conferred upon the Court by the
Council's resolution, it is equally clear that the Court must consider them
in order to form an opinion as to the nature of the dispute referred to in
the said resolution with regard to which the Court's opinion has been
requested." (Nationality Decrees Issued in Tunis and Morocco, P. C.I. J.,
Series B, No. 4, p. 26; emphasis added.)
In interpreting the reservation in paragraph 2 (d) of the Canadian
declaration, the majority of the Court has found it more convenient to
refrain from examining the question of Canada's titles to take the measures
in question.
315. The fact is that the Judgment leaves the reader totally in the dark
about the question of Canada's title or absence of title to take and/or
enforce the measures contemplated in the reservation. Why this deliberate
silence? Why specifically avoid giving this question consideration central
though it is to Spain's Application in determining the Court's
jurisdiction in the present case? Indeed, the word dispute is the first word
in the reservation in paragraph 2 (d) of the Canadian declaration which the
Court must interpret, and the subject-matter of the dispute is particularly
decisive to a determination of the issue of the Court's jurisdiction in this
case.
316. In the present case, it is quite clear that Canada's title or absence
of title in international law to take and/or enforce the measures in
question is also a matter of decisive relevance for the present preliminary
proceedings concerning the Court's jurisdiction, whatever the Judgment may
say. It therefore permeates my entire interpretation of the reservation in
subparagraph (d) of the Canadian declaration.
(b) The "vessels fishing" referred to in the reservation
317. The reservation in subparagraph (d) of the declaration concerns
measures taken and enforced by Canada "with respect to vessels fishing" in
the NAFO Regulatory Area. It is therefore confined geographically to that
area. The text says so and the Parties agree. It is an area clearly
delimited by the NAFO Convention of 1978 and it lies outside the Canadian
200-mile limit, that is to say on the high seas.
318. The Spanish Application relates to the entire high seas as a maritime
space subject to its own legal regime, and not just to the NAFO Regulatory
Area. That point should not be overlooked in the decision on the Court's
jurisdiction, since the subject-matter of the dispute referred to [p 699] it
in the Spanish Application concerns not only the Regulations of 3 March 1995
implementing the amended Coastal Fisheries Protection Act, or the boarding
of the Estai three days later (matters which do in fact involve the NAFO
Regulatory Area), but the existence of Canadian legislation which seeks to
ignore Spain's international title to the exclusive exercise of its
jurisdiction over its vessels on the high seas and is also capable of being
extended, on the initiative of Canada alone, so as to encompass areas of the
high seas other than the Regulatory Area.
319. Quite apart from the matter of whether, as a result of a decision by
Canada, its legislation becomes applicable in the future to other areas of
the high seas adjacent to Canada's exclusive maritime zones, there is also
the fact that the Estai, for example, was pursued by Canadian coast-guard
vessels or patrol boats while it was fishing in the NAFO Regulatory Area,
and that this pursuit could have been extended towards other areas of the
high seas lying outside the Regulatory Area. In point of fact, as it stands
at present the Canadian legislation could already, in a particular instance
of pursuit, apply in practice to areas of the high seas situated well
beyond the NAFO Regulatory Area. The Judgment provides no answer to this
question which the Spanish Application raises.
*
320. In May 1994, when the Canadian Parliament debated Bill C-29, the
Canadian Government stated that the measure was aimed at stateless vessels
and those flying flags of convenience. In his statement to the Senate on 12
May 1994, Minister Ouellet described such vessels as pirate vessels.
Addressing Parliament, Minister Tobin moreover expressly excluded Spanish
and Portuguese vessels. And the fact remains that the initial implementing
regulations to Canada's amended Coastal Fisheries Protection Act, those of
25 May 1994, concerned only stateless and flag-of-con-venience vessels. Yet
these were the precisely the circumstances surrounding the deposit of the
declaration of 10 May 1994. It is not acceptable, for purposes of
interpretation under international law of the reservations contained in
subparagraph (d), to take account of the circumstances obtaining in March
1995! So, how do those who hold that the subject-matter of the
interpretation is Canada's purported underlying intention, and not the
actual wording of the reservation contained in subparagraph (d), answer
this question? They do so by claiming that, by means of internal legislative
devices inserted in the Canadian Act, the latter can be made applicable to
other vessels fishing in the NAFO Regulatory Area through the adoption of
regulations (see paragraphs 74-77 of the Judgment). This is true in
Canadian law. But how does this contribute to establishing in international
law Canada's legally material intention for the purposes of interpreting the
reservation contained in subparagraph (d)? [p 700]
321. Moreover, the least that can be said in this regard, notwithstanding
the contrary position taken by the Judgment, is that in May 1994 the
Canadian Ministers' statements to Parliament were equivocal and misleading,
since they appeared to restrict the application of the Canadian legislation
in question to "pirate vessels" alone. The underlying intention evidenced
by the Canadian Ministers was neither plain nor clear. Mr. Tobin himself
referred to Parliament's authority to designate new prescribed classes of
vessels which might subsequently be brought within the terms of the amended
Act (paragraph 77 of the Judgment).
322. The principle of good faith must come fully into play here in relation
to the interpretation of any "underlying" intention on Canada's part. Yet,
as we know, the Judgment quite simply ignores good faith in its
interpretation of the reservation contained in subparagraph (d). For the
Judgment, there is accordingly no inconsistency with the requirements of
conduct in good faith. In this opinion, however, I base my interpretation
of the Canadian reservation on the objective rules and methods of
interpretation, which require that the terms of the instrument be
interpreted in good faith. In any event, whether the interpretation be
objective or subjective, it is unreasonable to conclude, in light of the
supplementary means of interpretation put forward by the Parties, that the
intention expressed in the regulations adopted on 3 March 1995 almost one
year after the declaration under interpretation may be considered as a
circumstance surrounding the deposit of the Canadian declaration of 10 May
1994. For the purposes of interpretation, this intention clearly came into
being far too long after the deposit of the declaration.
*
323. Since it is clear that a subjective interpretation of the underlying
intention of May 1994 does not enable it to achieve its ends regarding the
interpretation of the words "vessels fishing", the Respondent doggedly
insists on a literal interpretation here, going so far as to declare, in
reply to Spain's arguments, that the rules of grammar must be respected!
Canada's interpretation of the passage on the intention of the declarant
State in the Judgment in the Anglo-Iranian Oil Co. case, quoted by it ad
nauseam, was somewhat played down in this context. And what does the
Judgment do? Once again it adopts the Respondent's position, changing its
method of interpretation according to the point to be interpreted.
324. For Canada, as for the Judgment, the words "vessels fishing", in the
reservation contained in subparagraph (d) of the declaration, refer to
vessels fishing in the NAFO Regulatory Area, since this is what the text of
the reservation says. Hence, the statement to the House of Commons on 11 May
1994 by the Minister of Fisheries and Oceans, Mr. Tobin, in which he says,
inter alia, that there are no exceptions, serves only to confirm the
meaning of the text. Yet there is also the statement to the Senate on 12 May
1994 by the Minister of Foreign Affairs and International [p 701] Trade, Mr.
Ouellet, which raises serious doubts as to that interpretation of the text
of the reservation in subparagraph (d). How then do Canada and the Judgment
resolve this aspect of the matter? Quite simply by relying on a few selected
sentences from Mr. Ouellet's statement and forgetting the rest.
325. While the text of the amended Act of 12 May 1994 refers in general to
"foreign fishing vessels" which continue to fish for stocks in the NAFO
Regulatory Area in a manner that undermines the effectiveness of "sound"
conservation and management measures, and in particular the measures taken
under the 1978 NAFO Convention (Memorial of Spain, Annexes, Vol. I, Ann. 14,
p. 70), the implementing Regulations of 25 May 1994 specifically state that
the classes of vessel to which the Regulations apply are vessels without
nationality and foreign fishing vessels flying under the flag of a State
set out in Table III to Section 21 of the Regulations, namely Belize, Cayman
Islands, Honduras, Panama, Saint Vincent and the Grenadines, and Sierra
Leone (ibid., Ann. 17, pp. 297-298). It was only in the Regulations of 3
March 1995 that the Canadian Government (and not Parliament) added to the
above-mentioned classes of foreign fishing vessels "foreign fishing vessels
that fly the flag of any state set out in Table IV to this Section", namely
Portugal and Spain (ibid., Ann. 19, pp. 309 and 311).
326. These facts are conclusive on one point, namely that between May 1994
and March 1995 the amended Act did not apply to Spanish and Portuguese
vessels, nor did it apply to vessels from any other NAFO State. It must also
be said that the legally material intention in this case is that relating to
Canada's declaration of acceptance of the compulsory jurisdiction of the
Court, not the intention of Canadian Ministers and Parliamentarians
concerning the scope of the future amended Act and its possible future
evolution; an evolution which might, moreover, broaden or restrict the
scope of the Act since, following the agreement of April 1995 between
Canada and the European Community, the situation obtaining between May 1994
and March 1995 has been restored. At present the amended Act once again
applies solely to the "pirate" vessels of May 1994. And yet the Canadian
declaration of 10 May 1994 remains the same!
327. Does this mean that the reservation in subparagraph (d) of the 1994
declaration now lacks effectiveness, as Canada would have us believe when it
rejects this or that aspect of Spain's interpretation of the reservation?
This is a question we are entitled to ask, in view of the Respondent's
readiness to rely on effet utile in its interpretation of the reservation.
For Canada has argued that if vessels flying the Spanish or Portuguese flag,
or that of some other State fishing in the NAFO Regulatory Area, were to be
excluded from the scope of the reservation, then the reservation would cease
to have any effet utile. Once again, I have to say, Canada puts forward two
diametrically opposed arguments.
328. The overall intention behind the debates on Bill C-29 in May [p 702]
1994 and on the implementing Regulations of 25 May 1994, although somewhat
obscure, was not, however, that these provisions of Canadian law should
apply to vessels of member States of the European Union fishing in the NAFO
Regulatory Area. For those countries, Canadian diplomacy would be called
into play if need be. The statement to the Senate on 12 May 1994 by the
Minister for Foreign Affairs, Mr. Ouellet, was conclusive in this respect.
Yet it was on 10 May 1994 that Canada deposited its declaration with the
Secretary-General of the United Nations, not in March 1995.
329. Canada's intention in May 1994 was thus far from what was done in March
1995. Yet, as far as the underlying intention is concerned, the only
intention which may be taken into consideration is that underlying the
deposit of the declaration, not some intention which came into existence
after that deposit. It is doubtless in order to avoid this flagrant
contradiction that, at this point, Canada and the Judgment abandon their
general line of argument with regard to the interpretation of the intention
and this time turn to the text of the reservation contained in subparagraph
(d) of Canada's declaration.
*
330. For my part, I interpret Canada's declaration objectively, applying
the rules and methods of interpretation based on the text of the instrument
being interpreted, yet without excluding factors relating to the
determination of the intention in the light of international law and for
purposes which are accepted in international law. In this connection, I note
that the text as such is applicable to all vessels. Canada's underlying
intention is less clear. A reasonable doubt is permitted. It is within the
confines of such doubt that good faith should come into play in the
interpretation.
In any event, in 1995 Canada did not change the language in which it
consented to the Court's compulsory jurisdiction in 1994. It did not avail
itself of the right of amendment which it had reserved in paragraph 3 of the
declaration. Amending its declaration by interpretation after the filing of
Spain's application is compatible neither with the optional clause system,
nor with an interpretation in good faith.
Moreover, in international law an interpretation in good faith cannot
restrict itself to the text of the declaration on some points, and on others
refer either to Canada's underlying intention an intention which,
moreover, apparently changes over the months or to the reasons which
Canada might have had when it made and deposited the declaration of 10 May
1994. A choice has to be made.
*
331. The conclusion that the words "with respect to vessels fishing" in the
reservation contained in subparagraph (d) of the Canadian declara-[p
703]tion apply to all vessels nevertheless has a negative implication for
Canada's argument based on the effectiveness of the reservation, since
"Canadian vessels" therefore also fall within the possible scope of the
reservation.
What does this mean? Quite simply that if one day Canada were unilaterally
to take measures "described" as conservation and management measures in the
NAFO Regulatory Area, but which are in fact measures favouring Canadian
vessels to the detriment of vessels belonging to other States or certain
other States (for example in the allocation of TAC quotas), any resultant
disputes between States would be excluded from Canada's consent to the
jurisdiction to the Court expressed in the 1994 declaration.
332. Canada, on the other hand, remains silent on this possible, by no means
insignificant, effet utile of the words in the reservation "with respect to
vessels fishing". Clearly, interpreting these words literally, Canadian
vessels fishing in the NAFO Regulatory Area would be covered by the
reservation. This conclusion is by no means absurd. For what the reservation
would exclude from the Court's jurisdiction would not be relations between
Canada and Canadian vessels, but relations between Canada and another State
with regard to measures taken or enforced by Canada in respect of Canadian
vessels, which might well discriminate against vessels flying the flag of
another State or run counter to the interest of that State in the fisheries
concerned. If, to this, we then add stateless and flag-of-convenience
vessels, it can easily be seen that the exclu-sion of other vessels from the
reservation contained in subparagraph (d) would in no way deprive the
reservation of effectiveness. In fact, this is the situation which existed
before 3 March 1995 and which has existed since early May 1995, i.e., the
current situation.
(c) The "conservation and management measures" of the reservation and the
failure to define such measures in the declaration
333. As I have already mentioned, Canada could have formulated the
reservation contained in subparagraph (d) of its 1994 declaration by
referring quite simply to "measures taken by Canada . . .". This wording
would then have covered all possible and conceivable measures taken by
Canada. Yet Canada, in the exercise of its sovereignty, did not do so. For
my part, in the context of the interpretation of the reservation, I refuse
to enter into the debate as to why Canada did not do so. This is a matter
for Canada's domestic political choices, as is the fact of making a
declaration accepting the Court's compulsory jurisdiction or not making
such' a declaration. I cannot accept this kind of subjective approach to
interpretation in the context of the optional clause system. It is the
intention expressed in the declaration which I interpret in this opinion.
334. Moreover, we are dealing here with an objective limitation of the [p
704] reservation, one which was specifically sought by the declarant State
and which forms part of the text of the reservation itself. The measures in
the reservation must be "conservation and management measures". We are not
dealing with the reasons for the reservation or even with some underlying
intention, but clearly and simply with an intention expressed in the actual
wording of the text. Moreover, there is no definition direct or indirect
of the expression "conservation and management measures", either in the
reservation in subparagraph (d) or in any other part of the Canadian
declaration; nor is any particular meaning there given to the expression, or
to any of the words used.
335. In the absence of any specific definition direct or indirect
provided by Canada, the expression "conservation and management measures"
used in the reservation in subparagraph (d) can only be interpreted in the
light of general international law. The qualification in the text of the
reservation of the term "measures" by the words "conservation and
management", together with the failure to define this expression in the
declaration itself, reflects the objective intention of the declarant State
to give this term the meaning it has in international law, the legal frame
of reference for declarations under the optional clause system. Moreover,
the application of the rules of interpretation leads to the same conclusion,
since the relevant rules of international law applicable in relations
between the Parties are one of the accepted elements of interpretation
which must be taken into account "together with the context".
336. Furthermore, at the hearings Canada itself emphasized the generic
character of the expression "conservation and management measures" in the
reservation in subparagraph (d) of its declaration, invoking the
jurisprudence of the Aegean Sea Continental Shelf case. It thus recognized,
in the context of these preliminary proceedings, the role of international
law in the interpretation of the expression "conservation and management
measures" in the reservation, since the point at issue in the Aegean Sea
case was the meaning in international law of certain terms embodied in an
international legal instrument. That Judgment interpreted the expression
"territorial status" in accordance with international law and the evolution
it has undergone.
337. Hence, we must look to international law in order to determine whether
the measures taken by Canada in March 1995 against vessels flying the
Spanish flag were "conservation and management measures" within the meaning
of the reservation contained in subparagraph (d) of the Canadian declaration
of 10 May 1994. And we are obliged to do this by virtue of the terms of the
declaration itself and of the rules of interpretation of international law.
*
338. The Judgment itself accepts that the Court must interpret the
reservation in subparagraph (d) of paragraph 2 of the Canadian declaration
by ascertaining the meaning attaching "in the light of international [p 705]
law" to the expression "conservation and management measures" as used in
that reservation (paragraph 69 of the Judgment). It might have been thought
that the Judgment was now finally to fall into line with international law,
yet this was not at all the case. For the following paragraph of the
Judgment states: "According to international law, in order for a measure to
be characterized as a 'conservation and management measure', it is
sufficient that its purpose is to conserve and manage living resources and
that, . . ., it satisfies various technical requirements." (Emphasis added.)
For the Judgment, the authority taking such measures, the maritime areas
affected by them, and/or the way in which they are to be enforced are not
elements belonging to the definition of "conservation and management
measures" in international law. These latter elements are taken into
consideration only for the purpose of determining the legality of such
measures under international law (paragraph 70 of the Judgment).
339. The author of this opinion disagrees totally with this conclusion of
the Judgment. "Conservation and management" measures are defined in
international law by reference to legal criteria and not solely or
exclusively technical ones. The Judgment, on the other hand, belatedly
asserts: "International law thus characterizes 'conservation and management
measures' by reference to factual and scientific criteria" (paragraph 70 of
the Judgment), without however providing evidence of international practice
nor of the opinio juris of States. Here, the Judgment in effect confounds
general international law with the implementing regulations and annexes to
Canada's Coastal Fisheries Protection Act, or even with the domestic
legislation of other countries, which it refers to but without any form of
analysis! It will be seen below that both general international law, as
embodied in the 1982 Convention on the Law of the Sea, and recently
concluded international agreements relating to this Convention take a
different stand: for example, the FAO "Agreement to Promote Compliance with
International Conservation and Management Measures by Fishing Vessels on the
High Seas" of November 1993, and the United Nations "Agreement for the
Implementation of the Provisions of the United Nations Conference on the Law
of the Sea of 10 December 1982 Relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks" of 4 December
1995. I therefore agree entirely with the criticism in other dissenting
opinions of the majority conclusion as to the meaning in international law
of the expression "conservation and management measures" of the living
resources of the high seas. The references in the Judgment to Article 62 of
the 1982 Con-vention on the Law of the Sea to certain other agreements and
conventions and to certain European Union and NAFO texts cannot be accepted
as evidence of international practice, nor as a record of the opinio juris
of States in this matter. [p 706]
340. In reaching its conclusion on the meaning of this concept in
international law and also in the reservation contained in subparagraph
(d) of the Canadian declaration, bearing in mind that the latter is silent
on this point the Judgment once again refers to the question of the
legality of the measures (see paragraph 70). It accepts, however, that the
question of the existence and the content of the concept in international
law is a question of definition, while at the same time maintaining that
whether a particular action covered by the concept violates the normative
requirements of that legal order remains a question of legality. While it is
indeed the definition of the notion in question that must form the basis for
an interpretation of the expression under consideration in these
preliminary proceedings on jurisdiction, it nonetheless often happens as
with the definition of "conservation and management measures" in the
international law of the sea that such definition includes legal criteria,
not merely technical, factual or scientific ones. And it is also the case
that the notion of legality may form an integral part of the definition of a
particular legal concept. In such circumstances, the Court in preliminary
proceedings might well conclude that a given objection does not possess an
exclusively preliminary character. And it is in fact to eliminate this
possibility that the Judgment seeks to exclude any legal criterion from the
elements relating to the existence or content of the notion of
"conservation and management measures", that is to say, from its
definition.
*
341. Let me recapitulate my own views on this issue. Recourse to
international law to interpret the expression "conservation and management
measures" is encouraged in this case by the context of that expression in
the reservation contained in subparagraph (d) of the Canadian declaration,
which tells us that we are dealing here with conservation and management
measures taken by Canada against vessels fishing in the NAFO Regulatory
Area, together with the enforcement of such measures. The context thus
places the interpreter within a specific field of international law, namely
the law of the sea, and, within that field, in the legal rιgime applicable
to a single, precisely defined maritime space, namely the NAFO Regulatory
Area of the high seas.
342. We are not dealing with a reservation which refers to two or more
maritime areas. For example, the reservation contained in subparagraph (d)
does not exclude from the Court's compulsory jurisdiction disputes
concerning conservation and management measures taken by Canada within its
exclusive economic zone. This, too, greatly facilitates the interpreter's
task, since, contrary to what is claimed by Canada and by the Judgment,
conservation and management measures affecting the living resources of the
sea are not defined in the same way in all the maritime areas recognized by
international law. And why is this so? [p 707]
Because in this regard international law takes into account the general
legal regime governing the maritime area concerned, the author of the
measures in question and the nature of the measures adopted.
343. Admittedly, there are conservation and management measures on the high
seas, but they are not defined in the same way as, for example, those
applicable within a State's exclusive economic zone. The conservation and
management of living resources is one of the aims of the law of the sea, a
social value, protected by the international legal order and applicable to
the various recognized maritime areas, but "conservation and management
measures" have neither the same nature nor the same content in all of these
areas, precisely because of the differences in the latter's respective legal
regimes. A measure which international law considers to be a conservation
and management measure within an exclusive economic zone may well not be one
on the high seas. The Judgment disregards what to me is clear and
self-evident, without producing any real evidence of the international
practice of States and of their opinio juris.
344. International law like municipal legal systems is a coherent
system. For example, were a Canadian agency to take a measure not
recognized under Canadian law as a conservation and management measure,
could that measure be described as a conservation and management measure
within that legal system? In these proceedings, Canada says not, for example
in its response to the arguments on the extraterritorial application of its
criminal code or on the use of force. Mutatis mutandis, the same applies in
international law. In defining "conservation and management measures"
affecting the living resources of the sea, international law takes into
account the authority responsible for the measure, the maritime area
concerned, the purpose and nature of the measure and the manner in which it
is enforced.
345. Let us take a few more examples to illustrate the matter. When an
individual is deprived of his liberty by a police officer of a given State
or by a terrorist, does not the capacity or status of the author of that
measure have some role to play, and can this always be described as a
"police measure"? And when the said police officer pursues and arrests an
offender in the territory of a neighbouring State, do such acts still fall
within definition of a "police measure" ? In defining a particular type of
accepted measure, legal systems take into account not merely its factual or
material object, or even its purpose. They also rely for their definition on
other criteria, which are thus equally relevant for purposes of the legal
definition of the measures concerned. International law does the same.
*
346. Let us now examine the Parties' respective interpretations of the
expression "conservation and management measures" in the Canadian [p 708]
reservation in subparagraph (d), beginning with that of the Applicant. In
the first place Spain contends that the conservation and management of
resources is not a matter relevant to the subject of the dispute which it
has brought before the Court, namely Canada's international title to
exercise its jurisdiction on the high seas against Spanish vessels and their
crews. In Spain's view a claim by a coastal State unilaterally to exercise
jurisdiction over the high seas, an international maritime space, or against
foreign vessels on the high seas, cannot shelter behind the pretext of the
conservation and management of resources. The reservation in subparagraph
(d) of the Canadian declaration refers to "conservation and management
measures with respect to vessels fishing" and not to Canada's jurisdiction
or rights on the high seas against other States or against vessels flying
other flags on the high seas.
347. For Spain, the Canadian coastal fisheries protection legislation is a
cover for a claim to extend its sovereignty over the international space of
the high seas, to the detriment of the rights of other sovereign States,
even to the extent of enforcing its criminal law outside its territory and
authorizing the use of force.
348. For Spain, the legal regime of the high seas precludes the possession
by Canada of an international title allowing it to exercise jurisdiction
against Spanish vessels on the high seas. No such title can derive from the
general law of the sea or from the 1978 NAFO Convention, and there is no
bilateral agreement between Spain and Canada allowing such Canadian
activities against Spanish vessels in international waters. True, Canada
relies on its national legislation, but this is not opposable to other
States, including Spain, since it is not based on a title valid in
inter-national law.
349. Spain also points out that the text of the reservation in subparagraph
(d) excludes the compulsory jurisdiction of the Court in respect of a single
category of measures: "conservation and management measures". However,
Spain does not accept that this expression may be taken to include other
acts lawful or unlawful, or other possible categories of measures, for
example "enforcement measures".
350. Spain also considers that, being formulated in terms of an objective
category not otherwise defined in the declaration (for example by reference
to Canadian legislation), the measures concerned must be genuine
"conservation and management measures" in international law in order to fall
within the scope of the reservation in subparagraph (d). From the standpoint
of international law and international practice, in Spain's view the various
measures taken and enforced by Canada in this case were not true
"conservation and management measures". Consequently they are not covered by
the reservation in subparagraph (d). They merely constitute acts, indeed
internationally unlawful acts. [p 709]
351. Canada's amended Coastal Fisheries Protection Act, with its claim that
Canadian jurisdiction may be exercised against foreign vessels on the high
seas, the extension of Canadian criminal law to the crews of foreign vessels
on the high seas, and the authorization of the use of force against such
crews and vessels cannot be described as a "conservation and management
measure" in the international law of the high seas. Even Article 73 of the
1982 Convention on the Law of the Sea, concerning the enforcement of the
laws and regulations of the coastal State in its exclusive economic zone,
does not envisage the enforcement of criminal law against foreign vessels
and their crews in that zone.
352. Spain draws two main conclusions from the use of the expression
"conservation and management measures" in the text of the reservation in
subparagraph 2 (d) of the Canadian declaration: (a) the effet utile of the
reservation is more limited than Canada claims; (b) the reservation is not
capable of being applied to the dispute which Spain has brought before the
Court as a result of the events of March 1995. Had Canada's intention in
1994 been as it claimed in these preliminary proceedings, then, in Spain's
view, Canada would have been inconsistent or mistaken in the wording of its
reservation, since, on an objective view, the reservation cannot apply to
events such as those of March/April 1995. The reservation was not capable
of being applied to those events. Its own text would prevent this. Counsel
for Spain described the reservation as lame. Canada must now take
responsibility for the consequences of its actions in 1994, when it drafted
and deposited its declaration. It is not for other declarant States, such as
Spain, to bear the brunt of consequences resulting from action by Canada
alone.
353. As to Canada's insistence on the content or factual object of the
measures as the decisive criterion for interpreting the expression
"conservation and management measures", Spain has pointed out that the
Canadian position ignored the principle of integrality in the
interpretation of the declaration, since the instrument which was the
subject of the interpretation was the declaration and not merely the
reservation in subparagraph (d).In other words, the reservation cannot be
interpreted without regard for the declaration as a whole, for the
statements in 1994 by the relevant Ministers during the parliamentary
debates on Bill C-29 (references to so-called "pirate" vessels), and to the
subject of the dispute brought before the Court by Spain (Canada's "title").
354. Lastly, for Spain, legal categories cannot be arbitrary, and any
capacity for evolution which they may possess must not be confused with
volatility in regard to the meaning and scope of the terms employed. Terms,
including generic terms, adapt themselves to circumstances, but they cannot
change the nature of the legal categories concerned. Thus any generic
character claimed by Canada for the expression in the reservation cannot
turn that reservation into a black hole, all the more so in [p 710] that the
measures taken by Canada in March 1995 were not even "con-servation and
management measures" under the NAFO Convention.
*
355. On the basis that the word "measures" is a broad term encompassing all
kinds of acts, including legislative acts done with a specific aim or
purpose in view, Canada has claimed a broad, all-encompassing meaning for
the words "conservation and management" in the reserva-tion contained in
subparagraph (d). It is said that these words are not subject to any
particular restriction, except that the measures must clearly concern
fisheries resources and their rational exploitation. The qualifying terms
"conservation and management" are said to cover all measures taken by the
Canadian State (whether legislative, regulatory or administrative) in
respect of the living resources of the sea (protection of resources,
conservation properly so-called, management of fisheries).
356. This broad conception of the expression "conservation and management
measures" in the reservation in subparagraph (d) leads Canada in practice to
equate such measures to some extent with measures for or concerning
conservation and management. For Canada, a measure is a conservation and
management measure if it has been devised for the purpose of conserving and
managing fisheries, or if it might be concluded that, by reason of its
content or object, the measure concerns the conservation and management of
fisheries. The measures taken by Canada are said to be not at all unusual in
the conservation and management of fisheries and to be found both in
international agreements and in national legislation on fisheries, making
them "conservation and management measures" for the purposes of the
reservation in subparagraph (d). It is claimed that, in effect, it is the
factual content and subject, and the aim pursued, that are the elements to
be taken into consideration in defining the "conservation and management
measures" of the reservation.
Canada has, however, accepted that the expression "conservation and
management measures" in the reservation refers to a generic category of
measures, one moreover which might be subject to future change, after
criticizing Spain for restricting the scope of the expression to what was
done in the past. Canada also spoke of the "nature" of the measures
concerned.
357. Canada also contends that the expression "conservation and management
measures" in the reservation in subparagraph (d) encompasses both measures
which are in conformity with international law and those which are contrary
to it, since so it claims a measure is a measure whether it be lawful or
not (see, for example, CR 98/12, pp. 1114, 16). A measure, even if it is
unlawful, is a conservation and management measure if it concerns
conservation and management, for the reservation does not speak of
authorized measures or internationally lawful measures or even of measures
taken pursuant to a valid title (there is an [p 711] attempt here to
overturn the rule of interpretation that legal instruments are presumed to
be lawful if nothing is said in the instrument under interpretation, a rule
I have already mentioned in this opinion). Thus, according to Canada,
Spain's contention that the measures cannot be considered to be
"conservation and management measures" in the absence of a title is
contradicted by the wording of the Canadian reservation.
358. In Canada's view, the existence or lack of title, and the legality or
illegality of the measures taken, provide no answer to the question whether
the reservation is applicable in this case, since this is a question for the
Court to deal with at the merits stage. According to Canada, it would be
absurd to deal with the merits before jurisdiction. This argument by Canada
is only a partial response to the Spanish thesis, since this is based not
only on the illegality of the measures taken by Canada but also on the
contention that, in terms of the international law of the high seas, they
cannot exist as "conservation and management measures".
*
359. It is quite clear that, in its arguments on the definition of the
expression, Canada sought to overcome the considerable obstacle represented
in view of the wording of the reservation by the legal regime applicable
to the high seas. It was for this reason that counsel for Canada found
themselves obliged to repeat again and again that it was the content or the
factual object of the measures which was important rather than legal regimes
or categories. In the verbatim records of the hearings, for example, we read
that the measures taken and enforced in 1995 against Spanish vessels were
quite ordinary conservation and management measures except for the fact
that they were applied on the high seas or, further, that the only thing
that made them different is where Canada applied them. Hence there is an
element which distinguishes the said measures of 1995 from ordinary
conservation and management measures, and Canada does accept this, albeit
discreetly.
360. Having accepted the inevitable, Canada did its best to minimize the
effects of this admission as regards the interpretation of the expression
"conservation and management measures" in the reservation in subparagraph
(d). It was at this point that it accused Spain of confusing what was
essential and what was merely incidental. The geographical area or the place
of enforcement, even the authority responsible for the measure, were said
not to appertain to the essence of conservation and management measures.
They were thus mere incidental elements. The Judgment follows this Canadian
argument almost word for word (see paragraph 338 of this opinion). The
distinction made by the majority between the "concept" and the "essence of
the concept" (or the "[essential] characteristics of the concept") has been
lifted from Canada's oral arguments and not from international law. [p 712]
361. For Canada, the legal regime governing the maritime area in which the
measures apply, the authority taking the measures, those affected by the
measures, or the way in which the measures are enforced are all said to be
unimportant in defining the "conservation and management measures" referred
to in the reservation. Yet one has only to read the 1982 Convention on the
Law of the Sea (or the other agreements referred to above) to be convinced
otherwise. But for Canada and for the Judgment, legal criteria are not to be
taken into account for purposes of the interpretation and application of the
reservation in subparagraph (d). Accordingly to counsel for Canada, they are
not "sufficiently objective elements"! For Canada and for the Judgment,
whether the measures are applied inside or outside the 200-mile limit is
accordingly of no importance, for the purposes of interpreting the
expression "conservation and management measures" in the reservation.
362. However, it has to be said that the reservation in subparagraph (d) of
the Canadian declaration in no way defines the expression "conservation and
management measures" by reference to the content or factual object of the
measures taken or enforced by Canada. These notions are found only in the
arguments put forward by Canada in these preliminary proceedings. Thus
Canada characterizes the amended Act and its implementing regulations as
conservation and management measures, on the basis of arguments concerning
their content or factual object and their purpose. However, these words are
not in the text of the reservation contained in the declaration, nor can
they be found in the supplementary means of interpretation of the
declaration submitted by the Parties to the Court. Nowhere in the records of
the parliamentary debates on Bill C-29 could I find any definition by those
responsible of the expression "con-servation and management measures" as
used in the reservation in subparagraph (d). Canada has admitted that the
amended Coastal Fisheries Protection Act provides penalties for violations
of the Act and that it contains provisions for the enforcement of Canadian
criminal law within the NAFO Regulatory Area, although it is claimed that
such provisions are strictly limited to cases where offences are committed
in the course of enforcing this legislation. Hence, being directly linked to
the enforcement of conservation and management measures taken by Canada, the
provisions concerned would accordingly be covered by the reservation.
363. The initial Canadian arguments about the definition of the measures
specified in the reservation in subparagraph (d) were to shift their ground
during the oral phase. At the hearings, counsel for Canada sought more
objective terms of reference in order to show that the measures taken and
enforced by Canada in March 1995 against Spanish vessels in the NAFO
Regulatory Area really were "conservation and management measures" for
purposes of the interpretation of the reservation. Thus various
subparagraphs of Article 62, paragraph 4, of the 1982 Convention on the Law
of the Sea were mentioned (as also in the Judgment) in support of the
contention that the measures taken against the Spanish vessels measures
set out in Table V of the Regulations of 3 March [p 713] 1995 were
conservation and management measures. This provision relates of course to
the exclusive economic zone and not to the high seas, as do Articles 61 and
73 of the Convention, which counsel for Canada also mentioned. They further
pointed out that the 1995 Agreement on Straddling Stocks uses the expression
"conservation and management measures", that the entire Agreement concerns
the high seas and that the NAFO conservation and management measures apply
in an area of the high seas. But they overlooked the essential point, namely
that these are measures applied in areas of the high seas pursuant to
international agreements concluded between the States concernedl This is a
far cry from the measures taken and enforced by Canada in 1995 against
vessels on the high seas flying the Spanish flag. The majority set
themselves to putting the finishing touches to Canada's endeavours by means
of additional research which produced nothing new, but which the Judgment
presents as though it were genuine evidence of the international practice of
States and their opinio juris in regard to the definition of "conservation
and management measures".
364. Finally, I should mention one further Canadian ambiguity of this kind,
which relates to Canada's position in the present proceedings as regards the
1978 NAFO Convention and its regime. Here we have treaty commitments by
Canada applicable to the area of the high seas in which the March/April 1995
events took place. Yet counsel for Canada nevertheless objected to the
"conservation and management measures" of the reservation in subparagraph
(d) being defined by reference to the NAFO Convention, despite the
references in the amended Coastal Fisheries Protection Act to NAFO and to
the measures adopted by that body. Is it that these provisions do not form
part of the integrity of the legislation which, according to Mr. Ouellet,
the reservation was designed to protect?
*
365. What are the meaning and the scope of the expression "conservation and
management measures" in today's international law of the high seas? To
answer this question, we must turn to certain principles of the new legal
order of the sea which States themselves created at the Third United Nations
Conference on the Law of the Sea, by signing the United Nations Convention
on the Law of the Sea of 10 December 1982. It is this Convention which gave
formal expression to the most recent general principles of conservation and
management of the living resources of the high seas.
366. The Court's case-law has confirmed on a number of occasions and in
varying contexts that the 1982 Convention reflects in general the practice
of States in present-day international relations concerning the law of the
sea, as well as their opinio juris in this respect. Moreover, Canada's
declaration was deposited on 10 May 1994, that is, approxi-[p 714]mately 12
years after the signature of the Convention on the Law of the Sea, and
Canada was among the most active States at the Third Conference. What is
more, by virtue of the new legal order of the sea accepted by Spain and
other States, Canada has a 200-mile exclusive economic zone and possesses
other rights as a coastal State. During the present incidental proceedings,
both Spain and Canada cited provisions of the 1982 Convention on the Law of
the Sea in support of their respective arguments on the interpretation of
the reservation in subparagraph (d) of the Canadian declaration.
367. Today, as in the past, international law proclaims the freedom of the
high seas and enjoins that no State may validly purport to subject any part
of the high seas to its sovereignty. This freedom of the high seas gives
States a whole series of rights, including freedom of navigation and freedom
of fishing. Freedom of the high seas is exercised under the conditions laid
down by the provisions of the 1982 Convention and other rules of
international law; that is to say, it is not exercised under conditions
stipulated in the national legislation of any State whatsoever. Furthermore,
every State must exercise the freedoms conferred on it by the freedom of the
high seas with due regard for the interests which that freedom implies for
other States (Articles 87 and 89 of the 1982 Convention).
368. Conscious of the need to protect all the rights and interests which the
various recognized maritime spaces involve, international law even requires
that the "laws and regulations of the coastal State" in regard to
conservation applicable in its own exclusive economic zone shall be
consistent with the 1982 Convention on the Law of the Sea (Art. 62, para.
4). Thus the nature of "conservation and management measures" is far from
indifferent either to their author or to the general regime governing the
maritime space in which they are intended to operate. To assert otherwise,
as the Judgment does, seems to me to conflict with the law of the sea. What
is more, the so-called "technical" or "factual" meaning which the Judgment
ascribes to the measures specified in the reservation in subparagraph (d)
cannot be ascertained by interpreting the text of the reservation. To reach
such a conclusion, the interpreter would have to qualify the text by the
addition of words which are not there and also, in my view, disregard
international law in interpreting the reservation.
369. Every State has the right to sail ships flying its flag on the high
seas. Ships have the nationality of the State whose flag they are entitled
to fly. There must exist a genuine link between the State and the ship, and
every State must fix the conditions for the granting of its nationality to
ships, for the registration of ships in its territory and for the right to
fly its flag. Ships must sail under the flag of one State only and, save in
exceptional cases expressly provided for in international treaties or in the
1982 Convention, are subject to its exclusive jurisdiction on the high seas.
A ship which sails under the flags of two or more States, using them
according to convenience, may not, however, claim any of the nationali-[p
715] ties in question with respect to any other State, and may be
assimilated to a ship without nationality (Articles 90, 91 and 92 of the
1982 Convention).
370. Every State must effectively exercise its jurisdiction and control over
ships flying its flag and, in taking the necessary measures in relation to
such ships, must conform to generally accepted international regulations,
procedures and practices and take any steps which may be necessary to
secure their observance. A State which has clear grounds to believe that
proper jurisdiction and control with respect to a ship on the high seas have
not been exercised may report the facts to the flag State. Upon receiving
such a report the flag State must investigate the matter and, if
appropriate, take any action necessary to remedy the situation. Each State
must cause an enquiry to be held into every instance of conduct at sea
involving a ship flying its flag and causing loss of life or serious injury
to nationals of another State or serious damage to ships or installations of
another State or to the marine environment. The flag State and the other
State shall co-operate in the conduct of the enquiry (Article 94 of the 1982
Convention). Even in the event of a collision or any other incident of
navigation concerning a ship on the high seas, the penal or disciplinary
jurisdiction is that of the State of which the person concerned is a
national (Article 97 of the 1982 Convention).
*
371. The body of general provisions constituting the international legal
regime applicable to the high seas is based on two fundamental principles:
that of the exclusive jurisdiction of the flag State over its vessels on
the high seas and that of co-operation among States on a series of matters
of common interest concerning the high seas (assistance at sea; transport of
slaves; repression of piracy; illicit traffic in narcotic drugs;
unauthorized broadcasting; protection of submarine cables and pipelines).
The seizure, right of visit and right of hot pursuit of a vessel on the high
seas by a State other than the flag State are thus exceptions which are
strictly regulated by the general international law of the high seas
(Articles 105, 110 and 111 of the 1982 Convention).
372. The same principles and general considerations govern the conservation
and management of the living resources of the high seas. In the new legal
order of the sea, freedom of fishing is of course subject to the conditions
laid down in Part VII, section 2, of the 1982 Convention (Arts. 116-120),
including States' treaty obligations and the rights and duties, as well as
the interests, of coastal States laid down in Articles 63-67 of the
Convention with regard to the exclusive economic zone, and especially in
Article 63, paragraph 2, on straddling stocks. But what is the duty of
States in these matters in general? To take, or to co-operate with other [p
716] States in taking, such measures for their respective nationals as may
be necessary for the conservation of the living resources of the high seas
(Article 117 of the 1982 Convention).
373. By their nature, measures for the conservation and management of the
living resources of the high seas are representative of that general duty.
Thus Article 118 of the Convention provides that:
"States whose nationals exploit identical living resources, or different
living resources in the same area, shall enter into negotiations with a view
to taking the measures necessary for the conservation of the living
resources concerned. They shall, as appropriate, co-operate to establish
subregional or regional fisheries organizations to this end."
NAFO is precisely such an organization.
374. Article 119 of the 1982 Convention lays down detailed rules on the
organization of co-operation among States concerned in the conservation and
management of the resources of the high seas, including rules concerning the
allowable catch and other conservation measures, as well as objective
criteria, including scientific criteria, on which such measures are to be
based. In addition, the Article ends with a paragraph 3 which is of the
utmost interest in connection with the principle of non-discrimination. The
paragraph is worded as follows:
"States concerned shall ensure that conservation measures and their
implementation do not discriminate in form or in fact against the fishermen
of any State."
The requirement of non-discrimination in "conservation and management
measures" taken in respect of an area or region of the high seas is not of
course new. It already exists in the 1958 Convention on Fishing and
Conservation of the Living Resources of the High Seas (see Articles 5 and 7
of the Convention). It is a requirement which necessarily flows from the
regime of res communis governing the high seas.
*
375. Two recently concluded agreements specifically concerning the
conservation and management of the living resources of the high seas define
conservation and management measures with due regard for legal criteria, and
in particular the pertinent rules of the 1982 United Nations Convention on
the Law of the Sea. For example under Article 1 (Definitions), paragraph
(b), of the FAO Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels on the High Seas,
for the purposes of the Agreement:
"'international conservation and management measures' means [p 717]measures
to conserve or manage one or more species of living marine resources that
are adopted and applied in accordance with the relevant rules of
international law as reflected in the 1982 United Nations Convention on the
Law of the Sea. Such measures may be adopted either by global, regional or
subregional fisheries organizations subject to the rights and obligations
of their members, or by treaties or other international agreements."
(Emphasis added.)
Canada accepted this agreement on 20 May 1994 (ten days after the deposit of
its declaration), and the European Community on 6 August 1996.
376. The Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks of 4 December 1995 is also perfectly in line, as regards the
definition of "conservation and management measures", with the pertinent
provisions of the international law of the sea as codified in the 1982
Convention on the Law of the Sea. Although the Agreement is not yet in
force, the Parties referred to it in the present inci-dental proceedings in
certain contexts and the Judgment does so as well.
377. The Judgment contends that Article I (1) (b) of the 1995 Agreement
cited above does nothing to invalidate its conclusion regarding the meaning
of "conservation and management measures" because, it says, that provision
does not itself define conservation and management measures (any more than
the FAO Agreement of 1993). I take precisely the opposite view, since I read
in this provision that, for the purposes of the 1995 Agreement:
"'conservation and management measures' means measures to conserve and
manage one or more species of living marine resources that are adopted and
applied consistent with the relevant rules of international law as reflected
in the Convention [on the Law of the Sea of 1982] and this Agreement"
(A/CONF. 164/37; emphasis added).
That is wholly compatible with the definition of those measures which
results from the general international law of the sea and which this opinion
upholds. The definition in the 1995 Agreement demonstrates just as much as
the 1982 Convention on the Law of the Sea (and the 1993 FAO Agreement) that,
in current international law, the criterion of compatibility of the
measures in question with the pertinent rules of international law
applicable to the maritime space concerned is an element which is a sine qua
non of the definition of "conservation and manage-ment measures" for the
living resources of the sea which the international legal order
contemplates. Moreover, Article 4 of the 1995 Agreement provides that: [p
718]
"Nothing in [the 1995] Agreement shall prejudice the rights, jurisdiction
and duties of States under the [1982] Convention. This Agreement shall be
interpreted and applied in the context of and in a manner consistent with
the [1982] Convention."
378. Furthermore, Article 5 of the 1995 Agreement, entitled "General
principles", states that in order to conserve and manage the stocks covered
by the Agreement "coastal States and States fishing on the high seas shall,
in giving effect to their duty to co-operate in accordance with the [1982]
Convention: (a) adopt measures . . ." (emphasis added); and Article 3 makes
the distinction which the international law of the sea requires between, on
the one hand, "areas under national jurisdiction" and, on the other, "areas
beyond national jurisdiction". Furthermore, in both the 1995 Agreement and
the 1982 Convention, no "conservation and management measures" can be taken
by a coastal State on the high seas against vessels in that maritime space
flying the flag of another State except by agreement between the States
concerned.
379. The majority does its best in paragraph 70 of the Judgment to evade the
conclusions stated above regarding the meaning of "conservation and
management measures" on the high seas as understood in general
international law and international agreements; however, legal definitions
are hard to kill. No considerations of the kind evoked justify the Judgment
in altering or overturning the existing positive international law on this
subject. The author of the measures, the maritime space they concern, their
nature and so on and not just their content or factual object are all
elements inherent in the very definition of "conservation and management
measures" in respect of the living resources of the sea under international
law, and hence of the measures referred to in the reservation contained in
subparagraph (d) of the Canadian declaration. Canada itself has admitted, in
the present preliminary proceedings, that the conservation and management
measures contemplated in the reservation are not necessarily the same as
those stated by it to be measures of that kind. For Canada, this was a way
out of its difficulty, leaving it to the Court to speak on its behalf. And,
once again, the majority followed.
However, the Judgment's demonstration of what it considers to be the meaning
and scope of the expression "conservation and management measures" in
international law is totally inadequate. This is another serious weakness
of the Judgment, one which could have consequences extending well beyond the
present preliminary proceedings. In effect, in order to reach the conclusion
that the Court has no jurisdiction, the majority have, one might say,
adjusted the international law on the subject to suit Canada's purported
underlying intention or purported reasons for the reservation in
subparagraph (d) of its declaration; for, as paragraph 71 of the Judgment
expressly states, "any other interpretation of that expression would deprive
the reservation of its intended effect"!
* [p 719]
380. In the present incidental phase, it is not a question of the Court
adjudicating upon a particular aspect of illegality or responsibility in
connection with the merits of the case, or on the defences which Canada
might in due course plead on the merits, but quite simply of it
interpret-ing the declaration by virtue of its power to determine its own
jurisdiction (Article 36, paragraph 6, of the Statute), since Canada
challenges the Court's jurisdiction in reliance on the reservation in
subparagraph (d) of its declaration. It is thus in connection with the
subject of the present incidental proceedings that I conclude, in the light
of the above considerations, that:
(a) the meaning to be given to the expression "conservation and management
measures" in the reservation in paragraph 2 (d) of the Canadian declaration,
because it is the meaning which it bears under the general international law
of the high seas, cannot be determined solely by reference to the content
or the factual or material object of those measures, which itself has to be
ascertained in light of the particular circumstances of the caseFN4;
---------------------------------------------------------------------------------------------------------------------
FN4
I mentioned earlier that the measures taken and enforced by Canada in the
circumstances of the present case in March 1995 against Spanish and
Portuguese vessels fishing in the NAFO Regulatory Area were not directed
towards "conservation", their factual object and purpose being to procure a
change in the position of the European Union and the attribution by it to
Canada of certain preferential rights in that area.
---------------------------------------------------------------------------------------------------------------------
(b) the measures concerned in the present case, which Canada took on the
basis of its internal legislation, are not "conservation and management
measures" under the general international law of the high seas: they do not
exist as such in the international law governing that maritime space.
381. The latter conclusion is based on considerations which are perfectly
compatible with the exercise by the Court of its power to determine its own
jurisdiction. The measures taken in the present case by Canada are not
"conservation and management measures" under the general law of the high
seas nor therefore under the terms of the reservation in subparagraph (d)
for very simple reasons:
(a) they were taken in regard to vessels on the high seas having a genuine
nationality and flag, not of Canada but of other sovereign States such as
Spain;
(b) they were taken unilaterally, regardless of the principle of
co-operation between the States concerned, and were not the outcome of any
negotiations or any understanding or agreement between those States
(including Spain);
(c) they were taken despite the pertinent treaty functions exercised by NAFO
in regard to vessels of States fishing in its Regulatory Area (including
Canada and Spain); and, in addition, [p 720]
(d) in this particular case they constituted an act of discrimination
against Spain and Portugal and Spanish and Portuguese fishermen.
The discriminatory nature of the measures taken by Canada in March/ April
1995 against Spanish vessels is a proven fact in the present incidental
proceedings, since it is embodied in the Canadian Coastal Fisheries
Protection Regulations of 3 March 1995, which are before the Court (Memorial
of Spain, Annexes, Vol. I, Ann. 19, p. 311). This fact alone makes it quite
impossible legally for the measures taken in the present case by Canada to
enjoy consideration in international law as "conservation and management
measures" for the living resources of the high seas, and thus, for the
reasons indicated, precludes them from being accorded that meaning in the
interpretation of the reservation in paragraph 2 (d) of the Canadian
declaration.
*
382. These conclusions can be no more or no less restrictive than the actual
text of the reservation in subparagraph (d) of the Canadian declaration of
10 May 1994. Nor do they prevent the expression "conservation and
management measures" from being interpreted in a given dec-laration as
having a different meaning or a different scope; for example, that contained
in a national law or regulations. That might perfectly well happen, since
consent to the Court's jurisdiction is not to be confused with the
principles and rules of the pertinent international law. And it could also
happen that the Court is required to give effect to a jurisdictional
instrument without reference to international law because of the terms
themselves in which the State concerned gave its consent to jurisdiction
(see, for example, paragraphs 66-68 of the Judgment). But neither of these
eventualities is at issue here, since the declarant State did not, either
directly or indirectly, give any particular definition of the measures in
question, either in the reservation or in the declaration as a whole or
elsewhere, before the proceedings were instituted.
383. The principal ground invoked in the Judgment for its finding on the
present point would seem to be no more than a single and supplementary
element of interpretation, namely the reference which Mr. Ouellet made in
his statement in the Senate to the protection of the integrity of Canadian
legislation; the fact that the Canadian Minister of Foreign Affairs and
International Trade emphasized other factors as well, such as the sound
legal basis of that legislation, is overlooked. If this kind of
supplementary means of interpretation is adduced as proof of an underlying
intention, it should at least be taken in its entirety. Nor should we forget
Mr. Ouellet's reference to what he called "pirate" vessels, or the precedent
represented by the Canadian declaration of 1970.
384. I agree that the question of the "conformity" of an act with inter-[p
721] national law is one of "legality" (paragraph 68 of the Judgment), and
therefore a matter for the merits. Of course the word is being used in a
double sense the reference being to the "legality" or "illegality" of the
act concerned and the present proceedings are indeed only preliminary
incidental proceedings. However, the separate question of the "existence" or
"non-existence" of the measure concerned its reality as a "conservation
and management measure" under international law (since it is not defined in
the text of the declaration) is not a question going to the merits. I do
not consider that the measures with which the Applicant charges the
Respondent in the present case, and which the Respondent admits, have any
existence, any legal reality in the general international law of the sea as
"conservation and management measures", and therefore they cannot, in my
view, be characterized in the particular circumstances of this case as
measures of "conservation and management", which is how the Judgment
describes them for the purpose of interpreting the reservation in paragraph
2 (d) of the Canadian declaration.
385. My purpose in taking account, in the present context, of the
international law of the sea has nothing to do with the merits of the case,
namely the conformity or non-conformity of the Canadian measures with that
law. The interpretation of the reservation and its silence on the sub-ject
are my sole reason for having turned to general international law, where I
find that that law does not recognize measures such as those taken by Canada
in this case in 1995 against Spanish vessels in the NAFO Regulatory Area as
"conservation and management measures".
386. General international law also tells us that the content or factual
object of the measures is not the only criterion to be taken into account in
determining the existence of a "conservation and management measure" under
international law. Other criteria come into play here, namely the maritime
space concerned, whether or not the measures are unilateral, whether or not
they are discriminatory, whether or not the specific measures taken aim at
conservation, and so on. The FAO and United Nations Agreements referred to
above simply serve to confirm the general international law of the sea on
this subject.
387. I cannot therefore accept the conclusions of the Judgment on this issue
as representing a natural and reasonable manner of construing the text of
the reservation in the context of the declaration, having regard also to the
intention of the declarant State as reflected in the supplementary means of
interpretation submitted to the Court by the Parties.
(d) The words "the enforcement of such measures" in the reservation and the
silence on the use of force in respect of the matters reserved by the
declaration
388. Having concluded that the "measures" taken by Canada in the present
instance were not "conservation and management measures" within the meaning
of paragraph 2 (d) of the Canadian declaration of [p 722] 10 May 1994, it is
clear to the author of this opinion that the enforcement of such measures by
Canada is, too, an aspect of the dispute which does not fall within the
scope of the reservation. However, since the Judgment gives a different
interpretation of the expression "conservation and management measures", I
must also state my view on the interpretation of the words "the enforcement
of such measures" as used in the Canadian reservation, that is to say,
independently of the interpretation of the measures taken by Canada in the
present case and of their characterization as conservation and management
measures under international law.
389. In interpreting the words "the enforcement of such measures", the first
thing to bear in mind is the distinction between "measures" and their
"enforcement". The reservation in paragraph 2 (d) of the Canadian
declaration deals with only a single category of measures, namely the
"conservation and management measures" taken by Canada in regard to vessels
fishing in the NAFO Regulatory Area. In the reservation, "enforcement" is
not a measure or a separate category of measures; it simply relates to the
implementation of the "conservation and management measures" in question.
The Judgment on the other hand, aligning itself yet again with the Canadian
position, arrives at the opposite conclusion, talking of "measures in
enforcement of conservation" (see, for example, paragraph 82 of the
Judgment).
390. The author of this opinion, however, believes that the word
"enforcement" cannot be interpreted in the reservation in subparagraph (d)
independently of the "conservation and management measures" which govern it.
Without the existence of this latter category of measures, there can be no
"enforcement" within the meaning of the reservation to the Canadian
declaration. Accordingly, once it is established that the measures taken by
Canada in the case are of a different kind, then the enforcement of that
different kind of measure does not fall within the scope of the reservation,
whether as the "taking" or as the "enforcement" of measures.
*
391. Spain stressed on a number of occasions the distinction which I have
drawn above. This distinction is what underlies its second main argument in
favour of the Court's jurisdiction in this case, namely that the use of
force by Canada against vessels on the high seas flying the Spanish flag
cannot reasonably be regarded as the enforcement of measures relating to
the conservation and management of fish stocks. In Spain's view, since
international law has prohibited the use of force, its use cannot be covered
by the reservation in subparagraph (d), bearing in mind that the text of
Canada's reservation and declaration as a whole is silent on the use of
force in relation to the matters excluded by the reservations contained in
the declaration.
392. In Spain's view, the use of force is clearly not covered by the
reservation in subparagraph (d), because the reservation does not mention
[p 723] it, and because the use of force for which the Canadian legislation
provides in respect of foreign vessels on the high seas constitutes conduct
contrary to international law, that being the law which governs the
interpretation of declarations made under the optional clause system
establishing the Court's jurisdiction. Thus the boarding of the Estai by
force on the high seas on 9 March 1995 was not in itself an act of
enforcement of a conservation and management measure under international
law, but something altogether different.
393. According to Spain, the force whose use is prohibited by international
law is not confined to actual armed aggression. What is prohibited is the
use of armed force by a State against another State, whether in relation to
territory, persons or objects, including those on the high seas, falling
under the sovereignty or exclusive jurisdiction of that latter State. The
use of force on the high seas against a vessel flying the flag of another
State is, Spain maintains, contrary to the United Nations Charter, to
general international law and to the law of the high seas and, as such,
cannot be covered by an interpretation of the reservation in paragraph 1(d)
of the Canadian declaration unless the text of the declaration as a whole,
or of the reservation relied on by Canada, makes explicit reference to it.
394. As far as the facts are concerned, Spain placed particular emphasis on
the provision in Canada's current relevant legislation for the use of force
against vessels flying the flag of another State on the high seas; on the
magnitude of the 1995 conflict; on the gravity of the incidents; on the
degree of force employed by the Canadian patrol boats in their pursuit and
boarding of the Estai some 245 miles from the Canadian coast; in the
harassment, over the following days, of other Spanish fishing vessels in the
NAFO Regulatory Area; and on the despatch to the area of units of the
Spanish Navy.
395. As regards the Canadian legislation, Spain laid particular stress on
the extension of Canadian criminal law to the NAFO Regulatory Area,
permitting Canadian peace officers to use force on the high seas against
foreign vessels at the risk of causing death or serious bodily harm. Spain
thus rejected the Canadian arguments in this regard that the use of force
was intended to be confined to serious cases and to situations of
self-defence. Spain also emphasized the fact that the Canadian legislation
complained of, and the theatre of the Canadian actions, concerned the high
seas (the NAFO Regulatory Area) and that relations between States on the
high seas are governed by the international law of the high seas, and not by
the rules of the law of the sea relating to coastal States' exclusive
economic zones, or by their national legislation. It thus rejected the
notion that the legal regime governing national maritime areas could be
applied to the high seas so as to justify the exercise of certain powers of
coercion of the coastal State against foreign vessels on the high seas.
396. In Spain's view, Canada has no international title to use force [p 724]
against vessels flying the Spanish flag in the NAFO Regulatory Area, or in
any other area of the high seas. In this connection, Spain asked where was
the practice, whether customary, traditional or well known, that permitted
the use of force on the high seas against foreign vessels, in defiance of
the restrictive provisions imposed by Articles 110 and 111 of the 1982
United Nations Convention on the Law of the Sea. Finally, it reminded the
Court that the 1995 United Nations Agreement on Straddling Stocks is not in
force and not binding on any State and that Canada is not yet a party to the
1982 Convention on the Law of the Sea, the former being intended to
implement certain provisions of the latter.
*
397. Canada had difficulty in answering these Spanish arguments. It
endeavoured to do so indirectly, trying first to get round the link created
in the reservation in subparagraph (d) between "conservation and management
measures . . . and the enforcement of such measures" by con-structing a new
category of measures, namely, "enforcement measures", not found in the text
of the reservation. This approach is that of the Canadian Counter-Memorial
in general, and the same can be said of some of the Canadian statements at
the hearings. For example, Canada's counsel argued that the expression
"enforcement measures" used in the reservation (sic!) cannot mean anything
less than the powers and procedures that are expressly set out in the
amended Coastal Fisheries Protection Act of 1994. But the reservation says
nothing about enforcement "measures".
398. Occasionally, Canada avoided using the word "enforcement" or referred
to its ordinary meaning in a manner isolating it from its context in the
reservation. Sometimes its counsel talked of "disputed measures", meaning
both the "conservation and management measures" mentioned in the reservation
and "the enforcement of such measures", or else they resorted to descriptive
formulae, such as "measures such as those necessary to effect . . .". These
various presentations of the issue by Canada sought to eliminate or reduce,
in the interpretation of the reservation, the effectiveness of the word
"such" or to isolate it from the context of "conservation and management
measures" which precedes it in the reservation. Canada went so far as to
say that, if the use of force is not specifically excluded, it must be
included in any reasonable and logical definition of the word "enforcement".
In other words, it tried to overturn the general principle of law and of
the Court's jurisprudence to which I have already referred to the effect
that juridical instruments are to be presumed to conform to the law (Right
of Passage Judgment).
399. Canada maintained that the use of force against the Estai on 9 March
1995 on the high seas (no mention was made of the harassment at that time of
other Spanish fishing vessels in the NAFO Regulatory [p 725] Area) is
"enforcement" of the "conservation and management measures" taken by it in
regard to vessels fishing in the NAFO Regulatory Area under the 1995
regulations implementing its amended Coastal Fisheries Protection Act.
Consequently, all of these actions by Canada, it was contended, came within
the scope of the reservation. However, this did not prevent Canada's counsel
from referring also to certain defences on the merits, such as the need for
urgent action in 1995 because of overfishing by Spanish fishermen and the
normal and customary nature of the action taken, although they acknowledged
that, in the present preliminary proceedings concerning jurisdiction, the
Court could not rule on the question of the degree of force employed in this
particular case.
400. Canadian counsel emphasized that the measures taken by Canada in 1995
against Spanish and Portuguese vessels were "traditional" conservation and
management measures; in this respect they compared the Canadian measures
with those provided for in Article 61, paragraph 4, of the 1982 Convention
on the Law of the Sea concerning the "exclusive economic zone", in keeping
with Canada's general thesis in the present incidental proceedings that the
nature of maritime space in question is quite irrelevant. According to their
statements at the hearings, the only difference was where these measures
were applied by Canada: the NAFO Regulatory Area which is so precisely
designated in the reservation! Canada's counsel also mentioned other
countries' legislation but gave no specific examples of it.
401. Canada accused Spain of dramatizing the degree of force used by
Canadian coastguard vessels against the Estai when it was boarded on 9 March
1995. No shots had been fired at the vessel, and the boarding had taken
place without loss of life or serious bodily harm. The force was reasonable
force, employed for the sole purpose of arresting a fishing vessel which
offered resistance and was suspected of having violated conservation and
management measures prescribed by Canadian law. In other words, it was force
used solely to enforce Canadian law, and plain common sense required that
force needs to be used in enforcing the law. The fact that the vessel was
Spanish, the law Canadian and the maritime space an area of the high seas
were mere details, neither relevant nor of any value for the purpose of
interpreting the reservation in paragraph 2 (d) of the Canadian declaration.
402. Canada asserted that the measures taken against the Estai had nothing
to do with the use of force in relations between States as contemplated in
the United Nations Charter, adding, however, that it recognized that the
prohibition of the use of force laid down in Article 2, paragraph 4, of the
United Nations Charter was a peremptory norm (jus cogens). At the same time
Canada's counsel pointed out that, as far as the interpretation of the
reservation was concerned, the legality or illegality of the "enforcement"
of the measures was immaterial, but they [p 726] refrained from
characterizing Canada's own acts in this regard (adoption of the Regulations
of 3 March 1995; boarding of the Estai; harassment of other Spanish fishing
vessels).
403. The Canadian legislation permitted the use of force to board the Estai,
but only as a last resort and in the most limited way possible, since
Canadian criminal legislation was general law having "an entirely
humanitarian and commendable purpose . . . force likely to cause death or
serious injury is not justified unless it is necessary for
self-preservation or the preservation of any other person in brief,
self-defence" (CR 98/14, pp. 46-47; emphasis added). Who then attacked the
Canadian coastguard vessels or patrol boats that boarded the Estail Who was
it that placed these coastguard vessels and patrol boats in a situation of
"self-defence" ? Canada failed to answer these questions and therefore its
argument based on self-defence does not hold water. Despite invoking
Canadian legislation (which for the Court is simply a fact in the present
proceedings and not the applicable law), Canada's counsel nevertheless
sought recourse, as far as they were able, in international law in order to
attempt to justify the use of force provided for in the Canadian legislation
and its application on the high seas to the Spanish vessel Estai on 9 March
1995.
*
404. Canada's arguments concerning the use of force provided for in its
legislation and/or the force used against the Estai have no basis either in
the text of the reservation in subparagraph (d) of its declaration or in its
purported underlying intention. As far as the text of the reservation is
concerned, the word "enforcement", taken in its ordinary or natural sense,
does not cover "coercive measures". What is more, enforcement is not to be
confused with "enforcement action". It is highly significant in this respect
that the statements by Canada's counsel talked of enforce-ment and
enforcement action as though they were the same thing. These Canadian
arguments thus add words to the text of the reservation which are not in it.
This is the time to ask ourselves whether the application of grammar is to
be confined to the interpretation of the words "vessels fishing" in the
reservation. Even more significant is the fact that Canada, while certainly
speaking of its national legislation, makes no mention of those matters
really relevant to the interpretation of the reservation from the point of
view of the "underlying intention", so frequently referred to in other
contexts. Not a word, for example, of the statements of Mr. Ouellet or Mr.
Tobin. This is somewhat surprising, since Mr. Ouellet spoke of reprisals
("retaliatory action") in his statement to the Senate on 12 May 1995, and
reprisals is a term which in international law has a very precise and
generally accepted meaning.
405. As to the facts, Canada, as we have just said, presents them as
so-called conservation and management measures as provided for in its [p
727] national legislation, or as the enforcement of such measures. But the
issue calls for a far more detailed study of the "facts which are the
source" of the present dispute submitted to the Court by Spain on 28 March
1995 (see Chapter II of this opinion). On an examination of these facts, it
emerges clearly that neither the adoption of the Regulations of 3 March 1995
nor the boarding by force of the Estai are acts which genuinely concern the
conservation of the living resources of the sea, but acts of retaliation
directed against measures adopted in respect of the NAFO Regulatory Area by
a third party, the European Union.
*
406. And what line does the Judgment take as regards the interpretation of
the words "and the enforcement of such measures" in the reservation in
subparagraph (d) of Canada's declaration? In paragraphs 78 to 84, it
identifies and rejects one by one the Spanish arguments, namely: enforcement
contrary to international law; the extra-territorial application of
Canadian criminal law; the silence of the declaration and the reservation
in subparagraph (d) on the use of force; and the illegality, under
international law, of the relevant provisions of the Canadian legislation.
407. Notwithstanding the provisions of the 1982 Convention on the Law of the
Sea, the Judgment apparently sees nothing abnormal in the Canadian domestic
legislation, at least for purposes of the interpretation of the reservation
in the Canadian declaration with which we are concerned. Indeed, it asserts
that the use of a certain degree of force against foreign vessels on the
high seas is permissible in relations between sovereign States where the
conservation and management of the living resources of the high seas are
concerned. This again represents a shift of direction by the Judgment in the
Court's jurisprudence, both general in scope and unforeseeable in its
consequences, to which I cannot subscribe, except in regard to cases of
agreement between the States concerned.
408. What evidence does the Judgment put forward about the practice of
States and their opinio juris in this respect? The same as Canada, namely
Canada's own legislation, unidentified and unanalysed legislation of other
countries, and Article 22, paragraph 1 (c), of the Convention of December
1995 on Straddling Stocks (paragraph 81 of the Judgment). The author of this
opinion cannot agree, in the absence of specific evidence about the
practice of States and their opinio juris, that the provision of the
Convention on Straddling Stocks cited by the Judgment is "a general practice
accepted as law" (Article 38, paragraph 1 (b), of the Court's Statute),
either in March 1995 or today. Neither can I share the astonishing
conclusion in paragraph 84 of the Judgment that the use of force on the high
seas as contemplated by the Canadian legislation against vessels flying the
flag of a foreign State is today "commonly understood as enforcement of
conservation and management measures", [p 728] thus enabling certain conduct
by Canada with regard to Spain to be brought willy-nilly within the sphere
of application of the reservation in paragraph 2 (d) of the Canadian
declaration of 10 May 1994.
409. I find it neither "natural" nor "reasonable" to assert, as the
Judgment does, that in general international law the notion of
"enforcement" of conservation and management measures relating to the living
resources of the high seas now includes the use of force (whether minimal or
not) against foreign vessels on the high seas. In my opinion, for such force
to be used, general international law still requires the agreement of the
States concerned. In this connection, it is of interest to reproduce here
point 6 of the interpretative declarations concerning the signing by the
European Community and its member States of the 1995 United Nations
Agreement on Straddling Stocks:
"The European Community and its member States reiterate that all States
shall refrain in their relations from the threat or use of force in
accordance with general principles of international law, the United Nations
Charter and the United Nations Convention on the Law of the Sea.
Moreover, the European Community and its member States emphasize that the
use of force contemplated in Article 22 [of the Agreement on Straddling
Stocks] is an exceptional measure, to be based on the most rigorous respect
for the principle of proportionality, and that any abuse will engage the
international responsibility of the inspecting State. Any case of
non-compliance shall be settled by peaceful means, in accordance with the
relevant procedures for dispute settlement.
Furthermore, the European Community and its member States consider that the
relevant terms and conditions for boarding and inspection should be
elaborated in accordance with the relevant principles of international law
in the framework of the appropriate regional and sub-regional fisheries
management organizations and arrangements." (European Union, extract from
the draft Minutes of the 1935th session of the Fisheries Council, held at
Luxembourg on 10 June 1996, Annex I, point (ii), to the extract from the
record; the United Kingdom made an interpretative declaration in this
respect.)
*
410. It is also clear, at least to me, that, in the legal and factual
circumstances of the present case, the Judgment broaches an important issue
which divides the Parties on the merits of the matter. In its presentation
of the issue, the Judgment effectively prejudges the merits to an extent
unacceptable in preliminary proceedings concerning the Court's jurisdiction.
Article 79, paragraph 7, of the Rules of Court, might thus be [p 729] one
more victim of the present Judgment. As we have seen, the Judgment brings
the use of force under the Canadian legislation within the defini-tion of
what are "commonly" understood as "enforcement of conservation and
management measures", but the Parties are divided on the merits as to the
degree of force used by Canada in this case, and this also raises the
question of how Canada's specific acts should be characterized. The Judgment
does not deal with this latter issue. And of course it also remains utterly
silent on the question whether the use of force which it accepts can be
reconciled with the rule of the exclusive jurisdiction of the flag State
over its vessels on the high seas.
411. The Judgment also fails to deal with the question of the adoption of
the Canadian Regulations of 3 March 1995; throughout, its sights are set,
either exclusively or in the main, on the acts of enforcement involved in
the forcible boarding of the Estai. Yet the first request in the Spanish
Application concerns precisely the non-opposability of the Canadian
legislation, and thus above all the adoption of the Regulations of 3 March
1995. The acts concerning the Estai are simply a consequence of the
adoption of the Regulations. It is this measure first and foremost which
should be the focus of the present incidental proceedings for purposes of
interpretation of the Canadian reservation.
*
412. As regards the use of force, as with the other aspects of the dispute,
the task of the present incidental proceedings should be to determine
whether such a form of enforcement of conservation and management measures
is or is not excluded by the reservation in the Canadian declaration, the
declaration being totally silent about force and its use. The declaration as
a whole also tells us that in 1994 Canada gave its consent to the
jurisdiction in regard to all disputes other than those enumerated in the
reservations contained in the declaration itself (paras. 2 (a) to (d)).
413. In these circumstances, the use of force to enforce the measures
contemplated in the reservation in subparagraph (d) cannot simply be taken
for granted, since the international legal order contains a general
prohibition on the use of force by States in international relations. One
formulation of this general prohibition of the use of force, recognized by
Canada itself as a peremptory norm, is to be found in the Advisory Opinion
on the Legality of the Threat or Use of Nuclear Weapons (I.C.J. Reports
1996, p. 247, para. 48). The Respondent has given no adequate explanation of
why its declaration of 10 May 1994, including the reservation in
subparagraph (d), is silent about the use of force.
414. To this initial contribution to the interpretation of the Canadian
reservation, international law adds another which follows directly from the
general law of the sea. The high seas are a maritime area reserved for [p
730] peaceful purposes (Article 88 of the Montego Bay Convention), where no
State is entitled to use force in order to enforce measures of conservation
and management of living resources against vessels in that area flying the
flag of another State. There is not a single provision in the Convention
which permits any conclusion to the contrary. And these are rules of
international law which, as customary or general law, are applicable between
Canada and Spain.
415. A declarant State may, by way of reservation, exclude principles and
rules of international law in any sphere of international relations in
connection with its consent to the jurisdiction of the Court, but, clearly,
it must say so in its declaration, either expressly or by necessary
implica-tion, since the silence of the declaration deposited operates not
against, but in favour of, the international law in force, notwithstanding
the conclusions to the contrary in this respect in the present Judgment.
In the present case, there also exists in relation to the area of the high
seas in question a multilateral treaty regime concerning the management and
conservation of the living resources of the area, that of the NAFO
Convention of 1978, to which the fishing vessels of the two Parties are
subject a convention which the Canadian reservation expressly mentions
for the purpose of delimiting its geographical scope. Under this particular
treaty regime too, force may not be used in order to enforce measures of
conservation and management of resources against foreign vessels, in the
absence of agreement between the parties concerned (this is the position set
out in document NAFO/FC Doc. 96.1 mentioned in paragraph 70 of the
Judgment).
416. Moreover, declarations under Article 36, paragraph 2, of the Statute
must be made, interpreted and applied in good faith. Within the framework of
the optional clause system which is a system in the public domain
declarant States are entitled to know the extent of the consent to the
compulsory jurisdiction of the Court which each of them has given, as well
as any changes which take place in that consent after the deposit of the
original declaration. Silences, equivocations, false pretences, etc.,
represent neither the letter nor the spirit of the optional clause system
and the Court should not encourage them when it interprets declarations.
This is particularly so inasmuch as in the present case there are a number
of declarations in force expressly excluding by way of reservation disputes
or situations involving the use of force.
The Court has stated time and again, and in different contexts, that the
entire optional clause system is based on good faith and mutual trust among
declarant States. I have said and repeated this in the present opinion.
Moreover, reciprocity in the application of reservations contained in
declarations is also part of the system. All of this militates against any
automatic conclusions being drawn, in the interpretation of declarations,
from the silence or mental reservations of the declarant State with regard
to the use of force. [p 731]
417. Where a declarant State makes and deposits a declaration relating to
all disputes other than those specifically excluded from the Court's
jurisdiction, as is the case with the Canadian declaration, and where none
of the reservations in the declaration specifically excludes the use of
force in its text, it is neither acceptable nor in conformity with
international law to contend subsequently that, by virtue of internal
domestic legislation, the silence of the text with regard to the use of
force is to be interpreted as excluding from the jurisdiction which the
State has accepted a dispute (or an aspect of a dispute) with another
declarant State concerning the use of force.
*
418. Let us now take a closer look at what Minister Ouellet said in the
Senate on 12 May 1994. He undoubtedly stated that Canada, in order to
protect its amended Coastal Fisheries Protection Act, had made a
reservation in its new declaration of 10 May 1994, but he did not discuss
the text of the reservation as such. Nor was the text read out or commented
on in the Senate. Furthermore, he stated that the reservation would apply
"only during such time as we felt was necessary to take retaliatory action
f'reprιsailles'J against those engaged in overfishing" and that the vessels
concerned were irresponsible "pirate" vessels (Stateless vessels and vessels
flying a flag of convenience). This latter aspect of the matter has already
been discussed in the present opinion, but not as yet the mention by the
Minister of taking "retaliatory action".
419. The context readily lends itself to this, because from the conceptual
point of view Mr. Ouellet's words refer the reader to the notion of
"enforcement" of measures. Yet it is highly pertinent to note that the
Minister himself refers us in this regard to international law, since
"reprisals" are an institution of customary international law, called
counter-measures in Article 30 of the International Law Commission's draft
articles on State responsibility (ILC Yearbook, 1979, Vol. II, Part Two, pp.
128-135).
420. Whether reprisals are armed or not, and regardless of the question of
the relationship between "armed" reprisals and the rule in Article 2,
paragraph 4, of the United Nations Charter, there is clearly unanimity about
the definition of reprisals or countermeasures. This definition was
formulated in the following terms in the Arbitral Award of 31 July 1928 in
the responsibility case between Germany and Portugal with regard to the
Naulilaa Incident:
"Reprisals are an act of self-redress (Selbsthilfehandlung) of the injured
State, an act done in reply after giving notice and not receiving
satisfaction to an act contrary to the law of nations by the offending
State. Their effect is temporarily to suspend, in the relations between the
two States, the observance of one or another rule of the law of nations.
They are limited by humanitarian experience and by the rules of good faith
applicable in relations between [p 732]States. They would be unlawful if a
prior act contrary to the law of nations had not furnished the cause for
them." (United Nations, Reports of International Arbitral Awards, Vol. II,
p. 1026 [translation by the Registry]; the emphasis is that of the original
text of the arbitral award.)
Thus Mr. Ouellet himself refers us, quite rightly, to international law, and
not to Canadian legislation or its implementing regulations, in regard to
the definition of "enforcement" of the measures contemplated by the
reservation in subparagraph (d) of the Canadian declaration. But if we
accept, in interpreting the Minister's remarks, that in fact even armed
retaliation is covered by the reservation, inasmuch as it constitutes
enforcement of the measures adopted, we must immediately ask ourselves,
what prior act contrary to the law of nations on the high seas was being
charged against Spain by Canada when it adopted the Regulations of 3 March
1995 and boarded the Estai on 9 March 1995? In the present incidental
proceedings the Respondent has not argued, far less proved, the existence of
a prior internationally wrongful act imputable to Spain. It has merely
spoken in general teams of overfishing in an area of the high seas. That is
insufficient in international law for the taking of reprisals.
421. The conclusion could not therefore be clearer. In the circumstances of
the present case the supplementary means of interpretation invoked by the
Respondent serve only to confirm my interpretation of the words "enforcement
of such measures" in the Canadian reservation, an interpretation reached on
the basis of good faith, the text, the context and the international law
applicable between the Parties. Accordingly, the Court also has jurisdiction
in the view of the author of this opinion to deal with this aspect of
the Spanish Application, whether or not the specific measures taken by
Canada are "conservation and management measures" under international law.
*
422. Finally, it should be noted that the Judgment remains totally silent
with regard to the harassment, by Canadian coastguard vessels in particular,
of Spanish fishing vessels other than the Estai. Nor does it breathe a
single word about the question whether the "threat" of military force by the
Canadian Government, after the boarding of the Estai, so as to induce all
Spanish fishing vessels to cease their activities in the NAFO Regulatory
Area is, as such, to be considered as having its origin in the enforcement
of conservation and management measures within the meaning of the
reservation in paragraph 2 (d) of the Canadian declaration of 10 May 1994.
Is such threat of force also commonly included in the notion of enforcement
of measures of conservation and management of the living resources of the
high seas in international law? The Judgment fails to answer this question.
[p 733]
(e) The expression "disputes arising out of or concerning . . . measures" in
the reservation and the subject of the dispute submitted by Spain
423. As I have made clear throughout this opinion, in particular in Chapter
III, the subject of the dispute submitted by Spain to the Court concerns
Canada's title or lack of title to exercise certain jurisdiction, rights or
claims on the high seas in regard to vessels in that maritime space flying
the Spanish flag; accordingly, this dispute does not fall outside the
consent to the jurisdiction of the Court expressed by Canada in its 1994
declaration, despite the reservation in paragraph 2 (d) included in that
declaration. The reservation refers only to "conservation and management
measures" taken by Canada and "the enforcement of such measures", and not to
Canada's entitlement under international law to take and enforce the
measures in question against Spain and its vessels on the high seas. The
reservation in the existing Canadian declaration does not deprive the Court
of jurisdiction with regard to the title and measures, as was the case with
the reservation in paragraph 2 (d) of the 1970 declaration.
424. It follows, in my view, that the taking and enforcement by Canada of
conservation and management measures even if it were compatible with the
facts and the law could not give rise to a dispute whose subject is
precisely Canada's title or lack of title to take and/or enforce the
measures in question. Law and logic require that the issue of Canada's title
or lack thereof be treated as a pre-condition for the measures taken and/or
enforced by Canada.
425. This initial conclusion alone would dispose of the objection to the
Court's jurisdiction which Canada founds on the reservation in subparagraph
(d) of its 1994 declaration. In other words, a dispute of the kind submitted
to the Court by the Spanish Application of 28 March 1995 could not be a
dispute arising out of or concerning the measures to which the reservation
refers. Thus it is clear from the outset that the words used in the
reservation cannot operate so as to exclude jurisdiction in the
circumstances of the present case. It should be noted that, in Canada's
1970 declaration, the reservation in subparagraph (d) contained the same
words, but those which followed them referred also to the jurisdiction,
rights and claims of Canada as well as to the measures taken by Canada. This
is not the case with the present reservation, in which the phrase following
the words in question relates solely to measures taken and enforced by
Canada.
426. The foregoing conclusion represents what Spain has argued throughout
the present preliminary incidental proceedings. At first, as I said,
Canada's position on this point was that the subject of the dispute was
identical with the subject-matter of the reservation in subparagraph (d) of
its declaration. At the oral stage of the proceedings, that argument was
replaced by the contention that the subject of the dispute was also the
conservation and management of fisheries. From then on, [p 734] all Canada's
efforts were directed towards showing that the disputes to which the
reservation referred related to a notion wider than that of disputes whose
subject was "conservation and management measures". In Canada's view,
therefore, certain aspects or elements common to the dispute and the
reservation were sufficient to bring the dispute within the sphere of
application of the reservation. This was the context in which Canada invoked
the expression "disputes arising out of or concerning . .. measures". Thus
any issue raised by the measures adopted by Canada, directly or indirectly,
in relation to any matter, such as title, necessity, appropriateness, method
of enforcement etc. (arising out of or concerning) would be covered by the
reservation. Arising out of looked to the origin and concerning to the
subject of the dispute.
427. At first sight, that interpretation by Canada would appear to find
support in the text of the reservation in subparagraph (d). However, this is
pure illusion. Apart from the fact that the words "directly or indirectly"
do not appear in the text of the reservation, the Canadian arguments
quickly abandoned the French and English versions of the text of the
reservation in favour of others. This amounts to an admission that the text
of the reservation does not support Canada's "also" argument. Canada's
counsel then considered the expression "relating to" in the Greek
reservation in the case concerning the Aegean Sea Continental Shelf (I.C.J.
Reports 1978, p. 3).
428. The Respondent thus immediately took liberties with the text of its own
reservation. Canada's arguments at the hearings featured a whole spate of
substitutes for the expression "arising out of or concerning" used in the
reservation. And they didn't just stop at "relating to". Sometimes that
expression was joined by another,"refer to". And there were many others,
despite the soothing assertions that the text was clear and the intention
behind it no less so. For example, I noted the following: "also concerns";
"for it to have been caused by"; "for it to relate to"; "involve"; "regard";
"give rise to"; and so on.
429. From all this, it is obvious, yet again, that in Canada's eyes the
reservation has no text or, at the very least, that Canada considers itself
entitled to amend the text to suit the moment or the needs of the argument.
The issue is no longer the interpretation of a declaration under the
optional clause system. That has to be said. The initial reliance on the
expression "arising out of or concerning" was clearly no more than a
procedural ploy. The whole discourse remains centred on and governed by
Canada's underlying intention.
430. The Judgment takes the view that the terms used in the reservation in
subparagraph (d) confer a broader and more comprehensive character on the
exclusion established by the reservation. The Judgment accordingly espouses
the Canadian argument and, like Canada, proceeds to utilize other forms of
words to explain what would otherwise be per[p 735]fectly clear (see
paragraphs 62 and 63 of the Judgment). At this point in its reasoning the
Judgment had already been careful to eliminate the question of Canada's
title or lack of title as a subject of the present dispute. The Judgment
thus did not deem it necessary to express an opinion on the pre-condition,
that is to say, the legal and logical contradiction mentioned above.
Moreover, it did not even bother at this point to compare the expressions in
the two declarations, a procedure which it accepts and employs for other
purposes in paragraph 50 and elsewhere. As I have already pointed out,
nowhere in the Judgment is there any mention of the reservation in paragraph
2 (d) of the Canadian declaration of 1970, but only of the 1985 reservation.
431. Let it be said in conclusion that the matter of the words used in
subparagraph (d) of the reservation in the 1994 Canadian declaration seems
to play a quite secondary role in the reasoning of the Judgment, and for the
same reasons as in the present dissenting opinion, although different
conclusions are reached as to the existence of jurisdiction. Once one has
concluded, as I have done, that the measures adopted and enforced by Canada
in March/April 1995 against Spanish vessels were not conservation and
management measures, or the enforcement of such measures, within the meaning
which these expressions bear in the reser-vation, the words of the
reservation no longer have a major part to play in its interpretation. This
conclusion accordingly reinforces that which I reached in the opening
paragraphs of the present section. Thus neither the word "disputes", which
precedes the phrase in question, nor the expression "conservation and
management measures", which follows it, do anything to alter the
interpretation which this opinion attributes to the Canadian reservation in
the light of my observations and conclusions with regard to that word and
that expression.
Chapter V. Other Issues
I. The Court's Power to Determine Its Own Jurisdiction
432. In replying to Spain's arguments, counsel for Canada stated repeatedly
that this or that issue was a matter for the "merits" and not the
"jurisdiction", thereby overlooking the "preliminary" character of the
present incidental proceedings. For to assert that "jurisdiction/merits" is
synonymous with "preliminary/non-preliminary" is erroneous. The question of
jurisdiction must always be decided first, but that can occur both in the
preliminary incidental phase and at the merits phase. The fact that a
defence or objection is put forward in a preliminary form, as was done by
Canada, does not mean that it is genuinely preliminary or that it can be
settled in a preliminary incidental phase.
As the case-law confirms, by categorizing certain objections as
preliminary, Article 79 of the Rules of Court makes it quite clear that:[p
736]
"when they are exclusively of that character they will have to be decided
upon immediately, but if they are not, especially when the character of the
objections is not exclusively preliminary because they contain both
preliminary aspects and other aspects relating to the merits, they will have
to be dealt with at the stage of the merits. This approach also tends to
discourage the unnecessary prolongation of proceedings at the
jurisdictional stage." (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p.
31, para. 41.)
Thus in declaring, for example, that Canada's objection founded on the
reservation in subparagraph (d) did not, in the circumstances of the case,
possess an exclusively preliminary character, the Court would in no way be
ruling upon the legality of the conservation and management measures
referred to in the reservation, or of their enforcement. Such a declaration
would simply mean that the Court would decide those issues only at the
merits stage. The Judgment seems to proceed from considerations of a
different kind, namely the famous "underlying intention" of Canada that the
reservation should exclude any consideration of merits, whether at the
jurisdiction phase or subsequently.
2. Objections Which Do Not Possess an Exclusively Preliminary Character
433. Article 79, paragraph 7, of the Rules of Court provides that, after
hearing the parties, the Court shall give its decision in the form of a
judgment, by which it shall either uphold the objection, reject it, or
declare that the objection does not possess, in the circumstances of the
case, an exclusively preliminary character. In its Memorial and in the
hearings, Spain invoked this provision of the Rules with regard to certain
interpretations of the Canadian reservation put forward by the Respondent.
The Judgment avoids making any declaration to the effect that the objection
does not have an exclusively preliminary character. It does this by drawing
a distinction between the interpretation of the reservation and the question
of the legality of the acts referred to in paragraph 2 (d) of the Canadian
declaration (paragraph 85 of the Judgment).
434. For the Judgment, that is possible even when interpreting ambiguities,
uncertainties and silences in reservations contained in declarations.
Paragraphs 54 and 79 of the Judgment which I reject are absolutely clear
on this point. Good faith, it seems, has no part to play in the
interpretation of reservations! The Judgment appears to take pleasure in
stressing this point, for example when it states:
"Nowhere in the Court's case-law has it been suggested that interpretation
in accordance with the legality under international law of the matters
exempted from the jurisdiction of the Court is a rule that governs the
interpretation of such reservations." (Paragraph 54 of the Judgment.) [p
737]
435. However, even this extraordinary conclusion of the Judgment seems to me
insufficient to justify the exclusion, from the interpretation of a
reservation, of a declaration that a particular objection is not of an
exclusively preliminary character. Despite the Judgment's having redefined
the subject of the dispute (for example, by excluding Canada's title or lack
of title or the opposability or non-opposability of the Canadian legislation
to Spain), I find it quite impossible to agree with its conclusion that, in
the present case, not one of the issues which it addresses is other than of
an exclusively preliminary character, in particular the meaning of the
expressions "conservation and management measures" and "the enforcement of
such measures" in the reservation, as well as the matter of Canada's use of
force in the circumstances against Spanish vessels and its subsequent
threatening acts on the high seas. At all events, the Judgment ignores the
third alternative which Article 79, paragraph 7, of the Rules of Court
offers in regard to incidental proceedings on preliminary objections.
3. The Extent to Which the Present Judgment Constitutes Res Judicata
436. All the Court's judgments, including therefore the present one, are
binding on the parties, final and without appeal (Articles 59 and 60 of the
Statute), without prejudice of course to requests for interpretation or
applications for revision as provided in Articles 60 and 61 of the Statute
respectively. Self-evidently, the present Judgment is res judicata only as
far as the preliminary question of the Court's jurisdiction to decide the
dispute is concerned, the subject of the dispute as submitted in the
Application having moreover been reformulated by the Judgment itself. What
is more, having been delivered in preliminary incidental proceedings, the
Judgment cannot by its very nature decide or prejudge any question
whatsoever relating to the merits of the dispute between the Parties,
whatever its reasoning may say on that subject. Consequently, all the
questions concerning the merits of the dispute between Spain and Canada
submitted to the Court in the Spanish Application of 28 March 1995 fall
entirely outside the scope of the res judicata of the present Judgment on
jurisdiction.
General Conclusion
437. In the light of all of the foregoing considerations, I conclude that
the Court has full jurisdiction to adjudicate upon the dispute brought
before it by the Application filed by Spain on 28 March 1995.
There are three principal grounds on which this dissenting opinion is based.
First of all, the fundamental role of the rule of good faith both in the
modus operandi of the optional clause system and in the interpreta-[p
738]tion and application by the Court of declarations made by States under
Article 36, paragraph 2, of its Statute. Secondly, the equally fundamental
distinction which must always be made between, on the one hand, the
principle of the consent to the Court's jurisdiction of the States involved
and, on the other, the interpretation, in accordance with the rules of
interpretation laid down by international law, of the consent objectively
manifested in declarations at the time of their deposit with the United
Nations Secretary-General. Lastly, the no less fundamental requirement of
international proceedings that, in the interest of the principle of the
equality of the parties, the sovereign right of the applicant State to
define the subject of the dispute which it submits to the Court should be
respected just as much as that of the sovereign right of the respondent
State to challenge the Court's jurisdiction by presenting preliminary
objections or filing a counter-claim.
Each of these fundamental grounds is sufficient in itself to prevent me from
subscribing to a Judgment which I fear may have particularly negative
consequences, extending well beyond the present case, for the development
of the optional clause system as a means whereby States accept the
compulsory jurisdiction of the Court pursuant to Article 36 of its Statute.
(Signed) Santiago TORRES BERNERDEZ. |
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