4 December 1998

 

General List No. 96

 
     

international Court of Justice

     
 

Fisheries Jurisdiction

 
     

Spain

 

v. 

Canada

     
     
 

Judgment

 
     
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BEFORE:

President: Schwebel;
Vice-President: Weeramantry;
Judges: Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek;
Judges ad hoc: Lalonde, Torres Bernardez

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1998.12.04_fisheries.htm
   
Citation: Fisheries Jurisdiction (Spain v. Can.), 1998 I.C.J. 432 (Dec. 4)
   
Represented By: Spain: Mr. Jose Antonio Pastor Ridruejo, Head of the International Legal Service of the Ministry of Foreign Affairs, Professor of International Law at the Complutense University of Madrid, as Agent and Counsel (until 31 October 1998);
Mr. Aurelio Perez Giralda, Director of the International Legal Service of the Ministry of Foreign Affairs, as Agent (from 1 November 1998);
Mr. Pierre-Marie Dupuy, Professor of International Law at the University Pantheon-Assas (Paris II);
Mr. Keith Highet, Member of the Bars of the District of Columbia and New York;
Mr. Antonio Remiro Brotons, Professor of International Law at the Autonomous University of Madrid;
Mr. Luis Ignacio Sanchez Rodriguez, Professor of International Law at the Complutense University of Madrid, as Counsel and Advocates;
Mr. Felix Valdes Valentin-Gamazo, Minister-Counsellor, Embassy of Spain to the Netherlands, as Co-Agent;
Mr. Carlos Dominguez Diaz, Embassy Secretary, Assistant Director-General for International Fisheries Management Organizations, Ministry of Agriculture and Fisheries;
Mr. Juan Jose Sanz Aparicio, Embassy Secretary, Department of International Legal Affairs, Ministry of Foreign Affairs, as Advisers;

Canada: His Excellency Mr. Philippe Kirsch, Q.C., Ambassador and Legal Adviser to the Department of Foreign Affairs and International Trade, as Agent and Advocate;
Mr. Blair Hankey, Associate General Counsel, Department of Foreign Affairs and International Trade, as Deputy Agent and Advocate;
Mr. L. Alan Willis, Q.C., Department of Justice, as Senior Counsel and Advocate;
Mr. Prosper Weil, Professor Emeritus, University of Paris, as Counsel and Advocate;
Ms Louise de La Fayette, University of Southampton;
Mr. Paul Fauteux, Department of Foreign Affairs and International Trade;
Mr. John F. G. Hannaford, Department of Foreign Affairs and International Trade;
Ms Ruth Ozols Barr, Department of Justice;
Ms Isabelle Poupart, Department of Foreign Affairs and International Trade;
Ms Laurie Wright, Department of Justice, as Counsel;
Mr. Malcolm Rowe, Q.C., Government of Newfoundland and Labrador;
Mr. Earl Wiseman, Department of Fisheries and Oceans, as Advisers;
Ms Manon Lamirande, Department of Justice;
Ms Marilyn Langstaff, Department of Foreign Affairs and International Trade;
Ms Annemarie Manuge, Department of Foreign Affairs and International Trade;
Mr. Robert McVicar, Department of Foreign Affairs and International Trade;
Ms Lynn Pettit, Department of Foreign Affairs and International Trade,
as Administrative Officers.

 
     
 
 
     
 

[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.

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FN1 C. H. M. Waldock, "Decline of the Optional Clause", British Year Book of International Law, Vol. 32, 1955-1956, p. 283.
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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

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FN2 UNCIO, XIII, p. 559, doc. 702.
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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

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FN3 Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 46.
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[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.)

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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.
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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.

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FN5 J. G. Merrills, "The Optional Clause Today", British Year Book of International Law, Vol. 50, 1979, p. 94.
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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

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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.
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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.

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FN7 International Law Association, Report of the Fifty-First Conference, Tokyo, 1964, pp. 43-44.
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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

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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.
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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.

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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.
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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 manœuvres 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.

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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.)
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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

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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.
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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?

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FN6 CR 98/9, p. 52, para. 35 [translation by the Registry].
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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.

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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.
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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.

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FN9 I.C.J. Reports 1980, p. 19, para. 36.
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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.

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FN10 Ibid., p. 20, para. 37.
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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

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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.
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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

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FN12 R. Y. Jennings and A. Watts (eds.), 9th ed., 1992, p. 1275.
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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

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FN13 Preliminary Objections, I.C.J. Reports 1957, p. 142.
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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.

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FN14 Note Verbale of 10 March 1995, Memorial of Spain, Ann. 11.
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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.

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FN15 See Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 33, para. 79.
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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

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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.
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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.

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FN18 By Mr. van Karnebeek, Minister for Foreign Affairs of the Netherlands, ibid., p. 322.
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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.
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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.
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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.

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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.)
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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.

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FN22 Benjamin N. Cardozo, The Growth of the Law, 1931, p. 20.
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***

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.

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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.
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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

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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. ]
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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.

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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.
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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.

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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.

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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.

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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).

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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

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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.
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"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.

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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.
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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.

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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.

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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.
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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.

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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.
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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".

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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.
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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 manœuvres, 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.

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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.
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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.

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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.

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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.)

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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).

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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?

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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.)
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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.)

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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.
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*

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.

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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).


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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.

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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.

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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.
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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.

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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.

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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.

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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.

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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.

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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.

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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".

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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?

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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).


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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.

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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"!

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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;

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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.
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(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.

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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.

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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.

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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.

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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.

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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.)

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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.

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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.

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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.

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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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