The Anglo Norwegian Fisheries Case

British Institute of International and Comparative Law
The Anglo-Norwegian Fisheries Case Author(s): D. H. N. Johnson Source: The International and Comparative Law Quarterly, Vol. 1, No. 2 (Apr., 1952), pp. 145180 Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law Stable URL: http://www.jstor.org/stable/755514 Accessed: 22/02/2009 01:21
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=cup. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org.
Cambridge University Press and British Institute of International and Comparative Law are collaborating with JSTOR to digitize, preserve and extend access to The International and Comparative Law Quarterly.
http://www.jstor.org
The
International
Law
Pt. 2.
FISHERIES
and
Comparative
Volume 1.
THE
Quarterly
April 1952
CASE
ANGLO-NORWEGIAN
By D. H. N. JOHNSON INTRODUCTORY ON December 18, 1951, the International Court of Justice delivered judgment in favour of Norway in the AngLo-Norwegian Fisheries Case, which began with the deposit of the United Kingdom Application on September 28, 1949. This judgment, being " final and without appeal," 1 puts an end to a dispute which has existed between the two countries for about 40 years and which assumed acute form in September, 1948, when the Norwegian Government decided to enforce strictly the provisions of the Norwegian Royal Decree of July 12, 1935. This Norwegian Decree provided that, in the area of northern Norway, beginning approximately with the Vestfjord 2 and extending as far as the Soviet frontier at the extremity of the Varangerfjord (a distance round by the coast of over 900 miles not counting the numerous indentations or, as the crow flies, about 550 miles), the exclusive Norwegian fisheries zone should extend four miles to seaward of straight base lines drawn between certain specified base points. These base points were to be either on the mainland, or on islands or on rocks, and 48 of them were specified. Some of the base lines connecting the base points are long, for example, 30 miles across the Varangerfjord, 40 miles across the Vestfjord, 39 miles across an area of water known as the 44 miles across an area of water known as the Svaerholthavet, Lopphavet, and in many other cases between 15-25 miles.
2
1 By virtue of Article 60 of the Statute of the Court. It will be desirable to follow this article with the aid of the map.
145
I.C.L.Q.--1
10
146
International and Comparative Law Quarterly
[VOL. 1
Considering that the effect of these base lines was to enclose, for exclusive use by Norwegian fishermen, areas of water which it believed to be high seas, the United Kingdom Governmentafter various efforts to agree on an ad hoc line had broken downdeposited an Application with the Court on September 28, 1949, asking it " (a) to declare the principles of international law to be applied in defining the base lines, by reference to which the Norwegian Government is entitled to delimit a fisheries zone, extending to seaward 4 sea miles 3 from those lines and exclusively reserved for its own nationals, and to define the said base lines in so far as it appears necessary, in the light of the arguments of the Parties, in order to avoid further legal differences between them; " (b) to award damages to the Government of the United Kingdom in respect of all interferences by the Norwegian authorities with British fishing vessels outside the zone which, in accordance with the Court's decision under (a), the Norwegian Government is entitled to reserve for its nationals." 4 During the next two years the parties exchanged two sets of written pleadings, the United Kingdom taking a total of eight months and filing 320 pages of pleading (and some 180 pages of annex), Norway taking a total of 10 months and filing 850 pages of pleading (and some 530 pages of annex). Oral hearings took place in September and October, 1951. Each side made two speeches, the United Kingdom taking a total of nine and a half days (236 pages), Norway a total of 11 days (311 pages). The principal advocates were, on the United Kingdom side, the then Attorney-General (Sir Frank Soskice), Sir Eric Beckett of the Foreign Office, Professor Waldock of Oxford University and Mr; Richard Wilberforce, and, on the Norwegian side, Mr. Sven Arntzen, of the Norwegian Bar, and Professor Maurice Bourquin, of the University of Geneva. The Court, after deliberating six weeks,
3 By using this formula the United Kingdom recognised Norway's right to a
fisheries zone of four miles. Although the litigation formally concerned an exclusive " fisheries zone," it was recognised by the parties and by the Court that what was involved was the permitted extent of the territorial sea. It being agreed that the territorial sea was in this case one of four miles, the only issue before the Court was the validity of the Norwegian method of delimiting such a sea. 4 Norway in her Counter-Memorial reserved the right to claim damages from the United Kingdom for the damage resulting from the United Kingdom Government's failure to recognise the validity of the Norwegian Royal Decree of July 12, 1935. Later it was agreed by both parties that all questions relating to damages should await the judgment of the Court on the merits of the case. Some weeks after the Court had delivered judgment the Norwegian Government announced that it did not intend to pursue its claim with regard to damages.
APRIL 1952]
The Anglo-Norwegian
Fisheries
Case
147
delivered a judgment of 27 pages.5 At the end of his oral Reply, the United Kingdom Agent submitted a list of Conclusions, which summarised the principles which, in the United Kingdom view, should govern the drawing of the Norwegian base lines, a final Conclusion being that the Norwegian Royal Decree of July 12, 1935, was not enforceable against the United Kingdom to the extent that it violated these principles. Conversely the Norwegian Agent submitted that the Court should declare that the Norwegian Decree of 1935 was not inconsistent with the rules of general international law binding upon Norway, that in any event Norway possessed an historic title to the waters included in the limits defined by the Decree, and accordingly that the Decree was not contrary to international law.
THE LEGAL ASPECT
The basic issue before the Court was the correct method of delimiting a territorial sea which both parties agreed to be four miles in breadth.6 Norway argued that her method of using straight base to henceforth as lines connecting extreme base points-referred " the Norwegian system " 7-was not contrary to international law,
5 The statistics given above are not without interest. A comparison with the Eastern Greenland Case (Series A/B No. 53), in 1931-33, shows that the Norwegians then overwhelmed their Danish opponents as regards the volume of their arguments by a similar proportion. More significant, however, is that whereas the ratio of the Court's judgment in that case to the arguments (written and oral) submitted by the parties was 1: 55 pages, in the AngloNorwegian Fisheries Case it was only 1 : 90. 6 See footnote 3 above. 7 On the basis of the combined features of the Decrees of 1812, 1869, 1889 and 1935, " the Norwegian system " may be summarised as follows:(a) A territorial sea of four miles. (b) This territorial sea to be measured from straight base lines to which there need be no maximum length. (c) These base lines to be drawn between the headlands of bays or other indentations on the mainland and, when there are islands, islets or reefs off the mainland, between the most extreme of such islands, islets or reefs. According to the statement of the Norwegian Agent on October 5, 1951, the base lines " conform to the general direction of the coast and are drawn between the outermost islands, islets and reefs in such a way as never to lose sight of the land." This statement, however-which did not appear in earlier Norwegian formulations of the system-is believed to contain an argument in defence of the system rather than an enunciation of its basic principles. Thus, it is a fact that, because of the mountainous nature of the coast covered by the 1935 Decree, the base lines do not lose sight of the land. This would not necessarily be so, however, if the system were to be applied to an indented yet less mountainous coast. In any case, from the practical point of view, it would seem to be immaterial whether or not the base lines themselves " lose sight of the land." If the visibility of the land is to be a valid test for a proper delimitation of territorial waters, what would matter would be the visibility of the land from the outer limit of territorial waters and not from the base lines. As for the principle that the base lines " conform to the general direction of the coast," this is of necessity subordinated to the requirement that the base
148
[VOL. 1
whereas the United Kingdom maintained in its Conclusions that " Norway is entitled to a belt of territorial waters of fixed breadth -the breadth cannot, as a maximum, exceed four sea miles "; that " in consequence, the outer limit of Norway's territorial waters must never be more than four sea miles from some point on the base line," and that, as a rule, " the base line must be low-water mark on permanently dry land or the proper closing line of Norwegian internal waters " (e.g., bays). It is important at this point to consider the United Kingdom contention in some detail. The United Kingdom contention was not that straight base lines were in all cases inherently illegal, nor even that they must be in all cases limited in length. The United Kingdom agreed that base lines might be drawn across bays and even went so far as to admit that Norway had an historic right to draw base lines across all her fjords, regardless of the width of their opening. The United Kingdom maintained that, as regards bays in general, a State is only entitled " to trace the base line across the waters of an indentation at the nearest point to the entrance at which the width does not exceed ten miles," but, by virtue of her recognition of Norway's historic title to the fjords, she did not object to the Norwegian base lines on grounds of length as such and, in her final Conclusions, she did not put the ten-mile rule formally in issue. It is important to realise that it was not primarily the length of the Norwegian base lines that aroused the United Kingdom's opposition, but the fact that Norway used base lines at all along certain sections of the coast. In the United Kingdom view, base lines were permitted across the openings of bays only, and a bay was a " well-marked indentation, whose penetration inland is in such proportion to the width of its mouth as to constitute the indentation more than a mere curvature of the coast." The Norwegian system, however, involves the use of base lines between base points on the mainland, on islands or on rocks, without regard to the question whether the water enclosed by the base lines can properly be said to be a bay at all. Even the divergent views regarding base lines did not, however, go to the root of the fundamental difference between the parties. This may be most succinctly stated by saying that, in the United Kingdom view, Norway, like any other State, was bound by the rule that " subject to the provisions regarding bays and islands,
lines be drawn " between the outermost islands, islets and reefs." The extent to which the Norwegian base lines do in fact " conform to the general direction of the coast" is largely a matter of opinion, but this statement of the Norwegian agent must not be taken to mean that the Norwegian system in any way corresponds to " the coast-line rule " (see note 8 below).
APRIL
1952]
The Anglo-Norwegian
Fisheries
Case
149
the breadth of the territorial sea is measured from the line of the low-water mark along the entire coast "-in other words "the coast-line rule." 8 Norway, however, denied that she was bound by the coast-line rule. The main contentions of the parties were therefore as follows : on behalf of the United Kingdom, that Norway was bound by the coast-line rule and that the Norwegian system was invalid in so far as it contravened this rule and its permitted exceptions 9: on behalf of Norway, that Norway was not bound by the coast-line rule, and that neither this nor any other alleged rule of international law was contravened by the Norwegian system. These were the basic issues between the parties so far as general international law was concerned.
THE HISTORICAL ASPECT
There was also, however, a basic difference between the parties concerning the historical aspects of the case. The United Kingdom argued that the rules of general international law, which it propounded, were binding on Norway unless Norway could show that she had an historic right to be exempted from these rules. The United Kingdom admitted that Norway could claim exemption for historic reasons from the rule limiting the extent of the territorial sea to three miles, and from the rule which required the base lines across bays to be drawn at the nearest point to the entrance at which the width of the opening does not exceed 10 miles. The United Kingdom denied, however, that Norway had an historic right to be exempted from the coast-line rule. Norway, since she considered the general rules of international law to be far
8 This rule was referred to by the United Kingdom throughout its pleading as "the tide-mark rule." Norwegian counsel argued that this was a confusing title to give to the so-called " rule" because it gave the impression that the rule that the territorial sea should be measured from the coast itself-which Norway does not accept-is equally as authoritative as the rule that the territorial sea, when measured from the coast at all (e.g., at the base points), should be measured from the low-water mark and not from the high-water mark or the mean of the two tides. This latter rule Norway does accept. Norwegian counsel argued that the rule for which the United Kingdom was contending should be referred to as " the coast-line rule." The latter phrase will be used henceforth in this article in order to avoid any such confusion, and also because it is the one employed by Judge Read in his Dissenting Opinion. It is important to emphasise that, although the definition of the rule, given above, is taken from the report of Sub-Committee No. II at The Hague Codification Conference (1930) (Acts of the Conference, vol. 3, p. 217) the United Kingdom argued that the rule was a well-established rule of customary international law. 9 The principal exceptions being "bays" and "islands." For the United Kingdom contention with regard to " bays," see p. 148 above. As regards islands, the United Kingdom admitted that " any Norwegian island, that is, any area of land surrounded by water and permanently above high-water mark which is a Norwegian possession, has its own territorial sea and its own base line . . ."; also that " where there is a low-tide elevation situated within four sea miles of permanently dry land, or of the proper closing line of Norwegian internal waters, the outer limit of Norwegian territorial waters may be four sea miles from the outer edge (at low-tide) of this low-tide elevation."
150
[VOL. 1
more flexible than the United Kingdom contended, and not in themselves forbidding the use of the Norwegian system-at any rate along a coast-line with a geographical configuration such as not regard history as something that of northern Norway-did which gave exemption from the general rules of law so much as one factor, among many, justifying, in the peculiar circumstances of the case, her own special method of delimitation.10 Norway argued that the claims she put forward in the 1935 Decree were in fact far less extensive than the claims she had put forward at an earlier stage in history, and so to that extent they were justified The United Kingdom conceded that the Norwegian historically. claims of 1935 were less extensive than the earlier claims, but argued that the earlier claims, like similar claims put forward by other States (including the United Kingdom), had collapsed at the time that the regime of mare clausum gave way to the regime of mare liberum at the beginning of the nineteenth century. In order to justify the Norwegian system on historic grounds, therefore, Norway would have to prove that during the nineteenth and twentieth centuries she had acquired positively-and with the acquiescence of the United Kingdom-an historic right to employ such a system along her coasts. Norway contended that it was not indispensable for her to show this, but that, even if it were, she could produce In 1869 she had issued a Decree presthe necessary evidence. cribing a base line 26 miles long connecting two islands off the coast of Spndmqre (well south of the area delimited by the 1935 In 1889 this line had been extended northward off the Decree). coast of Romsdal by a series of four straight lines (respectively 14.7, 7, 23.6 and 11.6 miles long), also connecting islands. In each case the exclusive Norwegian fisheries zone extended four miles to The United Kingdom admitted that seaward of the base lines.ll 10 As Norwegiancounsel put in on October12, 1951:-" The NorwegianGovernment does not rely upon history to justify exceptionalrights, to claim areas of sea which general law would deny; it invokes history, together with other factors, to justify the way in which it applies the generallaw." 11 The four-mile limit itself rested on a Decree of the Kingdom of Denmark/ Norway of February22, 1812, which prescribedthat " in all cases when there is a questionof determiningthe limit of our territorialsovereigntyat sea that limit shall be reckonedat the distance of one ordinarysea league (four miles) from the island or islets farthest from the mainland, not coveredby the sea." This Decree, which was not publisheduntil 1830, was intended-asan administrative instructionfor use in prize eases. Its first applicationto fishery limits was in 1869. It was agreed by both parties that the 1812 Decree itself was silent on the question of base lines. Norway argued, nevertheless, that the Decree really implied the base line system and that, when the question first arose of defining fisheries limits, the authors of the 1869 legislation naturally interpretedthe 1812Decreein that sense. As against this, the United Kingdom arguedthat the words" the distanceof one ordinarysea league from the island or islets farthest from the mainland" meant that the outer limit of the fisheries zone must be measuredfrom real land (i.e., " the coast-line rule ")
and not from notional base lines (i.e., " the Norwegian system ").
APRIL 1952]
The Anglo-Norwegian
Fisheries
Case
151
she had not protested against the 1869 and 1889 Decrees, but contended that those Decrees applied to only a very small section of the Norwegian coast, in which British fishermen were not interested. (The object of the Decrees was to exclude Swedish fishermen.) Thus, though the Decrees gave Norway an historic right to apply her system off the particular coasts concerned, they gave her no right to apply-without the consent of other Statessuch an exceptional system along the whole extent of her coasts. From the point of view of historic titles, therefore, the principal issue in the case was the status and applicable extent of the Norwegian system at the moment that the dispute between the two countries relating to the northern coast of Norway began.
THE GEOGRAPHICAL ASPECT
A few remarks must also be made concerning the geographical aspect of the case, as the Court attached special importance to this. The principal geographical facts were that from the region of the Vestfjord, approximately as far as the North Cape, the Norwegian mainland, itself heavily indented, is sheltered by a large number of islands, islets, rocks and reefs of various sizes forming what is known as a " skjaergaard " or " rock rampart," the Norwegian word " skjaer ' being equivalent to the Scotch word "skerry." The effect of this formation is to give this part of the coast the character of an almost uninterrupted succession of bays and straits. East of the North Cape the coast is of a more normal character, except that it is still heavily indented. The only dispute between the parties as to geography concerned the character of certain of the Norwegian base points.
METHODS OF DELIMITING TERRITORIAL WATERS
As regards the basic question of methods of delimiting territorial waters, it became apparent during the pleadings that three methods are theoretically possible. These methods are: (a) The Norwegian method of using straight base lines connecting the headlands of bays and the outermost islands, islets and reefs, and of measuring the territorial sea from these base lines. Although elsewhere referred to as " the Norwegian system," this method may generally be described as " the headland theory "-because it is by no means exclusively a Norwegian system. (b) A method known as the courbe tangente or " arcs of circles method " (which will be described below).
152
[VOL. 1
(c) A method, known as the trace parallele, which consists of drawing on the chart an exact replica of the coast-line so many miles out to sea from that coast-line.l3 Space does not permit of a detailed description, still less a comparative analysis, of these various methods. Suffice it to say that both parties agreed that the so-called trace parailele method, although theoretically feasible along a very straight coast-line, becomes progressively impracticable in proportion as the coastline becomes indented, and would be completely impracticable along a very indented coast-line such as that of northern Norway. It is necessary, however, to give some consideration to the arcs of circles method because this is the method which the United Kingdom itself uses. The United Kingdom did not argue that the arcs of circles method is itself binding on Norway (or any other State) under international law, but contended rather that the coast-line rule is binding on Norway (as on other States) and that the arcs of circles method is the most natural and the easiest-indeed the only practicable-method of applying the coastline rule, at any rate to an indented coast-line. In a word, the United Kingdom contention was as follows: If a State is entitled to a territorial sea of four miles, it means that that State can claim as territorial waters all areas of sea that are within four miles of the nearest land (or base line across a bay), but it may not claim as territorial waters any areas of sea that are more than four miles from the nearest land (or base line across a bay). The arcs of circles method of delimiting the territorial sea is really the inverse of the process used by a ship to discover whether she is inside or outside territorial waters. Just as the navigator of a ship, having plotted his position on the chart, draws an arc of four miles radius-assuming the breadth of the territorial sea to be four miles--and knows at once that, if the arc cuts the nearest land, he is inside territorial waters; or that, if the arc
13
For a general discussion of the problem of delimiting the territorial sea, see Gidel, Le Droit International Public de la Mer (1934), Vol. 3, pp. 503-516, and Boggs, American Journal of International Law (1930), Vol. 24, pp. 541555. The "headline theory" has been sufficiently described above (p. 150) in considering the Norwegian system. As for the tracd parallele, although Gidel includes it in his classification as a method, it is doubtful if in fact it can be called a method at all. Later on Gidel says: " Le trace parallele n'est jamais admissible en tant que mdthode; il est de nature B exister en tant que rgsultat. C'est ce qui arrive lorsqu'il s'agit de c6tes exceptionellement rectilignes, telles que sont par exemple certaines cotes occidentales de l'Amdrique de Sud ou de l'Afrique au sud de l'Equateur, ou, en France, la c6te des Landes." So far as is known, the tracd parallele has never been employed by any State as a method. In so far as it can be said to be a method of delimiting territorial waters, it owes its existence as such-as Gidel recognises -to writers on international law, who were not properly aware of the practical problems involved, and to the failure of Sub-Committee No. II at The Hague Codification Conference (1930) sufficiently to repudiate the error of the writers.
APRIL 1952]
The Anglo-Norwegian
Fisheries
Case
153
cuts no land at all, he is outside territorial waters; or that, if the arc exactly touches the nearest land, then he is exactly on the limit of territorial waters-so any person on the coast, wishing to draw the limit of territorial waters on a chart, draws arcs of four miles radius from an infinite number of points along the coast. In technical language, the outer line of territorial waters is then formed by the outer "envelope " of all these arcs. The effect, however, may be summed up by saying that the outer line of territorial waters becomes a series of gentle curves andespecially in the case of an indented coast-line-a very much smoother line than the coast-line itself. Yet every point on the outer line is always four miles exactly from the nearest point on the coast-line. The reason why the outer line is a smoother line the coast-line itself is that, owing to the intersection of the arcs drawn from the more prominent points on the coast-line, the arcs drawn from the less prominent points become irrelevant. Consequently, it is only the comparatively small number of arcs drawn from the more prominent points on the coast-line which determine the outer line, and an experienced person can tell more or less at a glance which these prominent points are. If, therefore, the coast-line rule were a generally binding rule of international law and if the arcs of circles method were the generally accepted method of applying it, it would be a more or less automatic process of no difficulty to delimit the territorial waters of any country in the world. Just because the process would be so simple, it would also not ordinarily be necessary because, if ever a dispute arose as to whether a particular point was inside or outside territorial waters, it would be possible to determine the answer at once by reference to the arcs of circles method. It was contended by the United Kingdom that the fact that so few countries had found it necessary to delimit their territorial waters on charts and that when disputes had arisen-as in prize cases-they had always been solved by reference to the arcs of circles method, was very strong evidence both that the coast-line rule was a rule of international law and that the arcs of circles method (though not legally binding) was generally accepted as the most practicable method of applying it. Norway, however, apart from making the negative point that the arcs of circles method was not a binding rule of international law, also argued that it was an impracticable method to apply to the Norwegian coast since, in between the curves formed by the arcs, there would be awkward " pockets " of high seas. Norway even went so far as to argue that the arcs of circles method was not fully developed until 1930, when it was alleged to have been
154
International
and Comparative Law Quarterly
[VOL. 1
proposed by the United States delegation to The Hague Codification Conference and also in an article in the American Journal of International Law by Mr. S. W. Boggs, the Geographer to the State Department.14 The United Kingdom, however, denied that the arcs of circles method was a new proposal, first made. in 1930, and maintained that it was the traditional method of applying a customary rule of international law, namely the coast-line rule. In support of this contention it referred to the traditional practice of prize courts, in dealing with particular cases, and also the actual delimitation on charts of the exclusive fisheries limit around the coasts of Iceland made by Denmark subsequent to the AngloDanish Convention of 1901.15
THE JUDGMENT OF THE COURT
The Court found, by ten votes to two, that the method employed for the delimitation of the fisheries zone by the Royal Norwegian Decree of July 12, 1935, is not contrary to international law, and by eight votes to four that the actual base lines fixed by the said D.ecree in application of this method are not contrary to international law.16 The Court began its judgment by paying particular attention to the geographical aspect of the case. It stressed the indented nature of the coast of northern Norway, the unity of the " skjaergaard " with the mainland, the mountainous nature of the terrain which enables both mainland and " skjaergaard" to be visible from far off, the dependence of the population of this barren region on fishing and so on. The Court stressed these facts in a manner
14
15 British and Foreign State Papers, Vol. 94, p. 29.
See Acts of the Conference, Vol. 3, p. 197, and Boggs, loc. cit. Article II of this Conven-
"Proposals for Agreements between His Majesty's Government in Great Britain and the Norwegian Government regarding territorial waters and fisheries off the Norwegian coast," 1928 (Cmd. 3121), reads as follows: " The limit of territorial waters is the envelope of all circles, three nautical miles in radius, whose centres are situated on the low-water mark; the coast-line from the low-water mark of which this limit is measured is that of the mainland and of all islands." See Gidel (op. cit., Vol. 3, p. 511), where the author, writing of the arcs of circles method in 1934, says " la methode . . . n'est pas en ellememe une methode nouvelle . . . elle a ete generalement pratiquSe lors qu'il s'est agi de tracer la mer territoriale devant les cotes convexes." 16 The Court's judgment, together with the Individual and Dissenting Opinions, is reported in I.C.J. Reports, 1951, pp. 116-206.
tion provided: " The subjectsof His Majestythe King of Denmarkshall enjoy the exclusive right of fishery within the distance of three miles from the lowwater mark along the whole extent of the coasts of the said islands, as well as of the dependent islets, rocks and banks" (e.g., the coast-line rule). Charts, applying the arcs of circles methodto this Article, were forwardedby the Danish Governmentto the British Governmentin 1902. The Norwegian charts showing a Governmentitself filed as Annex 2 to its Counter-Memorial British green line drawnaccordingto the arcs of circles methodin 1924. This line was drawn round the Norwegian coast for the purposeof some negotiations between the two countries at that time. Also, Article II of the
APRIL 1952]
The Anglo-Norwegian
Fisheries
Case
155
which seems to suggest that it was doing more than merely set out the facts of the case-such as it is customary to do at the beginning rather saw in these special facts a reason of any judgment-but for applying the rules of law which it was about to apply.l7 The Court did not (as we shall see) expressly state that there are no rules of general international law on the subject of territorial waters that bind all States, but rather adopted the position that such general rules as there are possess a considerable degree of flexibility. Having stressed the peculiar geographical features of the Norwegian coast, the Court said: " Such are the realities which must be borne in mind in appraising the validity of the United'Kingdom contention that the limits of the Norwegian fisheries zone laid down in the 1935 Decree are contrary to international law" (p. 128). The Court found that, because of the special geographical features of the coast in question, "the line of the low-water mark can no longer be put forward as a rule requiring the coast-line to be followed in all its sinuosities; nor can one speak of exceptions when contemplating
so rugged a coast in detail. Such a coast, viewed as a whole, calls for the application of a diferent method. Nor can one
characterise as exceptions to the rule the very many derogations which would be necessitated by such a rugged coast. The rule would disappear under the exceptions" (p. 129). It is to be regretted that this passage, possibly the most vital in the whole judgment, is not free of obscurity. There is no doubt that the Court rejected the coast-line rule as a rule binding on What is less clear is whether the Court intended to reject Norway. the coast-line rule as a rule of international law altogether. It might be inferred, from the emphasis placed on the peculiarities of the coast of northern Norway, that the Court had no such intention. Yet, when the judgment is examined closely, the conclusion is inescapable that it was the Court's intention to reject the coast-line rule as a general rule of law, but that, in view of the very great authority in favour of that rule,l8 it felt impelled to
17
18
At a later stage in the judgmentthe Court said that " the method of straight lines" established in the Norwegian system was imposed by the peculiar geography of the Norwegiancoast " (p. 139). In assessing the replies of the Governmentson this question the Preparatory Committee of The Hague CodificationConference(1930) made the following observation: " To take as the base line the line of low-watermark following all the sinuositiesof the coast is equivalentto saying that any point in the sea situated not more than three miles from a point on the line of low-watermark is included in the territorialwaters. Accordingto the other conception,the boundaryof the territorialwaters is a line parallel to an imaginary line connecting certain salient points of the coast. The majority of the States which have supplied informationpronouncefor the first formula, which has already
156
International
and Comparative Law Quarterly
[VOL. 1
effect the change in a somewhat oblique fashion. Thus the Court says later on in the judgment that the Norwegian system is not so much an exceptional system as " the application of general international law to a specific case," 19 from which it is only possible to infer that there is a rule of general international law on the subject but that this rule, instead of being the coast-line rule, is a more elastic rule. The chief means, however, by which the Court accomplished what will be widely regarded as a significant change in the law of territorial waters was to equate the coast-line rule with the so called trace parallele method,20 and then to dismiss the latter as inapplicable. Thus, the United Kingdom, which in its Memorial had put forward the coast-line rule as the rule for the base line and which at that stage of the case had not approached at all the actual problem of delimiting the outer limit of Norwegian territorial waters, is described by the Court as having invoked the trace paralltle method against Norway in its Memorial.21 In fact, however, it was not until the Reply was filed with the Court that the United Kingdom concerned itself with the actual problem of delimiting the outer limit. With the Reply, the United Kingdom submitted, for the first time, charts showing its conception of the actual delimitation of territorial waters off the coast of northern Norway. These charts were based on the coast-line rule as applied by the arcs of circles method, due account being taken of those historic claims advanced in the Norwegian Counter-Memorial, which the United Kingdom was prepared to concede. There was never at any time any question on the United Kingdom side of invoking a trace parallele method against Norway. It would have been if there had the coast-line since been, rule, applied by the strange arcs of circles method, is the system which the Hydrographic Department of the British Admiralty, which prepared the charts, " (Bases of Discussion,Vol. 2, been adoptedin variousinternational conventions p. 38). Judge Read, in his Dissenting Opinion,said: " I have no doubt that the coast-linerule is an establishedrule of internationallaw " (I.C.J. Reports, 1951, p. 187). Sir ArnoldMcNair, in his Dissenting Opinion,said: " There is an overwhelmingconsensus of opinion amongst maritime States to the effect that the base line of territorialwaters, whatevertheir extent may be, is a line which follows the coast-line along low-water mark and not a series of imaginary lines drawn by the coastal State for the purposeof giving effect, even within reasonablelimits, to its economicand other social interests and to other subjectivefactors" (ibid., p. 161). 19 At p. 131. 20 This is clear from the following words: " the line of the low-watermark can forwardas a rule requiringthe coast-lineto be followedin all no longer be put " its sinuosities (p. 129). 21 In the Court'swords: " this methodof the tracdparellele, which was invoked against Norway in the Memorial,was abandonedin the written Reply, and later in the oral argumentof the Agent of the United KingdomGovernment (p. 129).
APRIL1952]
The Anglo-Norwegian Fisheries Case
157
has traditionally been accustomed to apply whenever it has been asked to delimit territorial waters off any coast. The Court, however, having equated the coast-line rule with the trace parallele method, was naturally precluded from accepting the view that the arcs of circles method is merely the traditional method of applying the coast-line rule. It accepted, instead, in its entirety, the Norwegian thesis that the arcs of circles method was a new technique, first proposed by the United States in 1930.22 Having thus interpreted the coast-line rule as " a rule requiring the coast-line to be followed in all its sinuosities " and having thus rejected the contention that the arcs of circles method is but the traditional method of applying the coast-line rule, the Court was naturally left with no alternative but to accept some system of straight lines as the proper system for such an indented coast as that of northern Norway. It only remained to determine whether the system actually used by Norway-" the Norwegian system "was valid. The Court seems, however, to have had second thoughts concerning its rejection of the coast-line rule. In view of the strength of the authority advanced by the United Kingdom in support of this rule, such second thoughts are hardly surprising. The compromise solution at which the Court appears to have arrived, at is that, while straight base lines are not in themselves illegal, they must nevertheless conform to a certain principle, and this principle is " the principle that the belt of territorial waters must follow the general direction of the coast "-a principle which, it is said, " makes it possible to fix certain criteria valid for any delimitation of the territorial sea." 23 Thus " the coast-line rule," as formulated earlier in this article, is not a rule of law of general application. There is, instead, a general principle that " the belt of territorial waters must follow the general direction of the coast." Provided that the belt of territorial waters conforms to this principle, it seems to be immaterial whether it is measured from straight base lines connecting certain prominent points along the
22
23
At p. 129 of the judgment. Cf. Judge Read, who, in his Dissenting Opinion, said: " I must, however, point out that the so-called 'arcs of circles method' is nothing more or less than a technical expression, used to describe the way in which the coast-line rule has been applied in the international practice of the last century and a half " (p. 192). At p. 129 of the judgment. It may be noted that the expression " general direction of the coast " was the very expression used by the Norwegian Agent on October 5, 1951. Norwegian practice with regard to base lines may therefore be said to have been instrumental to a very large extent in shaping the general law on this subject, just as the Danish/Norwegian Decree of 1812 was largely instrumental in promoting the concept of a maritime belt of a fixed distance in miles. Compared with the part it played in promoting this concept, the fact that the Decree provided for a four-mile limit, instead of the more generally accepted three-mile limit, is of small moment.
158
[VOL. 1
coast, or from "the line of the low-water mark along the entire coast " according to the arcs of circles method, or indeed according to the trace parallele (where this is practicable). All these three methods are presumably legal. For the Court did not hold that the arcs of circles method and the trace parallele were illegal; it merely held that these methods were not binding on Norway. From this the conclusion follows that those States, which wish to claim the maximum extent of territorial sea, will adopt some form of " headland theory," whereas those States which are content with less will either adopt avowedly the arcs of circles method or the trace parallele, or adopt no particular method at all. To adopt no particular method at all is, however, virtually to adopt the arcs of circles method because the trace paraliele is completely impracticable and, as the Court admits, the arcs of circles method is " constantly used for determining the position of a point or object at sea" 24 (i.e., whenever a particular case arises in which it is necessary to know whether that point or object is inside or outside territorial waters). The " criteria valid for any determination of the 'territorial sea'" derive, therefore, their authority from "the principle that the belt of territorial waters must follow the general direction of the coast," whilst the underlying rationale of this latter principle (and indeed of the whole law relating to territorial waters) is expressed by the Court as follows: " The delimitation of sea areas has always an international aspect: it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law" (p. 132). The actual criteria by which the validity under international law of any given delimitation may be summarised are as follows:(i) While the coastal State "must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of base lines must not depart to any appreciable extent from the general direction of the coast " (p. 133). " (ii) The real question raised in the choice of base lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be
24
At p. 129.
APRIL 1952]
The Anglo-Norwegian
Fisheries
Case
159
subject to the regime of internal waters. This idea, which is at the basis of the determination of the rules relating to bays, should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway " (p. 133). Court mentioned that " several States have deemed The (iii) it necessary to follow the straight base lines method " and that such lines had been used " not only in the case of well-defined bays, but also in cases of minor curvatures of the coast-line where it was solely a question of giving a simpler form to the belt of territorial waters"25 (pp. 129-30).
25
This being the only passage where the generalpracticeof States is invokedin support of the Court's conclusions, it is regrettable that the States whose practice is relied upon are not mentioned by name. The State whose base lines are most like those of Norway is Iceland (see I.C.L.Q., January, 1952, p. 71), which adopted the base line method along its northern coast on April 22, 1950. This delimitation,however,has encounteredstrong opposition from the United Kingdom,Belgium, the Netherlandsand the Federal German Republic. Ecuador is another State whose claims with regard to base limits are comparableto the Norwegianclaims, althoughEcuadorclaims a territorial sea of 12 miles as opposedto Norway's territorialsea of four miles. Article 3 of the Decree of the Congressof the Republicof Ecuador,dated February21, 1951,relatingto territorialwaters, reads as follows:" National territorial waters comprise a minimum distance of 12 nautical miles measuredfromthe outermostpromontories of the Ecuadorian Pacific Coast as well as the inner waters of the gulfs, bays, straits and canals comprisedwithin a line drawn between such promontories. Also considered as the territorial sea are those waters comprised within a perimeterof 12 nautical miles measuredfrom the outermostpromontories of the farthest islands of the ColonArchipelago." These claims have, however,been protestedagainst by the United Kingdom and the United States. Yugoslaviaand France have also used base lines elsewhere than across bays (i.e., between islands or between islands and the mainland), but their lines are neither so extensive nor so long as Norway's. Perhaps the example which the Courthad most in mind was that of another Scandinavian State, namely Sweden. For instance, the Swedish Decree of November21, 1925, relating to visits by foreign warships to Swedish waters, providesthat " those parts of Swedish waters which are situated between, or landwardof, Swedish islands, islets and reefs not permanentlycoveredby the sea " shall be deemed to be Swedish internal waters. There appears, howbe no regular " Swedish system " of straight base lines comparable ever, to to the " Norwegian system," and, in replying to the PreparatoryCommittee, Conference(1930), Sweden only went so far Hague Codification prior to The as to say: " The Swedish Governmentis of opinion that, for the purposeof calculating the breadth of territorialwaters, it would be advisable to take, as the basic line, a line drawn betweenthe outermostpoints of the coasts, islands, islets and rocks; in front of the bays across the opening of the bay on the seaward side, and, in front of ports, across the entrance to the port " (Bases of Discussion,Vol. 2, p. 189). That Norway could rely on some State practice in support of her claim cannot be disputed. It is equally certain, however,that the practiceon which she could rely was the practice (by no means identical with her own) of a small minorityof States. The readinessof the Court to infer customarylaw from the practice of a minority, rather than of a majority, of States raises important issues with regard to the future developmentof internationallaw. These issues are not confinedto the law of territorialwaters. They are, however,too general to be discussedfurtherin this article.
160
[VOL. 1
(iv) " Finally, there is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage " (p. 133). Base lines may be drawn not across bays only, but also (v) "between islands, islets and rocks, across the sea areas separating them, even when such areas do not fall within the conception of a bay. It is sufficient that they should be situated between the island formations of the ' skjaergaard,' inter fauces terrarum " (p. 130). (vi) "The Court concludes that the Svaerholthavet has the character of a bay " 26 (p. 141). (vii) The ten-mile rule for bays " has not acquired the authority of a general rule of international law " (p. 131). (viii) (a) "What really constitutes the Norwegian coast-line is the outer line of the ' skjaergaard' " (p. 127). (b) " Since the mainland is bordered in its western sector by the ' skjaergaard,' which constitutes a whole with the mainland, it is the outer line of the ' skjaergaard ' which must be taken into account in delimiting the belt of Norwegian territorial waters " (p. 128). The ten-mile rule does not apply to the base lines (c) drawn across the waters lying between the various formations of the "skjaergaard." " It may be that several lines can be envisaged. In such cases the coastal State would seem to be in the best position to appraise the local conditions dictating the selection" (p. 131). It seems reasonable to infer that at least some of the basic criteria of international law relating to the delimitation of territorial waters are contained in the above passages, and an attempt will now be made to assess these criteria. The general principle is clear. Each State is allowed a belt of territorial waters. This belt-the Court did not have to decide how wide the belt may be-is measured from base lines. The base line may be either the actual line of the coast, or, in a number of cases, an imaginary line drawn on a chart. Both the belt and the base lines (when imaginary base lines are used) must " follow the general direction of the coast," although a certain degree of flexibility is allowed. Base lines may be drawn not merely across
26 The significance of this decision can best be assessed by reference to a largescale chart. See also p. 167 below.
APRIL 1952]
161
well-defined bays but across areas " sufficiently closely linked to the land domain to be subject to the regime of internal waters." Normally the test is a geographical test and the areas within the base lines, though not required to be bays, must be at least to some extent land-locked (inter fauces terrarum). Sometimes, however, the normal rules may be " liberally applied," as for instance in the presence of unusual geographical conditions or of economic considerations.27 Provided there is no excessive deviation from the general principle, base lines may also be drawn across "minor curvatures." There is no legal limit to the length of the base lines. Base lines across " well-defined bays " must be presumed to " follow the general direction of the coast." Base lines across other sea areas may, however, require to be justified by reference either to economic considerations or to the peculiar geography of the coast in question. Where there is an archipelago off a mainland, and the islands of the archipelago constitute a " unity " amongst themselves and the archipelago itself is " united " with the mainland, then base lines (without regard to length) may be drawn between the mainland and the islands and between the islands themselves. These principles, simple and not unreasonable in themselves, now apparently constitute the law of territorial waters. Declared as they have been for the first time in the Court's judgment, there is little doubt as to their novelty. It is, however, an accepted part of the judicial process in international law as well as in municipal law, that if a court cannot find immediately to hand a specific law or legal principle applicable to the particular case which it has to decide, it should deduce such a principle from some more general principle of law. The Court in this case seems to have followed this course and to have discovered as a general principle of law " the principle that the belt of territorial waters must follow the general direction of the coast." This principle in turn derives from the basic fact that " the delimitation of sea areas has always an international aspect." Few will be tempted to criticise the logic of the process by which the Court arrived at this position, once given the premiss that there was no legal principle, already sanctioned by customary international law, applicable to the case. The right of the Court to create new law cannot in itself be questioned. It is rather the premiss which is likely to be most contested and which was of course the point on which the dissenting judges most violently disagreed with the Court. Accept the premiss that " the coast-line rule " was not a
27
The Courtrefers (at p. 133 of the judgment)to the Norwegiansystem as "an adaptationrenderednecessaryby local conditions."
I.C.L.Q.--1 11
162
[VOL. 1
rule of customary international law in 1951, and the Court's judgment becomes a reasonable definition of the law amid very difficult circumstances. Deny this premiss, and the Court's judgment appears rather as a sacrifice of an established rule of law in favour of some general principles of reasonableness, at once imprecise and subjective. For, if the criteria laid down by the Court have every appearance of reasonableness, it can also hardly be denied that they have the disadvantage of possessing a considerable degree of uncertainty. In so far as the decision of the Court is to be regarded as a precedent of general application-and it is a matter of great difficulty to determine how far the judgment should be treated as such a precedent and how far merely as an ad hoc solution of a very exceptional problem-international law on the subject of territorial waters can hardly be said to have been clarified by it. Rather the reverse is true. The applicable rules contended for by the United Kingdom may have been too precise, but, even assuming that that was so, the rejection of these rules in the interests of flexibility and of local considerations has been made at a considerable price, the price of certainty and stability. In determining the proper extent of territorial waters which international law allows to the coastal State under the system propounded by the Court, so much is left to subjective factors, so much depends upon the discretion of the authorities of the coastal State in the first place and upon the appreciation of the international judge called upon to settle disputes in the second place, that it becomes virtually impossible to advise what the law is in any particular case. A situation of this kind is likely actually to provoke disputes and to render the settlement of such disputes extremely difficult. It may be said, on the other hand, that there is nothing new in this situation, that the Anglo-Norwegian dispute itself continued for 40 years, and that it is facile to expect a genuine clarification of the law concerning the actual delimitation of the territorial sea until there is first some international agreement as to the permissible extent of this sea. Even if the law concerning base lines were crystal clear and precise, no real advance would have been made if States were left at liberty to vary the breadth of the territorial sea that is measured from these base lines. The question of the permissible breadth of the territorial sea was not, as we have seen, before the Court in this case. The matter may therefore be left with two observations only. In the first place, it is to be hoped that the International Law Commission, now that it has broached the problem of territorial waters, will offer some
APRIL 1952]
163
constructive suggestions that will put an end to the present confusion. Secondly, in so far as the Court has inclined towards an interpretation of the law of coastal waters that favours the exclusive interests of the coastal State, the task of procuring international agreement with regard to the conservation of the resources of the remaining area of the high seas is made more difficult. Yet, as the International Law Commission has already recognised, this is ultimately the only feasible solution of a pressing problem.28 There is one respect in which the Court's judgment may lead to a considerable simplification in the law of territorial waters. Even if rules as to delimitation "having the technically precise character alleged by the United Kingdom Government "-to use the Court's phrase 29-never in fact existed as rules of law, there is no doubt at all, as the practice of States, the dissenting judgments and other authorities testify, that there was a widespread impression that these rules, or something like them, constituted the law. This being so, international lawyers were accustomed to give much consideration to the question of exemptions from these rules, to the question, in other words, of " historic waters." It was contended by the United Kingdom that the very existence of the notion of " historic waters " was imperative proof of the existence of general rules of customary law imposing definite limits on claims to territorial waters. As a general proposition this is scarcely contestable, although there is naturally room for difference of opinion as to the way in which the proposition should be interpreteddifference of opinion, that is, as to the nature of the general rules to which the " historic waters " constitute an exception. The Court apparently accepted the basic United Kingdom contention with regard to historic waters. " By historic waters," it said, "are usually meant waters which are treated as internal waters, but which would not have that character, were it not for the existence of an historic title."30 By laying so much stress, however, on the flexibility of the general rules of international law relating to delimitation, by rejecting the coast-line rule as a rule of law, and by including " long usage " as a factor to be considered in assessing the validity, even under general international law, of straight base lines drawn, not across bays only, but across sea areas " sufficiently closely linked to the land domain to be subject to the regime of internal waters," the Court immeasurably reduced the scope of " historic waters " as waters specially
Report of the International Law Commission Covering its Third Session, A/CN. 4/48 of July 30, 1951, at pp. 59-61. At p. 132 of the judgment. 30 At p. 130.
28
29
164
[VOL. 1
exempted, by virtue of an historic title, from the general rules of law. Indeed, even if the concept of a " bay " still has any significance left (which is itself doubtful), it is clear that the familiar concept of the "historic bay" has been swept out of existence. Consequently, what was referred to earlier in this article as "the historical aspect of the case" became virtually of no significance at all. Having found for Norway on the legal aspect (i.e., the rules of general international law), the Court was not strictly under an obligation even to consider the historical aspect (i.e., Norway's right, based on an historic title, to be exempted from the general rules of international law, assuming the Royal Decree of July 12, 1935, to be contrary to these rules). The Court did, in fact, consider this aspect of the case, but, in view of its reduced significance, not to mention its complexity, it is not necessary for us to deal with it at length. It will be remembered that the chief issue was whether the Norwegian system of straight base lines was historically established before Norway's dispute with the United Kingdom began, and thus binding on the United Kingdom. Norway argued that the three Decrees of 1812, 1869 and 1889 constituted all the essential elements of such a system. The United Kingdom maintained (i) that the 1812 Decree, although it established a four-mile limit, made no provision for straight base lines and (ii) that the 1869 and 1889 Decrees, although they introduced straight base lines, did so for a very small part of the Norwegian coast only (where British fishermen were not interested in the fishing), and could not be said to constitute a system valid for the entire Norwegian coast and binding, as such, on the United Kingdom. The Court accepted the Norwegian thesis in its entirety. Although the United Kingdom argued very strenuously that, even in Norwegian law, there was no coherent and consistent system until the 1930's, and convinced the dissenting judges with its arguments, the Court dismissed these arguments in a rather casual manner, saying: "The Court considers that too much importance need not be attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice. They may be easily understood in the light of the variety of the facts and conditions prevailing in the long period which has elapsed since 1812, and are not such as to modify the conclusions reached by the Court" (p. 138). The matter is too involved and of too little general interest to warrant lengthy treatment in this article. It is respectfully
APRIL 1952]
165
submitted, however, that, in considering an historic title, " uncertainties and contradictions" are the very things that are relevant and the Court's judgment suffers, by comparison with the dissenting judgments, from the comparatively meagre treatment given to these " uncertainties and contradictions." 31 The Court found, not only that there was in Norwegian law a coherent system before the dispute with the United Kingdom began, but also that this system possessed the characteristics of an historic title under international law by virtue of the lack of opposition from other States. The consistent opposition of the United Kingdom Government, from about 1911 onwards, to the Norwegian Government's claims with regard to the waters off the coasts of northern Norway, was legally of no avail because the Court found that, before this particular dispute began, the Norwegian system was valid and applicable to the entire Norwegian coast. The Court found that " for a period of more than 60 years (presumably from 1812 until the early years of the twentieth century) the United Kingdom itself in no way contested" the system.32 It seems, therefore, that only a consistent opposition on the part of the United Kingdom towards the 1869 and 1889 Decrees, and possibly even towards the 1812 Decree itself, could have prevented the development in law of Norway's historic title. The Court put the matter thus: " The notoriety of the facts, the general toleration of the international community, Great Britain's position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway's enforcement of her system against the United Kingdom" (p. 139). From this it may be concluded that the Court upheld the United Kingdom contention that the establishment of an historic title requires the acquiescence of other affected States, but disagreed with the United Kingdom as to the meaning of acquiescence.33 From the Court's conclusion that toleration of the 1869 and 1889 Decrees amounted to toleration of a similar system applicable along the entire extent of the Norwegian coasts, it may be deduced that a State, confronted with an exceptional claim on the part of another State, would be well advised to protest quickly, firmly and frequently and to reserve its position, not only with regard to the express contents of the claim made by the other State, but also
31 The Court's judgment devoted six pages to this part of the case; the Dissenting Opinions of Sir Arnold McNair and Judge Read devoted 13 and 12 pages to it respectively. 32 See p. 138 of the judgment. 33 Actually the phrase used by the Court several times is " general toleration " (toldrance gdngrale). This is probably intended to have a rather weaker meaning than "acquiescence."
166
International
and Comparative
Law Quarterly
[VOL. 1
with regard to any and every possible implication that might arise out of the claim. Further, under the Court's formulation, it would seem that ignorance as to another State's legislation on territorial waters,34 however excusable, can be fatal, and that States may neglect, at their own risk, to study each other's statute-books. While it is agreed that some system of prescription or historic titles is essential to the stability of the international order, it may be doubted if this interpretation of the law, emphasising, as it does, the duty of States to ferret out the details of each other's legislation and protest in the widest possible terms every time there is an implied threat to their rights, under penalty of losing these rights, will make for international harmony. There was merit in the notion that neither individual States, nor the international community, could be held to have been deprived of their rights under international law without clear evidence of their express acquiescence in the exceptional claim of another State.35
Surprising as it may seem States are often ignorant of each other's legislation in the matter of territorial waters. Even a maritime State, such as the United Kingdom, had no knowledge of some of the Decrees of other States put in as evidence by Norway during the proceedings. When asked by the United Kingdom Government to express its attitude to the recent continental shelf legislation of certain Latin-American countries the French Government replied: " Le Gouvernement frangais n'a jamais requ, par la vole diplomatique, notifications des resolutions ou propositions adoptees, de 1945 k 1950, par le Mexique, le Chili, le Perou, Costa Rica et le Salvador, ayant pour effet de changer la limite de leurs eaux territoriales. I n'a donc pas eu, dans ces cas precis, a formuler un avis. I1 estime cependant sur un plan general que de telles revendications ne sont pas recevables car elles lui paraissent en contradiction avec un principe de Droit International qui n'a jamais, jusqu'a present, te6 conteste. . . . Aucun Etat ne peut, par une declaration unilaterale, etendre sa souverainete sur la haute mer et rendre cette annexion opposable aux pays qui ont le droit d'invoquer le principe de la liberte des mers, tant que ces derniers ne l'auront pas formellement acceptee. Une renonciation a une regle de Droit Ihternational etablie dans l'interet de la communaute des nations ne peut pas se presumer." 35 Secretary Seward, in a note to the Spanish Minister to the United States in 1863, concerning Spain's claim to a six-mile limit, wrote as follows: "A claim thus asserted and urged must necessarily be now respected and conceded by the United States, if it could be shown that, on its being brought to their notice, they had acquiesced in it, or that on its being brought to the notice of other Powers it had been so widely conceded by them as to imply a general recognition of it by the maritime Powers of the world. It is just here, however, that the claim of Spain seems to need support. Nations do not equally study each other's Statute-books, and are not chargeable with notice of national pretensions resting upon foreign legislation " (Moore, Digest, Vol. 1, p. 710). See also Raestad, La Mer Territoriale (1913), p. 167, where this learned Norwegian jurist writes: " Le plus important, ce n'est pas, du reste, a mon avis, de savoir quand et comment a eu lieu l'occupation ou 'n'usurpation de tel ou tel droit sur la mer cotiere. L'important, c'est de savoir quand et comment a eu lieu le consentement expres ou tacite des nations, qui donne a l'occupation ou a l'usurpation la qualite d'un titre de droit." See also Perels, Manuel de droit maritime international (translated and edited by Arendt, 1884), p. 44, where this German jurist writes: " L'exercice unilateral de pretendus droits, meme quand il ne souleve pas les reclamations d'autres Etats, soit par connivence, soit par impuissance de resister, ne peut jamais etre oppose d ceux qui n'ont pas acquiesce expressement ou par des actes dont l'intention est evidente."
34
APRIL 1952]
167
Thus the Court found that the Norwegian system was a valid established system, both in law and in history, at the time that the dispute began. Having so found, it did not need to waste much time on the question whether the actual base lines prescribed by the 1935 Decree conformed to this system or whether they in any way exceeded it. The Court found that the lines " were the result of careful study initiated by the Norwegian authorities as far back as 1911 " and that these authorities " advocated these lines and in so doing constantly referred, as the 1935 Decree itself did, to the traditional system of delimitation adopted by earlier Acts, and more particularly by the Decrees of 1812, 1869 and 1889." 36 The Court found it necessary, however, to consider certain of the base lines because it had been contended by the United " Kingdom that these lines did not merely depart from the coast" line rule " but failed even to follow the general direction of the coast " which is, as we have seen, a principle to which the Court attaches overriding importance. The lines particularly concerned were those across the Svaerholthavet and the Lopphavet.37 As for the line across the Svaerholthavet, the Court solved the problem by pronouncing that this area " has the character of a bay," 38 a view which Judge Hsu Mo was unable to accept. This decision may well have some influence on the law relating to bays, so it is worth studying in some detail. The United Kingdom had asked the Court to define a bay as " a well-marked indentation, whose penetration inland is in such proportion to the width of its mouth as to constitute the indentation more than a mere curvature of the coast." The Court did not expressly reject this submission and indeed did not comment on it. The point at issue in the Svaerholthavet case was whether the "penetration inland" should be taken to be the tip of the Svaerholt peninsula (11.5 miles inside the base line) or the innermost points of the Laksefjord and the Porsangerfjord. The fjords are separated by the Svaerholt peninsula and penetrate inland, respectively 50 and 75 miles from the base line. It is all a matter of appreciation, difficult to define precisely, whether the Svaerholthavet is one
36 37
At p. 140 of the judgment. Readers following this article with an atlas will be able to form some idea of the Norwegian base lines in these areas, though allowance should be made for the small scale of the average atlas map. Across the Svaerholthavet the baseline is drawn from Nordkyn to Knivskjaerodde (which is west of the North Cape)-a distance of 39 miles. Across the Lopphavet the base line is drawn from the north-west point of the island of Scrpy to a rock called Vesterfallet i Gaasan (about 8{ miles north-west of the island of Fuglcy), a distance of 44 miles; after which there is a further line, 18 miles long, to a rock called Sannifallet, about 38 miles north-west of the island of Kvalfy. 38 At p. 141.
168
[VOL. 1
bay or a number of separate bays. The Court, considering " that the basin in question must be contemplated in the light of all the geographical factors involved" and referring to the penetration inland of the two fjords, found that it was one bay. The only conclusion that may fairly be drawn is that the Court probably accepts the United Kingdom's definition of a bay-which, it must be admitted, is an extremely loose definition-but interprets it, in case of doubt, in favour of the coastal State. In view, however, of the reduced importance of the conception of a bay in international law to which reference has been made above, the question whether a particular configuration constitutes a bay or not is somewhat academic. Probably, as we have seen, its only significance lies in the fact that, if an area is a " bay," a base line across it may be said automatically to " follow the general direction of the coast." On the other hand, if an area is not a bay but merely a " minor curvature " or an area of water " sufficiently closely linked to the land domain to be subject to the regime of internal waters," then a base line across it may have to be justified by reference to non-geographical tests, such as, for example, economic considerations.39 As for the Lopphavet, the Court did not go so far as to find that this area is a bay, preferring to describe it as an " extensive area of water dotted with large islands which are separated by inlets that terminate in the various fjords" and as an " ill-defined geographic whole." 40 This "wholeness " was nevertheless sufficient to justify the 44-mile base line across it. It is submitted that this decision, and especially the reasoning on which it is based, constitutes the weakest part of the entire judgment, and that this accounts for the dissent of Judge Hsu Mo on this particular issue. Having regard to the Court's ruling that base lines may be drawn, not only across bays, but also " between islands, islets and rocks, across the sea areas separating them, even when such areas do not fall within the conception of a bay," the finding that the Lopphavet did not possess the character of a bay was naturally not fatal to the validity of the long base line across this area of water. The Court had, however, seriously to consider whether the Norwegian base line conformed even to the Court's (and Norway's) own principle that base lines should " follow the general direction of the coast."
39 See p. 161 above.
40
At p. 141.
APRIL 1952]
169
The Court held: " It should be observed that, however justified the rule 41 in question may be, it is devoid of any mathematical precision. In order properly to apply the rule, regard must be had for the relation between the deviation complained of and what, according to the terms of the rule, must be regarded as the general direction of the coast " (pp. 141-2). It is submitted that the tautology inherent in this reasoning is not removed by the simple expedient of italicising the word " general." However, the Court went on: " Therefore, one cannot confine oneself to examining one sector of the coast alone, except in a case of manifest abuse; nor can one rely on the impression that may be gathered from a large scale chart of this sector alone " (p. 142). It is difficult to understand what the Court means by this sentence. At times-for instance, if an incident occurs in a particular spotit may be indispensable to " examine one sector of the coast alone." Not all disputes over territorial waters concern a system of base lines many hundreds of miles in length. And if one cannot rely on a large scale chart, what can one rely on ? The Court, thereupon, concluded: " In the case in point, the divergence between the base line and the land formations is not such that it is a distortion of the general direction of the Norwegian coast " (p. 142). If the " general direction of the coast " rule is " devoid of any mathematical precision," much must always be left to subjective appreciation, and it is useless to criticise the Court's conclusion. It may, however, be pointed out that the Court-not to mention Judge Hsu Mo's dissent-did not seem very confident of its own conclusion, because it continued: "Even if it were considered that, in the sector under review, the deviation was too pronounced, it must be pointed out that the Norwegian Government has relied upon an historic title clearly referable to the waters of Lopphavet" (p. 142). The history " relied upon " concerned some seventeenth century whaling concessions to an individual, which ancient concessions, the Court said, " tend to confirm the Norwegian Government's contention that the fisheries zone reserved before 1812 was in fact much more extensive than the one delimited in 1935." And, the Court continued, " although it is not always clear to what specific areas
41
i.e., the Court's own rule that base lines should " follow the general direction of the coast."
170
[VOL. 1
they apply, the historical data produced in support of this contention by the Norwegian Government lend some weight to the idea of the survival of traditional rights reserved to the inhabitants of the Kingdom over fishing grounds included in the 1935 delimitation, particularly in the case of Lopphavet." 42 With regard to the Lopphavet, therefore, the Court seems to have had at least some doubts as to whether the Norwegian delimitation was valid under general international law. These doubts, never very strong, seem to have been removed by the finding that Norway in any case possessed an historic title sensu stricto over this area. Finally, the Court pronounced, rather by way of a non sequitur, that the line across the Lopphavet appeared " to have been kept within the bounds of what is moderate and reasonable." 43 This last formulation raises the question whether the test of " moderation and reasonableness" is intended to be equivalent to the " general direction of the coast " test or to have a somewhat wider meaning. Probably any line that " follows the general direction of the coast" is automatically "moderate and reasonable," but it is not impossible-especially since the Court was adverting to a case where it was at least doubtful if the line concerned did satisfy this requirement-that the Court was prepared to accept that, in certain circumstances a line might still be " moderate and reasonable," and therefore presumably legal, even though it did not " follow the general direction of the coast." It would appear that these circumstances are governed by economic and historical considerations, though it is not necessary that there should be an historic title in the strict sense. Probably, where the line, though not following the " general direction of the coast, is moderate and reasonable," it can usually be justified as a " liberal application" of the normal rule. Where, however, the deviation is more pronounced and the line amounts to a serious abuse of the normal rule, then it can only be justified by reference to an historic title. Only one issue remained, namely, the line across the Vestfjord. Here the Court found that the difference between the views of the parties as to where the line should go was " negligible " and that " this question is purely local in character and of secondary importance, and that its settlement should be left to the coastal State." 44 This finding requires little comment, except that it seems to substantiate the conclusion, already hinted at in this article, that the Court approaches the law of territorial waters with a bias or presumption in favour of the coastal State. How different for instance is this
42 At p. 142. 43 At p. 142. 44 At 143.
p.
APRIL 1952]
171
language from that of Gidel, the great authority on the law of the sea, writing in 1934: "L'idee qui domine le droit de la mer est l'id6e de la liberte de l'utilisation licite et normale des espaces maritimes; toute restriction inutile a cette liberte doit etre evitee." 45
THE INDIVIDUAL OPINIONS COMPARED WITH THE JUDGMENT
OF THE COURT
Full-length Individual Opinions were delivered by Judge Alvarez (Chile) and Judge Hsu Mo (China). Judge Hackworth (United States) added an observation to the effect that he " concurs in the operative part of the judgment but desires to emphasise that he does so for the reason that he considers that the Norwegian Government has proved the existence of an historic title to the disputed areas of
water." 46
The brevity of Judge Hackworth's observation is disappointing. It seems to suggest that he disagreed with the Court concerning the general international law, but found for Norway for historical reasons only. If that is so, it is a matter for regret that he did not give the reasons why he disagreed with the Court. An Opinion by the United States judge concerning the general law of territorial waters could not fail to have been of the greatest interest. If the conclusion is correct that Judge Hackworth disagreed with the Court concerning the general international law, then it is profoundly significant, for a reason which will be discussed later. Judge Hsu Mo's disagreement with the Court (to which allusion has already been made) concerned the base lines across the Svaerholthavet and the Lopphavet. According to this judge, but for the special physical and historical facts of this case, the Norwegian system would have been contrary to international law. The general rule is that " apart from cases of bays and islands, the belt of territorial sea should be measured, in principle, from the line of the coast at low tide " 7 (i.e., the coast-line rule). Judge Hsu Mo makes the further important observation that " in whatever way the belt of territorial sea may be determined, it always remains true that the territorial sea owes its existence to land and cannot be completely detached from it." Therefore " the
45
46 At p. 144.
Gidel, op. cit., Vol. 3, p. 674. See also Calvo (Le Droit International (1887), Vol. 1, section 384), who writes: " Au fond, il faut bien le reconnaitre, toutes les questions que nous avons discutees plus haut se rattachent directement ou aboutissent forcement a un seul et meme principe fondamental, celui de la libertd des mers." Certainly the freedom of the seas, once so fundamental a principle of international law, was never, as some opponents of the principle seem to imagine, a mere manifestation of Pax Britannica.
47 At p. 154.
172
[VOL. 1
expression, 'to conform to the general direction of the coast' . . o should not be given a too liberal interpretation, so liberal that the coast-line is almost completely ignored." 48 In direct contradiction to the Court, Judge Hsu Mo says that this principle should be "interpreted in the light of the local conditions in each sector with the aid of a relatively large scale chart." 49 Also, in contradiction to the Court, he finds that the Svaerholthavet is " not a bay in itself simply because it does not have the shape of a bay," 50 but a combination of bays-the existence of the Svaerholt peninsula, in other words, makes a vital difference. To make the Svaerholthavet a bay simply by drawing a base line across it "would result in the creation of an artificial and fictitious bay . . . there is no rule of international law which permits the creation of such kind of bay." 51 In holding that the right to close bays by base lines is a permissive rule of international law, Judge Hsu Mo is but stating the coast-line rule, as understood by the United Kingdom, rather than the " general direction of the coast " principle as formulated by the Court. Indeed Judge Hsu Mo's position is that the coast-line rule is a general rule of international law, but that Norway is exempted from it by special physical and historical facts. As for the Lopphavet, Judge Hsu Mo agreed with the Court that this area is not a bay, but, he continued, " since Lopphavet is not a bay, there does not exist any legal reason for the base line to skip over two important islands, Loppa and FuglFy . . . in ignoring these islands, the base line makes an obviously excessive deviation from the general direction of the coast." 52 Judge Hsu Mo considered that Norway's historic claims in the Lopphavet area lacked precision, and " precision is vital to any prescriptive claim to areas of water which might otherwise be high seas." 53 Judge Alvarez' Opinion consists mostly of an expose of his now familiar concept of the "new international law." He begins with the dubious proposition that when "on a given topic, no applicable precepts are to be found," or when the precepts that do exist " appear to be obsolete, that is to say, they no longer correspond to the new conditions of the life of peoples," the Court must " develop the law of nations . . . remedy its shortcomings . . . create principles in conformity with such conditions." This process is rightly described as being "something quite different" from
At pp. 154-5. 49 At p. 155. 50 ibid. 51 ibid.
48
52 53
At p. 156. In orderto understandJudge Hsu Mo's point it is desirableto look at a map.

At p. 157.
APRIL 1952]
173
" Restatement " as understood by Anglo-Saxon jurists.54 Whereas, so far as can be made out, the Court's judgment was on the basis of its interpretation of the customary law, Judge Alvarez states quite frankly that he proposes, in the absence of well-defined rules on the subject, to decide the case according to " the principles of law resulting from the juridical conscience of peoples." Moreover, he maintains that these principles must be " adapted to the new conditions of international life; indeed, if no principles exist covering a given question, principles must be created to conform to those conditions . . . customs tend to disappear as the result of the rapid changes of modern international life; and a new case strongly stated may be sufficient to render obsolete an ancient custom. Customary law, to which such frequent reference is made in the course of the arguments, should therefore be accepted only with prudence." 55 Judge Alvarez then defines the chief characteristics of the "law of social interdependence " which he conceives as having replaced the old " individualistic regime" and applies these principles to the law, if it may be so called, of territorial waters. They include the following :(i) " Having regard to the great variety of the geographical and economic conditions of States, it is not possible to lay down uniform rules . . ." (p. 150). (ii) "Each State may therefore determine the extent of its territorial sea and the way in which it is to be reckoned, provided it does so in a reasonable manner, that it is capable of exercising supervision over the zone in question and of carrying out the duties imposed by international law,56 that it does not infringe rights acquired by other States, that it does no harm to general interests and does not constitute an abus de droit " (p. 150). There follows the somewhat sweeping remark that, " in the light of this principle, it is no longer necessary to debate questions of base lines, straight lines, closing lines of ten sea miles for bays, etc., as has been done in this case." 57 As if to emphasise that the matter is political rather than legal, Judge Alvarez provides that disputes over the extent of the territorial sea shall be generally "resolved in accordance with the provisions of the Charter of the United Nations," by which he must be understood to mean " negotiation, inquiry, mediation, conciliation . . resort to
54 At p. 146. 55 At pp. 148-9. 56 These duties of States are defined as " exercising supervision off their coasts, of facilitating navigation by the construction of lighthouses, by the dredging of certain areas of sea, etc." (at p. 150). 57 At p. 150.
174
International
and Comparative
Law Quarterly
[VOL. 1
regional agencies or arrangements, or other peaceful means," 58 etc., as well as arbitration and judicial settlement. Referring in the last paragraph of his Opinion to the particular case before the Court, Judge Alvarez simply found that "the Norwegian Decree of 1935 . . . is not contrary to any express provisions of international law. Nor is it contrary to the general principles of international law, because the delimitation is reasonable, it does not infringe rights acquired by other States, it does no harm to general interests and does not constitute an abus de droit"
(p. 153).
It is clear, therefore, that, according to Judge Alvarez, every State can do as it likes in the matter of coastal waters provided it conforms to the elastic tests outlined above.5"' From one point of view considerable importance might be attached to Judge Alvarez' Opinion in that it has the merit of appearing to make explicit certain notions which may be implicit in The principle that the maritime belt should the Court's judgment. " follow the general direction of the coast "; the idea that sea areas which are " sufficiently closely linked to the land domain to be subject to the regime of internal waters " may be enclosed by base lines; the idea that account should be taken of " certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by long usage "; the idea that the line across the Lopphavet is valid because it " appears to the Court to have been kept within the bounds of what is moderate and reasonable "; all these ideas appear in the Court's judgment somewhat as loose ends, unconnected by any dominating principle, except perhaps the principle that " the delimitation of sea areas has always an international aspect." Judge Alvarez' Opinion has the merit of formulating a general principle, which is at least readily intelligible and which gives shape to the Court's judgment, that is to say, the principle of complete freedom of action for the coastal State subject only to the test of reasonableness and the check provided by the
58
59
Whatever may be the effect of these doctrinesit should not be imagined that He Judge Alvarezis consciouslyan anarchistin regard to internationallaw. have States expressly repudiatesthe contention,put forwardby Norway, thatinternational the right to do everything which is not expressly forbiddenby law. " This principle," he says, "formerly correctin the days of absolute is sovereignty,is no longer so at the present day: the sovereigntyof St,ates henceforthlimited not only by the rights of other States but also by other factors previously indicated, which make up what is called the new international law: the Charterof the United Nations, resolutionspassed by the Assembly of the United Nations, the duties of States, the general interests of international society, and lastly, the prohibitionof abus de droit" (p. 152). The differencebetween Judge Alvarez' conceptionand the traditional conception of internationallaw is that, whereastraditionalinternationallaw regards
the restrictions that are placed upon the sovereignty of States as legal, Judge Alvarez regards them as primarily moral and political.
See Article 33 of the Charter of the United Nations.
APRIL 1952]
175
notion of abus de droit. If this interpretation of the Court's judgment is correct, then Judge Alvarez' Opinion should be read in conjunction with it, only as supplying a deficiency in the judgment, as it is often the role of an Individual Opinion to do. On the other hand it is possible that the Court's judgment and Judge Alvarez' Opinion, though united with regard to the particular issue of the Norwegian coast, are, so far as general principles are concerned, poles apart. Although they both formed part of the majority, there is clearly little in common between Judge Alvarez and Judge Hsu Mo. It is also safe to conclude that Judge Hackworth would not accept the extreme conclusions put forward by Judge Alvarez. It remains to consider, however, whether the judgment of the Court as a whole must be read as leaning towards the extreme views of Judge Alvarez or the more cautious views of Judge Hsu Mo. In other words, should the Court's judgment be regarded as marking rather a revolutionary change in the law of the sea, as generally understood previously, or is a more restrictive interpretation justifiable ? Both interpretations are possible, but, in the absence of any express statement in the judgment that the Court accepts or even has any sympathy with, the principles of Judge Alvarez, it is probably safer to give the judgment a comparatively restrictive interpretation. It is true that the Court approaches the law of territorial waters almost exclusively from the point of view of the coastal State. The interest of the international community in preserving the principle of the freedom of the seas is largely neglected. However, the Court stressed over and over again the exceptional circumstances of Norway's geography. What would be the need for the emphasis on the " geographical realities " behind this case, were it not for the fact that the Court considered that there is in the last resort a general rule, albeit a very elastic one ? The general rule is certainly far more open to exceptions than the " coast-line rule " as put forward by the United Kingdom. It is no longer a question of individual bays and islands constituting exceptions, but even of the whole coast-lines, where special circumstances justify such a departure. Nevertheless, where the coast-line is largely straight, then, it is presumed, it is the coast-line itself that must still constitute the base line. The coastal State cannot, for instance, merely draw an arc from the centre of its coast line and then proceed to claim as territorial waters all the waters enclosed by the arc. Nor can it draw an imaginary base line some miles out to sea and entirely unconnected with any land, and then claim as territorial waters a further band of water measured from that base line. These may not be serious limitations upon the coastal State's
176
[VOL. 1
freedom of action, but the important fact is that they are definite limitations and also that they are legal limitations. It is here, if both Opinions have been correctly interpreted, that Judge Alvarez parts company with the Court. For there is nothing in Judge Alvarez' formulation which requires the coastal State to accept even this degree of limitation upon its freedom of action. Conversely, it is possible to imagine situations-for example, a number of States situated in close propinquity to one another around a gulf-in which, for one State to claim as territorial waters a territorial sea measured from base lines drawn according to the Court's principles, might nevertheless be unreasonable, harm general interests and constitute an abus de droit. In such a situation the territorial sea so claimed would be legal according to the Court's principles and illegal according to the principles of Judge Alvarez.60
THE DISSENTING OPINIONS COMPARED WITH THE JUDGMENT THE COURT OF
It is a disquieting feature of this case that the only Dissenting Opinions should have been delivered by the two British Commonwealth judges, Sir Arnold McNair (United Kingdom) and Judge Read (Canada). Naturally, some will attribute their dissent to purely nationalistic causes. The known probity of the two judges concerned, as well as a reading of their Opinions, should be sufficient to refute any such allegations. It is believed, however, that the chief reason for their dissent is a fundamental difference between their outlook and the Court's outlook which extends far beyond the bounds of mere chauvinism, and is even more disquieting so far as the prospects of international arbitration are concerned. Coming from the Court's judgment to the dissenting judgments, an English lawyer at any rate feels as if he has moved into a
60 Taken as a whole, Judge Alvarez' Opinion seems to amount very nearly to a decision of the case ex aequo et bono, although the parties had not agreed to this course, and consequently under Article 38 (2) of the Statute, the Court had no power to decide the case on such a basis. It seems, moreover, that Judge Alvarez considers that all disputes of this type should be settled on this basis. Thus, he says that " the parties, in their pleadings and in their oral arguments, have advanced a number of theories, as well as systems, practices and, indeed, rules which they regarded as constituting international law. The Court thought that it was necessary to take them into consideration. These arguments, in my opinion, marked the beginning of a serious distortion of the case" (p. 147). This passage seems to justify the conclusion that a big gulf separates Judge Alvarez from the rest of the Court even as regards the very nature of international law. It may. be interesting to speculate what would have been the result if the Court had been asked to decide the case ex aequo et bono. From the United Kingdom point of view the result could not have been worse, and might even have been better, because it would then have been open to the Court to take into account the interests of British fishermen and consumers as well as the interests of the local Norwegian population.
APRIL 1952]
177
different world-from an unfamiliar world, as it were, into a familiar one. He seems to have left behind a world of a priori reasoning and special laws to meet special cases of hardship for a world where law is rigidly enforced as law (regardless of the occasional hard case) and is a matter of authorities and precedents, all carefully marshalled and weighed. It is an interesting fact, for example, that, whereas the Court refers to no previous award by any court or arbitral tribunal concerned with the law of the sea (except one judgment by a Norwegian court), Sir Arnold McNair refers to 13 such awards.61 It is a no less interesting fact that all the judges who either dissented or at least deviated from the major findings of the Court were judges trained in the Anglo-American school.62 It has been argued that the differences between the Anglo-American and the Continental approach to international law have been exaggerated, but it is submitted that they were never more apparent than in this
case.63
If our analysis is correct that the Court's judgment in this case was very much influenced by the special geographical facts of Norway's northern coast-line, it is fair to assume that Sir Arnold McNair's Dissenting Opinion may be at least of some persuasive authority in the future so far as some aspects of general international law are concerned. From that point of view alone it is worth studying. The point at which Sir Arnold McNair parted company from the Court is made very plain early in his Opinion. According to Sir Arnold McNair, " The method of delimiting territorial waters is an objective one and, while the coastal State is free to make minor adjustments in its maritime frontier when required in the interests of clarity and its practical object, it is not authorised by the law to manipulate its maritime frontier in order to give
61 .Tudge Read also refers generally to a number of cases in Moore's Digest. In addition to the awards already mentioned, Sir Arnold McNair also refers to the writings of Fauchille and Bonfils, to the records of The Hague Codification Conference (1930), and to a letter from the United States Secretary of State to the American representative in Spain in 1881. Generally speaking, having regard to the enormous number of authorities amassed by both sides, all the judgments (apart from Sir Arnold McNair's) are remarkable for the small extent to which they refer to such authorities. 62 Judges Hackworth, McNair, Read and Hsu Mo. Judge Hsu Mo was educated at George Washington University. 63 See an article entitled " The so-called Anglo-American and Continental Schools of Thought in International Law," by Lauterpacht, British Year Book of International Law, 12 (1931), p. 31. For an excellent article, illustrating how greatly the Anglo-American and the Continental systems differ with regard to the questions of proof and how the Court does its best to combine the two systems, see an article entitled " Quelques remarques sur la preuve devant la Cour permanente et la Cour internationale de Justice," by J. F. Lalive, Annuaire suisse de droit international, 7 (1950), p. 77. M. Lalive is First Secretary at the International Court of Justice.
I.C.L.Q.--1 12
178
[VOL. 1
effect to its economic and other social interests. There is an overwhelming consensus of opinion amongst maritime States to the effect that the base line of territorial waters, whatever their extent may be, is a line which follows the coast-line along lowwater mark and not a series of imaginary lines drawn by the coastal State for the purpose of giving effect, even within reasonable limits, to its economic and other social interests and to other subjective factors " (p. 161). Thus, Sir Arnold McNair accepted the coast-line rule in its entirety as a rule of law. He acknowledged that the coastal State might draw base lines across bays and he agreed with the Court that the 10-mile rule for bays has not the authority of a rule of law. Unlike the Court, however, he considered that the Svaerholthavet "in no sense presents the configuration of a bay." 64 Sir Arnold McNair refused to accept the thesis that the coast of northern Norway is so exceptional as to justify an entirely different system from that prescribed by the general law and he pointed out that the United Kingdom had demonstrated with charts before the Court that there was no practical difficulty in applying the coast-line rule, together with the arcs of circles method, to the very similar coast of north-western Scotland-even with a three-mile instead of a fourmile limit.65 Sir Arnold McNair entirely disagreed with the Court's view that the fact that a coast is mountainous is a factor to be considered in assessing the validity of base lines drawn off such a coast. "I am aware of no principle or rule of law," he said, "which allows a wider belt of territorial waters to a country possessing a mountainous coast, such as Norway, than it does to one possessing a flat coast, such as the Netherlands." 66 In finding the Norwegian Decree of 1935 contrary to international law because it " ignores the practical need experienced from time to time of ascertaining, in the manner customary amongst mariners, whether a foreign ship is or is not within the limit of territorial waters," 67 Sir Arnold McNair gave a clear indication of his acceptance of the coast-line rule as a rule of law and of the arcs of circles method as the natural and practical way of applying this rule. As has already been pointed out, Judge Read was firmly of the opinion that "the coast-line rule is an established rule of international law" and that " the so-called ' arcs of circles method ' is nothing more or less than a technical expression used to describe the
64 At p. 167. 65 At p. 170. 66 At p. 171. 67
ibid.
APRIL1952]
179
way in which the coast-line rule has been applied in the international practice of the last century and a half." 68 It was unrealistic to suggest that the northern coast of Norway was " unique or exceptional." One had only to think of parts of the coasts of Scotland, Canada, Alaska and South America.69 It is necessary to consider only very briefly the reasons why the dissenting judges rejected the claim that Norway put forward on historic grounds. Sir Arnold McNair, referring to the Decrees of 1869 and 1889, failed to see how these Decrees affecting a total length of maritime frontier of about 83 miles could be said to have notified to the United Kingdom the existence of a system of straight base lines applicable to the whole Norwegian coast (1830 miles).70 As for the Norwegian system, Sir Arnold McNair held that its first concrete application upon a large scale did not materialise until the 1935 Decree itself.71 Judge Read also considered that the Decrees of 1869 and 1889 were nothing more than " local ad hoc measures " and that " at most, the British Government could be assumed to have had knowledge that there was a possibility that Norway might, at some future time, try out a course in other parts of the coast, similar to that which had been followed " in these two Decrees.72 The evidence showed that " the British Government, notwithstanding repeated requests, was unable to obtain any definite information as to the true nature and character of the Norwegian system " until just before 1935.73
CONCLUSION
No attempt has been made in this article to do other than give a brief outline of the apparent implications of the Court's decision from the legal point of view, and, as the " criteria valid for any determination of the territorial sea " have already been summarised above, it is not necessary to summarise them again here.74 In particular, no attempt has been made-and this is not the place-to assess the economic significance of the judgment. It is in any case too early to tell what will be the effect of the judgment on the future practice of States. In the strict sense the judgment is not a precedent. This is so for the formal reason that international law does not recognise the principle of stare decisis and Article 59 of the Court's Statute expressly provides that "the decision of the Court has no binding
68 See p. 177 above. 69 At p. 193.
70 71
72 73
74 See p. 157 above.
At p. 177. At p. 183. At pp. 200-1. At pp. 204-5.
180
[VOL. 1
force except between the parties and in respect of that particular case." The judgment is also not a precedent in the strict sense for the reason that the Court went out of its way to stress the exceptional features of the case, even to the extent of making those exceptional features one of the bases of its decision. The Court's task was not to redraft the law of territorial waters but to settle the Anglo-Norwegian dispute. This task it has effectively accomplished and, in doing so, it has given further proof of the utility of judicial settlement as a means of resolving international disputes, provided that both sides are prepared to accept the Court's judgment. The Court, however, has done more than settle a single dispute. It may not have provided international lawyers with a ready-made answer to all the problems that may arise in connection with the delimitation of the territorial sea. But it most certainly has upset much previous thought and practice on this subject and, by leaving the law in a somewhat fluid and imprecise state, has provided a stimulus to further thought and action. The Court's judgment may constitute an important turning-point in regard to the law of the sea, but, in the last resort, the future development of that law will depend, not on the decision itself, but on the reception given to it by governments and by international bodies such as the International Law Commission and the General Assembly. It is to these organs that international lawyers must now look for the long-awaited clarification of the law of territorial waters.

The Anglo Norwegian Fisheries Case

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Anglo Norwegian Fisheries Case

Uploaded by

Copyright:

Available Formats

British Institute of International and Comparative Law

International and Comparative Law Quarterly

International and Comparative Law Quarterly

International and Comparative Law Quarterly

International and Comparative Law Quarterly

and Comparative Law Quarterly

15 British and Foreign State Papers, Vol. 94, p. 29.

and Comparative Law Quarterly