ANGLO NORWEGIAN FISHERIES CASE

(UK vs Norway) Year of Decision: 1951.

Background of the case

The United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing
the baseline from which it measured its territorial sea. The United Kingdom argued that customary international law did
not allow the length of a baseline drawn across a bay to be longer than ten miles. Norway argued that its delimitation
method was consistent with general principles of international law.

Findings of the Court

The formation of customary law
The Court referred to (1) positive State practice and (2) lack of contrary State practice as a confirmation of an
existing rule of customary international law . There was no mention of opinio juris in this early judgment.
In the following passage, the Court considered expressed dissent by States regarding a particular practice to be
detrimental to the existence of an alleged general rule. Yet, the Court did not examine further whether these States
adopted a contrary practice because, for example, (1) they were claiming an exception to the rule (see the Nicaragua
jurisprudence) or (2) because they believed that the said rule did not possess the character of customary law.
In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been
adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral
decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-
mile rule has not acquired the authority of a general rule of international law.

The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned ten-mile rule,
the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any
attempt to apply it to the Norwegian coast.
In this case, the Court appears to support the idea that an existing customary law rule would not apply to a State
if (1) it objected to the application of the rule to itself (2) at the initial stages and (3) in a consistent manner. The Anglo
Norwegian Fisheries Case, thus, supports the Asylum Case (Peru vs Colombia) in articulating what we now call the
persistent objector rule.

No objection by other States

The Court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind
Norway because of the latters objections. Next, the Court inquired whether the Norwegian system of delimitation was
nevertheless contrary to international law. To do so, the Court relied on state practice once more.
The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a
period of more than sixty years the United Kingdom Government itself in no way contested it The Court notes that in
respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government
refrained from formulating reservations.

Contrary State practice of Norway

In this case, Norway adopted a contrary practice a practice that was the subject of litigation.

CAYEN CERVANCIA CABIGUEN, MLQU SCHOOL OF LAW

PUBLIC INTERNATIONAL LAW Page 1
 However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice
was not contrary to international law). It emphasized that its practice even if it was a deviation from the general
practice was in conformity with international law.

In its (Norways) view, these rules of international law take into account the diversity of facts and, therefore,
concede that the drawing of base-lines must be adapted to the special conditions obtaining in different regions. In its
view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does not therefore
infringe the general law; it is an adaptation rendered necessary by local conditions.

The Court held that the fact that this consistent and sufficiently long practice took place without any objection to the
practice from other States (until the time of dispute) indicated that these States did not consider the Norwegian
system to be contrary to international law.

CAYEN CERVANCIA CABIGUEN, MLQU SCHOOL OF LAW

PUBLIC INTERNATIONAL LAW Page 2