Mr. G. W. P.
Hart, Second Secretary,
INTERNATIONAL COURT OF JUSTICE
FISHERIES JURISDICTION
UNITED KINGDOM
v.
ICELAND
JUDGEMENT
Return Home
BEFO President: Lachs;
RE: Judges: Forster, Gros, Bengzon, Petren,
Onyeama, Dillard, Ignacio-Pinto, de
Castro, Morozov, Jimenez de Arechaga,
Sir Humphrey Waldock, Nagendra Singh,
Ruda
Perma http://www.worldcourts.com/icj/eng/decisi
Link: ons/1974.07.25_fisheries1.htm
Citatio Fisheries Jurisdiction (U.K. v. Ice.), 1974
n: I.C.J. 3 (July 25)
Repres United Kingdom: Mr. D. H. Anderson,
ented Legal Counsellor in the Foreign and
By: Commonwealth Office, as Agent;
Assisted by
the Rt. Hon. Samuel Silkin Esq., QC, MP,
Attorney-General;
Mr. G. Slynn, Junior Counsel to the
Treasury;
Mr. J. L. Simpson, CMG, TD, Member of
the English Bar;
Professor D. H. N. Johnson, Professor of
International and Air Law in the
University of London, Member of the
English Bar;
Mr. P. G. Langdon-Davies, Member of the
English Bar, Dr. D. W. Bowett, President
of Queens' College, Cambridge, Member
of the English Bar, as Counsel;
Mr. J. Graham, Fisheries Secretary,
Ministry of Agriculture, Fisheries and
Food;
Mr. M. G. de Winton, CBE, MC,
Assistant Solicitor, Law Officers'
Department;
Page 1 of 112
Foreign and Commonwealth Office, as
Advisers.
[p3]
The Court,
composed as above,
delivers the following Judgment:
1. By a letter of 14 April 1972, received in the
Registry of the Court the same day, the Charge
d'Affaires of the British Embassy in the
Netherlands transmitted to the Registrar an
Application instituting proceedings against the
Republic of Iceland in respect of a dispute
concerning the then proposed extension by the
Government of Iceland of its fisheries
jurisdiction.
2. Pursuant to Article 40, paragraph 2, of the
Statute, the Application was at once
communicated to the Government of Iceland. In
accordance with paragraph 3 of that Article, all
other States entitled to appear before the Court
were notified of the Application.
3. By a letter dated 29 May 1972 from the
Minister for Foreign Affairs of Iceland, received
in the Registry on 31 May 1972, the Court was
informed (inter alia) that the Government of
Iceland was not willing to confer jurisdiction on
the Court and would not appoint an Agent. [p 5]
4. On 19 July 1972, the Agent of the United
Kingdom filed in the Registry of the Court a
request for the indication of interim measures of
protection under Article 41 of the Statute and
Article 61 of the Rules of Court adopted on 6
May 1946. By an Order dated 17 August 1972,
the Court indicated certain interim measures of
protection in the case; and by a further Order
dated 12 July 1973, the Court confirmed that
those measures should, subject as therein
mentioned, remain operative until the Court has
given final judgment in the case. By a letter of 21
November 1973, the Agent of the United
Kingdom informed the Court, with reference to
the Orders of 17 August 1972 and 12 July 1973,
of the conclusion on 13 November 1973 of an
Exchange of Notes constituting an interim
agreement "relating to fisheries in the disputed
area, pending a settlement of the substantive
dispute and without prejudice to the legal position
or rights of either government in relation thereto".
Copies of the Exchange of Notes were enclosed
with the letter. A further copy was communicated
to the Court by the Minister for Foreign Affairs
of Iceland under cover of a letter dated 11
January 1974. The Exchange of Notes was
registered with the United Nations Secretariat
under Article 102 of the Charter of the United
Nations.
5. By an Order dated 18 August 1972, the Court,
considering that it was necessary to resolve first
of all the question of its jurisdiction in the case,
decided that the first pleadings should be
addressed to the question of the jurisdiction of the
Court to entertain the dispute, and fixed time-
limits for the filing of a Memorial by the
Government of the United Kingdom and a
Counter-Memorial by the Government of Iceland.
The Memorial of the Government of the United
Kingdom was filed within the time-limit
prescribed, and was communicated to the
Government of Iceland; no Counter-Memorial
was filed by the Government of Iceland. On 5
January 1973, after due notice to the Parties, a
public hearing was held in the course of which
the Court heard the oral argument of counsel for
the United Kingdom on the question of the
Court's jurisdiction; the Government of Iceland
was not represented at the hearing.
6. By a Judgment dated 2 February 1973, the
Court found that it had jurisdiction to entertain
the Application filed by the United Kingdom and
to deal with the merits of the dispute.
7. By an Order dated 15 February 1973 the Court
fixed time-limits for the written proceedings on
the merits, namely 1 August 1973 for the
Memorial of the Government of the United
Kingdom and 15 January 1974 for the Counter-
Memorial of the Government of Iceland. The
Memorial of the Government of the United
Kingdom was filed within the time-limit
prescribed, and was communicated to the
Government of Iceland; no Counter-Memorial
was filed by the Government of Iceland.
Page 2 of 112
8. By a letter from the Registrar dated 17 August
1973 the Agent of the United Kingdom was
invited to submit to the Court any observations
which the Government of the United Kingdom
might wish to present on the question of the
possible joinder of this case with the case
instituted on 5 June 1972 by the Federal Republic
of Germany against the Republic of Iceland
(General List No. 56), and the Agent was
informed that the Court had fixed 30 September
1973 as the time-limit within which any such
observations should be filed. By a letter dated 26
September 1973, the Agent of the United
Kingdom submitted the observations of his
Government on the question of the possible
joinder of the two Fisheries Jurisdiction cases.
The Government of Iceland was informed that the
observations of the United Kingdom on possible
[p 6] joinder had been invited, but did not make
any comments to the Court. On 17 January 1974
the Court decided by nine votes to five not to join
the present proceedings to those instituted by the
Federal Republic of Germany against the
Republic of Iceland. In reaching this decision the
Court took into account the fact that while the
basic legal issues in each case appeared to be
identical, there were differences between the
positions of the two Applicants, and between
their respective submissions, and that joinder
would be contrary to the wishes of the two
Applicants. The Court decided to hold the public
hearings in the two cases immediately following
each other.
9. On 25 and 29 March 1974, after due notice to
the Parties, public hearings were held in the
course of which the Court heard the oral
argument of counsel for the United Kingdom on
the merits of the case; the Government of Iceland
was not represented at the hearings. Various
Members of the Court addressed questions to the
Agent of the United Kingdom both during the
course of the hearings and subsequently, and
replies were given either orally at the hearings or
in writing. Copies of the verbatim record of the
hearings and of the written questions and replies
were transmitted to the Government of Iceland.
10. The Governments of Argentina, Australia,
Ecuador, the Federal Republic of Germany, India,
New Zealand and Senegal requested that the
pleadings and annexed documents in this case
should be made available to them in accordance
with Article 44, paragraph 2, of the Rules of
Court. The Parties having indicated that they had
no objection, it was decided to accede to these
requests. Pursuant to Article 44, paragraph 3, of
the Rules of Court, the pleadings and annexed
documents were, with the consent of the Parties,
made accessible to the public as from the date of
the opening of the oral proceedings.
11. In the course of the written proceedings, the
following submissions were presented on behalf
of the Government of the United Kingdom:
in the Application:
"The United Kingdom asks the Court to adjudge
and declare:
(a) That there is no foundation in international
law for the claim by Iceland to be entitled to
extend its fisheries jurisdiction by establishing a
zone of exclusive fisheries jurisdiction extending
to 50 nautical miles from the baselines
hereinbefore referred to; and that its claim is
therefore invalid; and
(b) that questions concerning the conservation of
fish stocks in the waters around Iceland are not
susceptible in international law to regulation by
the unilateral extension by Iceland of its
exclusive fisheries jurisdiction to 50 nautical
miles from the aforesaid baselines but are matters
that may be regulated, as between Iceland and the
United Kingdom, by arrangements agreed
between those two countries, whether or not
together with other interested countries and
whether in the form of arrangements reached in
accordance with the North-East Atlantic Fisheries
Convention of 24 January 1959, or in the form of
arrangements for collaboration in accordance
with the Resolution on Special Situations relating
to Coastal Fisheries of 26 April 1958, or
otherwise in the form of arrangements agreed
between them that give effect to the continuing
rights and interests of both of them in the
fisheries of the waters in question." [p 7]
in the Memorial on the merits:
". . . the Government of the United Kingdom
submit to the Court that the Court should adjudge
and declare:
(a) that the claim by Iceland to be entitled to a
Page 3 of 112
zone of exclusive fisheries jurisdiction extending
50 nautical miles from baselines around the coast
of Iceland is without foundation in international
law and is invalid;
(b) that, as against the United Kingdom, Iceland
is not entitled unilaterally to assert an exclusive
fisheries jurisdiction beyond the limits agreed to
in the Exchange of Notes of 1961;
(c) that Iceland is not entitled unilaterally to
exclude British fishing vessels from the area of
the high seas beyond the limits agreed to in the
Exchange of Notes of 1961 or unilaterally to
impose restrictions on the activities of such
vessels in that area;
(d) that activities by the Government of Iceland
such as are referred to in Part V of this Memorial,
that is to say, interference by force or the threat of
force with British fishing vessels operating in the
said area of the high seas, are unlawful and that
Iceland is under an obligation to make
compensation therefor to the United Kingdom
(the form and amount of such compensation to be
assessed, failing agreement between the Parties,
in such manner as the Court may indicate); and
(e) that, to the extent that a need is asserted on
conservation grounds, supported by properly
attested scientific evidence, for the introduction
of restrictions on fishing activities in the said area
of the high seas, Iceland and the United Kingdom
are under a duty to examine together in good faith
(either bilaterally or together with other interested
States and either by new arrangements or through
already existing machinery for international
collaboration in these matters such as the North-
East Atlantic Fisheries Commission) the
existence and extent of that need and similarly to
negotiate for the establishment of such a regime
for the fisheries of the area as, having due regard
to the interests of other States, will ensure for
Iceland, in respect of any such restrictions that
are shown to be needed as aforesaid, a
preferential position consistent with its position
as a State specially dependent on those fisheries
and as will also ensure for the United Kingdom a
position consistent with its traditional interest and
acquired rights in and current dependency on
those fisheries."
12. At the hearing of 25 March 1974, the Court
was informed that, in view of the conclusion of
the interim agreement constituted by the
Exchange of Notes of 13 November 1973
referred to above, the Government of the United
Kingdom had decided not to pursue submission
(d) in the Memorial. At the close of the oral
proceedings, written submissions were filed in
the Registry of the Court on behalf of the
Government of the United Kingdom; these
submissions were identical to those contained in
the Memorial, and set out above, save for the
omission of submission (d) and the consequent
re-lettering of submission (e) as (d). [p 8]
13. No pleadings were filed by the Government
of Iceland, which was also not represented at the
oral proceedings, and no submissions were
therefore presented on its behalf. The attitude of
that Government was however defined in the
above-mentioned letter of 29 May 1972 from the
Minister for Foreign Affairs of Iceland, namely
that there was on 14 April 1972 (the date on
which the Application was filed) no basis under
the Statute for the Court to exercise jurisdiction
in the case, and that the Government of Iceland
was not willing to confer jurisdiction on the
Court. After the Court had decided, by its
Judgment of 2 February 1973, that it had
jurisdiction to deal with the merits of the dispute,
the Minister for Foreign Affairs of Iceland, by
letter dated 11 January 1974, informed the Court
that:
"With reference to the time-limit fixed by the
Court for the submission of Counter-Memorials
by the Government of Iceland, I have the honour
to inform you that the position of the Government
of Iceland with regard to the proceedings in
question remains unchanged and, consequently,
no Counter-Memorials will be submitted. At the
same time, the Government of Iceland does not
accept or acquiesce in any of the statements of
facts or allegations or contentions of law
contained in the Memorials filed by the Parties
concerned."
***
14. Iceland has not taken part in any phase of the
present proceedings. By the above-mentioned
letter of 29 May 1972, the Government of Iceland
informed the Court that it regarded the Exchange
of Notes between the Government of Iceland and
the Government of the United Kingdom dated 11
March 1961 as terminated; that in its view there
was no basis under the Statute for the Court to
exercise jurisdiction in the case; that, as it
Page 4 of 112
considered the vital interests of the people of
Iceland to be involved, it was not willing to
confer jurisdiction on the Court in any case
involving the extent of the fishery limits of
Iceland; and that an agent would not be appointed
to represent the Government of Iceland.
Thereafter, the Government of Iceland did not
appear before the Court at the public hearing held
on 1 August 1972 concerning the United
Kingdom's request for the indication of interim
measures of protection; nor did it file any
pleadings or appear before the Court in the
subsequent proceedings concerning the Court's
jurisdiction to entertain the dispute.
Notwithstanding the Court's Judgment of 2
February 1973, in which the Court decided that it
has jurisdiction to entertain the United Kingdom's
Application and to deal with the merits of the
dispute, the Government of Iceland maintained
the same position with regard to the subsequent
proceedings. By its letter of 11 January 1974, it
informed the Court that no Counter-Memorial
would be submitted. Nor did it in fact file any
pleading or appear before the Court at the public
hearings on the merits of the dispute. At these
hearings, counsel for the United Kingdom,
having [p 9] drawn attention to the non-
appearance in Court of any representative of the
Respondent, referred to Article 53 of the Statute,
and concluded by presenting the final
submissions of the United Kingdom on the merits
of the dispute for adjudication by the Court.
15. The Court is thus confronted with the
situation contemplated by Article 53, paragraph
1, of the Statute, that "Whenever one of the
parties does not appear before the Court, or fails
to defend its case, the other party may call upon
the Court to decide in favour of its claim".
Paragraph 2 of that Article, however, also
provides: "The Court must, before doing so,
satisfy itself, not only that it has jurisdiction in
accordance with Articles 36 and 37, but also that
the claim is well founded in fact and law."
16. The present case turns essentially on
questions of international law, and the facts
requiring the Court's consideration in
adjudicating upon the Applicant's claim either are
not in dispute or are attested by documentary
evidence. Such evidence emanates in part from
the Government of Iceland, and has not been
specifically contested, and there does not appear
to be any reason to doubt its accuracy. The
Government of Iceland, it is true, declared in its
above-mentioned letter of 11 January 1974 that
"it did not accept or acquiesce in any of the
statements of fact or allegations or contentions of
law contained in the Memorials of the Parties
concerned" (emphasis added). But such a general
declaration of non-acceptance and non-
acquiescence cannot suffice to bring into question
facts which appear to be established by
documentary evidence, nor can it change the
position of the applicant Party, or of the Court,
which remains bound to apply the provisions of
Article 53 of the Statute.
17. It is to be regretted that the Government of
Iceland has failed to appear in order to plead its
objections or to make its observations against the
Applicant's arguments and contentions in law.
The Court however, as an international judicial
organ, is deemed to take judicial notice of
international law, and is therefore required in a
case falling under Article 53 of the Statute, as in
any other case, to consider on its own initiative
all rules of international law which may be
relevant to the settlement of the dispute. It being
the duty of the Court itself to ascertain and apply
the relevant law in the given circumstances of the
case, the burden of establishing or proving rules
of international law cannot be imposed upon any
of the parties, for the law lies within the judicial
knowledge of the Court. In ascertaining the law
applicable in the present case the Court has had
cognizance not only of the legal arguments
submitted to it by the Applicant but also of those
contained in various communications addressed
to it by the Government of Iceland, and in
documents presented to the Court. The Court has
thus taken account of the legal position of each
Party. Moreover, the Court has been assisted by
the answers given by the Applicant, both orally
and in writing, to questions asked by Members of
the Court during the oral proceedings or
immediately thereafter. It should be stressed that
in applying Article 53 [p 10] of the Statute in this
case, the Court has acted with particular
circumspection and has taken special care, being
faced with the absence of the respondent State.
18. Accordingly, for the purposes of Article 53 of
the Statute, the Court considers that it has before
it the elements necessary to enable it to determine
whether the Applicant's claim is, or is not, well
Page 5 of 112
founded in fact and law, and it is now called upon
to do so. However, before proceeding further the
Court considers it necessary to recapitulate
briefly the history of the present dispute.
***
19. In 1948 the Althing (the Parliament of
Iceland) passed a law entitled "Law concerning
the Scientific Conservation of the Continental
Shelf Fisheries" containing, inter alia, the
following provisions:
"Article 1
The Ministry of Fisheries shall issue regulations
establishing explicitly bounded conservation
zones within the limits of the continental shelf of
Iceland; wherein all fisheries shall be subject to
Icelandic rules and control; Provided that the
conservation measures now in effect shall in no
way be reduced. The Ministry shall further issue
the necessary regulations for the protection of the
fishing grounds within the said zones . ..
Article 2
The regulations promulgated under Article 1 of
the present law shall be enforced only to the
extent compatible with agreements with other
countries to which Iceland is or may become a
party."
20. The 1948 Law was explained by the Icelandic
Government in its expose des motifs submitting
the Law to the Althing, in which, inter alia, it
stated:
"It is well known that the economy of Iceland
depends almost entirely on fishing in the vicinity
of its coasts. For this reason, the population of
Iceland has followed the progressive
impoverishment of fishing grounds with anxiety.
Formerly, when fishing equipment was far less
efficient than it is today, the question appeared in
a different light, and the right of providing for
exclusive rights of fishing by Iceland itself in the
vicinity of her coasts extended much further than
is admitted by the practice generally adopted
since 1900. It seems obvious, however, that
measures to protect fisheries ought to be extended
in proportion to the growing efficiency of fishing
equipment. [p 11]
……………………………………………………
…………………………………………
In so far as the jurisdiction of States over fishing
grounds is concerned, two methods have been
adopted. Certain States have proceeded to a
determination of their territorial waters,
especially for fishing purposes. Others, on the
other hand, have left the question of the territorial
waters in abeyance and have contented
themselves with asserting their exclusive right
over fisheries, independently of territorial waters.
Of these two methods, the second seems to be the
more natural, having regard to the fact that
certain considerations arising from the concept of
'territorial waters' have no bearing upon the
question of an exclusive right to fishing, and that
there are therefore serious drawbacks in
considering the two questions together."
21. Commenting upon Article 2 of the 1948 Law,
the expose des motifs referred to the Anglo-
Danish Convention of 1901, which applied to the
fisheries in the waters around Iceland and
established a 3-mile limit for the exclusive right
of fishery. This Convention, which was subject to
termination by either party on giving two years'
notice, was mentioned as one of the international
agreements with which any regulations issued
under the Law would have to be compatible so
long as the Convention remained in force. In the
following year, on 3 October 1949, the
Government of Iceland gave notice of the
denunciation of the Convention, with the result
that it ceased to be in force after the expiry of the
prescribed two-year period of notice on 3 October
1951. Furthermore, during that interval this Court
had handed down its Judgment in the Fisheries
case (I.C.J. Reports 1951, p. 116) between the
United Kingdom and Norway, in which it had
endorsed the validity of the system of straight
baselines applied by Norway off the Norwegian
coast. Early in 1952, Iceland informed the United
Kingdom of its intention to issue new fishery
regulations in accordance with the 1948 Law.
Then, on 19 March of that year, Iceland issued
Regulations providing for a fishery zone whose
outer limit was to be a line drawn 4 miles to
seaward of straight baselines traced along the
outermost points of the coasts, islands and rocks
and across the opening of bays, and prohibiting
all foreign fishing activities within that zone.
Page 6 of 112
22. The 1952 Fisheries Regulations met with
protests from the United Kingdom, regarding
Iceland's claim to a 4-mile limit and certain
features of its straight-baseline system, which the
United Kingdom considered to go beyond the
principles endorsed by the Court in the Fisheries
case. After various attempts to resolve the
dispute, a modus vivendi was reached in 1956
under which there was to be no further extension
of Iceland's fishery limits pending discussion by
the United Nations General Assembly in that year
of the Report of the International Law
Commission on the Law of the Sea. This
discussion resulted in the convening at Geneva in
1958 of the first United Nations Conference on
the Law of the Sea. [p 12]
23. The 1958 Conference, having failed to reach
agreement either on the limit of the territorial sea
or on the zone of exclusive fisheries, adopted a
resolution requesting the General Assembly to
study the advisability of convening a second Law
of the Sea Conference specifically to deal with
these questions. After the conclusion of the 1958
Conference, Iceland made on 1 June 1958 a
preliminary announcement of its intention to
reserve the right of fishing within an area of 12
miles from the baselines exclusively to Icelandic
fishermen, and to extend the fishing zone also by
modification of the baselines, and then on 30
June 1958 issued new "Regulations concerning
the Fisheries Limits off Iceland". Article 1 of
these proclaimed a new 12-mile fishery limit
around Iceland drawn from new baselines defined
in that Article, and Article 2 prohibited all fishing
activities by foreign vessels within the new
fishery limit. Article 7 of the Regulations
expressly stated that they were promulgated in
accordance with the Law of 1948 concerning
Scientific Conservation of the Continental Shelf
Fisheries.
24. The United Kingdom did not accept the
validity of the new Regulations, and its fishing
vessels continued to fish inside the 12-mile limit,
with the result that a number of incidents
occurred on the fishing grounds. Various attempts
were made to settle the dispute by negotiation but
the dispute remained unresolved. On 5 May 1959
the Althing passed a resolution on the matter in
which, inter alia, it said:
". . . the Althing declares that it considers that
Iceland has an indisputable right to fishery limits
of 12 miles, that recognition should be obtained
of Iceland's right to the entire continental shelf
area in conformity with the policy adopted by the
Law of 1948, concerning the Scientific
Conservation of the Continental Shelf Fisheries
and that fishery limits of less than 12 miles from
base-lines around the country are out of the
question" (emphasis added).
The Resolution thus stressed that the 12-mile
limit asserted in the 1958 Regulations was merely
a further step in Iceland's progress towards its
objective of a fishery zone extending over the
whole of the continental shelf area.
25. After the Second United Nations Conference
on the Law of the Sea, in 1960, the United
Kingdom and Iceland embarked on a series of
negotiations with a view to resolving their
differences regarding the 12-mile fishery limits
and baselines claimed by Iceland in its 1958
Regulations. According to the records of the
negotiations which were drawn up by and have
been brought to the Court's attention by the
Applicant, the Icelandic representatives in their
opening statement called attention to the
proposals submitted to the 1960 Conference on
the Law of the Sea concerning preferential rights
and to the widespread support these proposals
had received, and asserted that Iceland, as a
country in a special situation, "should receive
preferential treatment even beyond 12 [p 13]
miles". Fishery conservation measures outside the
12-mile limit, including the reservation of areas
for Icelandic fishing, were discussed, but while
the United Kingdom representatives recognized
that "Iceland is a 'special situation' country", no
agreement was reached regarding fisheries
outside the 12-mile limit. In these discussions, the
United Kingdom insisted upon receiving an
assurance concerning the future extension of
Iceland's fishery jurisdiction and a
compromissory clause was then included in the
Exchange of Notes which was agreed upon by the
Parties on 11 March 1961.
26. The substantive provisions of the settlement,
which were set out in the principal Note
addressed by the Government of Iceland to the
Government of the United Kingdom, were as
follows:
Page 7 of 112
(1) The United Kingdom would no longer object
to a 12-mile fishery zone around Iceland
measured from the baselines accepted solely for
the purpose of the delimitation of that zone.
(2) The United Kingdom accepted for that
purpose the baselines set out in the 1958
Regulations subject to the modification of four
specified points.
(3) For a period of three years from the date of
the Exchange of Notes, Iceland would not object
to United Kingdom vessels fishing within certain
specified areas and during certain stated months
of the year.
(4) During that three-year period, however,
United Kingdom vessels would not fish within
the outer 6 miles of the 12-mile zone in seven
specified areas.
(5) Iceland "will continue to work for the
implementation of the Althing Resolution of May
5, 1959, regarding the extension of fisheries
jurisdiction around Iceland, but shall give to the
United Kingdom Government six months' notice
of such extension and, in case of a dispute in
relation to such extension, the matter shall, at the
request of either party, be referred to the
International Court of Justice".
In its Note in reply the United Kingdom
emphasized that:
". . . in view of the exceptional dependence of the
Icelandic nation upon coastal fisheries for their
livelihood and economic development, and
without prejudice to the rights of the United
Kingdom under international law towards a third
party, the contents of Your Excellency's Note are
acceptable to the United Kingdom and the
settlement of the dispute has been accomplished
on the terms stated therein".
27. On 14 July 1971 the Government of Iceland
issued a policy statement in which, inter alia, it
was said: [p 14]
"That the agreements on fisheries jurisdiction
with the British and the West Germans be
terminated and that a decision be taken on the
extension of fisheries jurisdiction to 50 nautical
miles from base lines, and that this extension
become effective not later than September 1st,
1972."
This led the Government of the United Kingdom,
in an aide-memoire of 17 July 1971, to draw the
attention of Iceland to the terms of the 1961
Exchange of Notes regarding the right of either
Party to refer to the Court any extension of
Iceland's fishery limits. While reserving all its
rights, the United Kingdom emphasized that the
Exchange of Notes was not open to unilateral
denunciation or termination. This prompted
discussions between the two countries in which
no agreement was reached; in an aide-memoire of
31 August 1971 Iceland stated that it considered
the object and purpose of the provision for
recourse to judicial settlement to have been fully
achieved; and that it now found it essential to
extend further the zone of exclusive fisheries
jurisdiction around its coasts to include the areas
of the sea covering the continental shelf. Iceland
further added that the new limits, the precise
boundaries of which would be furnished at a later
date, would enter into force not later than 1
September 1972; and that it was prepared to hold
further meetings "for the purpose of achieving a
practical solution of the problems involved".
28. The United Kingdom replied on 27
September 1971 and placed formally on record its
view that "such an extension of the fishery zone
ar6und Iceland would have no basis in
international law". It then controverted Iceland's
proposition that the object and purpose of the
provision for recourse to judicial settlement of
disputes relating to an extension of fisheries
jurisdiction had been fully achieved, and again
reserved all its rights under that provision. At the
same time, however, the United Kingdom
expressed its willingness, without prejudice to its
legal position, to enter into furthser exploratory
discussions. In November 1971 the United
Kingdom and Iceland held discussions. At these
talks, the British delegation stated their view that
Iceland's objectives could be achieved by a catch-
limitation agreement. In further talks which took
place in January 1972 the United Kingdom
expressed its readiness to negotiate any
arrangements for the limitation of catches that
scientific evidence might show to be necessary,
and in which any preferential requirements of the
coastal State resulting from its dependence on
fisheries would be recognized. It further
proposed, as an interim measure pending the
elaboration of a multilateral arrangement, to limit
its annual catch of demersal fish in Icelandic
waters to 185,000 tons. The Icelandic
Page 8 of 112
Government was not, however, prepared to
negotiate further on this basis.
29. On 15 February 1972 the Althing adopted a
Resolution reiterating the fundamental policy of
the Icelandic people that the continental shelf [p
15] of Iceland and the superjacent waters were
within the jurisdiction of Iceland. While repeating
that the provisions of the Exchange of Notes of
1961 no longer constituted an obligation for
Iceland, it resolved, inter alia:
"1. That the fishery limits will be extended to 50
miles from base-lines around the country, to
become effective not later than 1 September
1972.
……………………………………………………
…………………………………………
3. That efforts to reach a solution of the problems
connected with the extension be continued
through discussions with the Governments of the
United Kingdom and the Federal Republic of
Germany.
4. That effective supervision of the fish stocks in
the Iceland area be continued in consultation with
marine biologists and that the necessary measures
be taken for the protection of the fish stocks and
specified areas in order to prevent over-fishing . .
."
In an aide-memoire of 24 February 1972 Iceland's
Minister for Foreign Affairs formally notified the
United Kingdom Ambassador in Reykjavik of his
Government's intention to proceed in accordance
with this Resolution.
30. On 14 March 1972, the United Kingdom in an
aide-memoire took note of the decision of Iceland
to issue new Regulations, reiterated its view that
"such an extension of the fishery zone around
Iceland would have no basis in international law",
and rejected Iceland's contention that the
Exchange of Notes was no longer in force.
Moreover, formal notice was also given by the
United Kingdom that an application would
shortly be made to the Court in accordance with
the Exchange of Notes; the British Government
was however willing to continue discussions with
Iceland "in order to agree satisfactory practical
arrangements for the period while the case is
before the International Court of Justice". On 14
April 1972, the United Kingdom filed in the
Registry its Application bringing the present case
before the Court.
31. A series of negotiations between
representatives of the two countries soon
followed and continued throughout May, June
and July 1972, in the course of which various
proposals for catch-limitation, fishing-effort
limitation, area or seasonal restrictions for United
Kingdom vessels were discussed, in the hope of
arriving at practical arrangements for an interim
regime pending the settlement of the dispute. By
12 July there was still no agreement on such an
interim regime, and the Icelandic delegation
announced that new Regulations would be issued
on 14 July 1972 which would exclude all foreign
vessels from fishing within the 50-mile limit after
1 September 1972. The United Kingdom
delegation replied that, while ready to continue
the discussions for an interim regime, they
reserved the United Kingdom's rights in areas
outside the 12-mile [p 16] limit and would seek
an Order for interim measures of protection from
the Court. The new Regulations, issued on 14
July 1972, extended Iceland's fishery limits to 50
miles as from 1 September 1972 and, by Article
2, prohibited all fishing activities by foreign
vessels inside those limits. Consequently, on 19
July 1972, the United Kingdom filed its request
for the indication of interim measures of
protection.
32. On 11 August 1972 the Icelandic Foreign
Ministry sent a Note to the United Kingdom
Embassy in Reykjavik, in which the Icelandic
Government renewed its interest in the
recognition of its preferential rights in the area,
an issue which had already been raised in 1967
by the Icelandic delegation to the North-East
Atlantic Fisheries Commission. In a
memorandum presented at the Fifth Meeting of
that Commission, the Icelandic delegation had
drawn attention to the need for consideration of
the total problem of limiting fishing effort in
Icelandic waters by, for example, a quota system
under which the priority position of Iceland
would be respected in accordance with
internationally recognized principles regarding
the preferential requirements of the coastal State
where the people were overwhelmingly
dependent upon the resources involved for their
livelihood. In the Note of 11 August 1972 it was
recalled that:
Page 9 of 112
"The Icelandic representatives laid main
emphasis on receiving from the British side
positive replies to two fundamental points:
1. Recognition of preferential rights for Icelandic
vessels as to fishing outside the 12-mile limit.
2. That Icelandic authorities should have full
rights and be in a position to enforce the
regulations established with regard to fishing
inside the 50-mile limit."
Thus, while Iceland invoked preferential rights
and the Applicant was prepared to recognize
them, basic differences remained as to the extent
and scope of those rights, and as to the methods
for their implementation and their enforcement.
There can be little doubt that these divergences of
views were some of "the problems connected
with the extension" in respect of which the
Althing Resolution of 15 February 1972 had
instructed the Icelandic Government to make
"efforts to reach a solution".
33. On 17 August 1972 the Court made an Order
for provisional measures in which, inter alia, it
indicated that, pending the Court's final decision
in the proceedings, Iceland should refrain from
taking any measures to enforce the Regulations of
14 July 1972 against United Kingdom vessels
engaged in fishing outside the 12-mile fishery
zone; and that the United Kingdom should limit
the annual catch of its vessels in the "Sea Area of
Iceland" to 170,000 tons. That the United
Kingdom has [p 17] complied with the terms of
the catch-limitation measure indicated in the
Court's Order has not been questioned or
disputed. Iceland, on the other hand,
notwithstanding the measures indicated by the
Court, began to enforce the new Regulations
against United Kingdom vessels soon after they
came into effect on 1 September 1972. Moreover,
when in August 1972 the United Kingdom made
it clear to Iceland that in its view any settlement
between the parties of an interim regime should
be compatible with the Court's Order, Iceland
replied on 30 August that it would not consider
the Order to be binding upon it "since the Court
has no jurisdiction in the matter".
34. By its Judgment of 2 February 1973, the
Court found that it had jurisdiction to entertain
the Application and to deal with the merits of the
dispute. However, even after the handing down of
that Judgment, Iceland persisted in its efforts to
enforce the 50-mile limit against United King-
dom vessels and, as appears from the letter of 11
January 1974 addressed to the Court by the
Minister for Foreign Affairs of Iceland,
mentioned above, it has continued to deny the
Court's competence to entertain the dispute.
***
35. Negotiations for an interim arrangement were,
however, resumed between the two countries, and
were carried on intermittently during 1972 and
1973. In the meantime incidents on the fishing
grounds involving British and Icelandic vessels
were becoming increasingly frequent, and
eventually discussions between the Prime
Ministers of Iceland and the United Kingdom in
1973 led to the conclusion of an "Interim
Agreement in the Fisheries Dispute" constituted
by an Exchange of Notes dated 13 November
1973.
36. The terms of the Agreement were set out in
the Icelandic Note, which began by referring to
the discussions which had taken place and
continued:
"In these discussions the following arrangements
have been worked out for an interim agreement
relating to fisheries in the disputed area, pending
a settlement of the substantive dispute and
without prejudice to the legal position or rights of
either Govern-ment in relation thereto, which are
based on an estimated annual catch of about
130,000 metric tons by British vessels."
The arrangements for the fishing activities of
United Kingdom vessels in the disputed area
were then set out, followed by paragraph 7 which
stipulated:
"The agreement will run for two years from the
present date. Its [p 18] termination will not affect
the legal position of either Government with
respect to the substantive dispute."
The Note ended with the formal proposal,
acceptance of which was confirmed in the United
Kingdom's reply, that the Exchange of Notes
should "constitute an interim agreement between
our two countries".
Page 10 of 112
37. The interim agreement contained no express
reference to the present proceedings before the
Court nor any reference to any waiver, whether
by the United Kingdom or by Iceland, of any
claims in respect of the matters in dispute. On the
contrary, it emphasized that it was an interim
agreement, that it related to fisheries in the
disputed area, that it was concluded pending a
settlement of the substantive dispute, and that it
was without prejudice to the legal position or
rights of either Government in relation to the
substantive dispute. In the light of these saving
clauses, it is clear that the dispute still continues,
that its final settlement is regarded as pending,
and that the Parties meanwhile maintain their
legal rights and claims as well as their respective
stands in the conflict. The interim agreement thus
cannot be described as a "phasing-out" agree-
ment, a term which refers to an arrangement
whereby both parties consent to the progressive
extinction of the fishing rights of one of them
over a limited number of years. Nor could the
interim agreement be interpreted as constituting a
bar to, or setting up any limitation on, the pursuit
by the Applicant of its claim before the Court. On
the face of the text, it was not intended to affect
the legal position or rights of either country in
relation to the present proceedings. That this was
the United Kingdom's understanding of the
interim agreement is confirmed by a statement
made by the British Prime Minister in the House
of Commons on the date of its conclusion: "Our
position at the World Court remains exactly as it
is, and the agreement is without prejudice to the
case of either country in this matter." The
Government of Iceland for its part, in the letter of
11 January 1974 already referred to, stated that:
"This agreement is in further implementation of
the policy of the Government of Iceland to solve
the practical difficulties of the British trawling
industry arising out of the application of the 1948
Law and the Althing Resolution of 14 February
1972, by providing an adjustment during the next
two years. It also contributes to the reduction of
tension which has been provoked by the presence
of British armed naval vessels within the fifty-
mile limit."
38. The interim agreement of 1973, unlike the
1961 Exchange of Notes, does not describe itself
as a "settlement" of the dispute, and, apart from
being of limited duration, clearly possesses the
character of a provisional arrangement adopted
without prejudice to the rights of the Parties, nor
does it provide for the waiver of claims by either
Party in respect of the matters in dispute. The
Applicant has not sought to withdraw or
discontinue its proceedings. The primary duty of
the Court is to discharge [p 19] its judicial
function and it ought not therefore to refuse to
adjudicate merely because the Parties, while
maintaining their legal positions, have entered
into an agreement one of the objects of which
was to prevent the continuation of incidents.
When the Court decided, by its Order of 12 July
1973, to confirm that the provisional measures in
the present case should remain operative until
final judgment was given, it was aware that
negotiations had taken place between the Parties
with a view to reaching an interim arrangement,
and it stated specifically that "the provisional
measures indicated by the Court and confirmed
by the present Order do not exclude an interim
arrangement which may be agreed upon by the
Governments concerned . . ." (Fisheries
Jurisdiction (United Kingdom v. Iceland), Interim
Measures, Order of 12 July 1973, I.C.J. Reports
1973, p. 303, para. 7).
39. In response to questions put by a Member of
the Court, counsel for the United Kingdom
expressed the view that the interim agreement, as
a treaty in force, regulates the relations between
the two countries so far as British fishing is
concerned in the specified areas. The judgment of
the Court, the United Kingdom envisages, will
state the rules of customary international law
between the Parties, defining their respective
rights and obligations, but will not completely
replace with immediate effect the interim
agreement, which will remain a treaty in force. In
so far as the judgment may possibly deal with
matters which are not covered in the interim
agreement, the judgment would, in the
understanding of the United Kingdom, have
immediate effect; the Parties will in any event be
under a duty fully to regulate their relations in
accordance with the terms of the judgment as
soon as the interim agreement ceases to be in
force, i.e., on 13 November 1975 or such earlier
date as the Parties may agree. In the view of the
United Kingdom, the Court's judgment will:
". . . constitute an authoritative statement of the
Page 11 of 112
rights and obligations of the parties under
existing law and may provide a basis for the
negotiation of arrangements to follow those
contained in the Interim Agreement".
40. The Court is of the view that there is no
incompatibility with its judicial function in
making a pronouncement on the rights and duties
of the Parties under existing international law
which would clearly be capable of having a
forward reach; this does not mean that the Court
should declare the law between the Parties as it
might be at the date of expiration of the interim
agreement, a task beyond the powers of any
tribunal. The possibility of the law changing is
ever present: but that cannot relieve the Court
from its obligation to render a judgment on the
basis of the law as it exists at the time of its
decision. In any event it cannot be said that the
issues now before the Court have become without
object; for there is no doubt that the case is one in
which "there exists at [p 20] the time of the
adjudication an actual controversy involving a
conflict of legal interests between the Parties"
(Northern Cameroons, Judgment, I.C.J. Reports
1963, pp. 33-34).
41. Moreover, if the Court were to come to the
conclusion that the interim agreement prevented
it from rendering judgment, or compelled it to
dismiss the Applicant's claim as one without
object, the inevitable result would be to
discourage the making of interim arrangements in
future disputes with the object of reducing
friction and avoiding risk to peace and security.
This would run contrary to the purpose enshrined
in the provisions of the United Nations Charter
relating to the pacific settlement of disputes. It is
because of the importance of these considerations
that the Court has felt it necessary to state at some
length its views on the inferences discussed
above. The Court concludes that the existence of
the interim agreement ought not to lead it to
refrain from pronouncing judgment in the case.
***
42. The question has been raised whether the
Court has jurisdiction to pronounce upon certain
matters referred to the Court in the last paragraph
of the Applicant's final submissions (paragraphs
11 and 12 above) to the effect that the parties are
under a duty to examine together the existence
and extent of the need for restrictions of fishing
activities in Icelandic waters on conservation
grounds and to negotiate for the establishment of
such a regime as will, inter alia, ensure for
Iceland a preferential position consistent with its
position as a State specially dependent on its
fisheries.
43. In its Judgment of 2 February 1973,
pronouncing on the jurisdiction of the Court in
the present case, the Court found "that it has
jurisdiction to entertain the Application filed by
the Government of the United Kingdom of Great
Britain and Northern Ireland on 14 April 1972
and to deal with the merits of the dispute" (I.C.J.
Reports 1973, p. 22, para. 46). The Application
which the Court found it had jurisdiction to
entertain contained a submission under letter (b)
(cf. paragraph 11 above) which in its second part
raised the issues of conservation of fishery
resources and of preferential fishing rights. These
questions, among others, had previously been
discussed in the negotiations between the parties
referred to in paragraphs 27 to 32 above and were
also extensively examined in the pleadings and
hearings on the merits.
44. The Order of the Court indicating interim
measures of protection (Fisheries Jurisdiction
(United Kingdom v. Iceland), Interim Protection,
Order of 17 August 1972, I.C.J. Reports 1972, p.
12) implied that the case before the Court
involved questions of fishery conservation and of
preferential fishing rights since, in indicating a
catch-limitation figure for the Applicant's fishing,
the Court stated that this measure was based on
"the exceptional dependence of the Icelandic
nation upon coastal [p 21] fisheries" and "of the
need for the conservation of fish stocks in the
Iceland area" (loc. cit., pp. 16-17, paras. 23 and
24).
45. In its Judgment of 2 February 1973,
pronouncing on its jurisdiction in the case, the
Court, after taking into account the aforesaid
contentions of the Applicant concerning fishery
conservation and preferential rights, referred
again to "the exceptional dependence of Iceland
on its fisheries and the principle of conservation
of fish stocks" (I.C.J. Reports 1973, p. 20, para.
42). The judicial notice taken therein of the
recognition given by the Parties to the
exceptional dependence of Iceland on its fisheries
Page 12 of 112
and to the need of conservation of fish stocks in
the area clearly implies that such questions are
before the Court.
46. The Order of the Court of 12 July 1973 on the
continuance of interim measures of protection
referred again to catch limitation figures and also
to the question of "related restrictions concerning
areas closed to fishing, number and type of
vessels allowed and forms of control of the
agreed provisions" (I.C.J. Reports 1973, p. 303,
para. 7). Thus the Court took the view that those
questions were within its competence. As the
Court stated in its Order of 17 August 1972, there
must be a connection "under Article 61,
paragraph 1, of the Rules between a request for
interim measures of protection and the original
Application filed with the Court" (I.C.J. Reports
1972, p. 15, para. 12).
47. As to the compromissory clause in the 1961
Exchange of Notes, this gives the Court
jurisdiction with respect to "a dispute in relation
to such extension", i.e., "the extension of fisheries
jurisdiction around Iceland". The present dispute
was occasioned by Iceland's unilateral extension
of its fisheries jurisdiction. However, it would be
too narrow an interpretation of the
compromissory clause to conclude that the
Court's jurisdiction is limited to giving an
affirmative or a negative answer to the question
of whether the extension of fisheries jurisdiction,
as enacted by Iceland on 14 July 1972, is in
conformity with international law. In the light of
the negotiations between the Parties, both in 1960
(paragraph 25 above) and in 1971-1972
(paragraphs 28 to 32 above), in which the
questions of fishery conservation measures in the
area and Iceland's preferential fishing rights were
raised and discussed, and in the light of the
proceedings before the Court, it seems evident
that the dispute between the Parties includes
disagreements as to the extent and scope of their
respective rights in the fishery resources and the
adequacy of measures to conserve them. It must
therefore be concluded that those disagreements
are an element of the "dispute in relation to the
extension of fisheries jurisdiction around
Iceland".
48. Furthermore, the dispute before the Court
must be considered in all its aspects. Even if the
Court's competence were understood to be
confined to the question of the conformity of
Iceland's extension with the rules of international
law, it would still be necessary for the Court to [p
22] determine in that context the role and
function which those rules reserve to the concept
of preferential rights and that of conservation of
fish stocks. Thus, whatever conclusion the Court
may reach in regard to preferential rights and
conservation measures, it is bound to examine
these questions with respect to this case.
Consequently, the suggested restriction on the
Court's competence not only cannot be read into
the terms of the compromissory clause, but would
unduly encroach upon the power of the Court to
take into consideration all relevant elements in
administering justice between the Parties.
***
49. The Applicant has challenged the Regulations
promulgated by the Government of Iceland on 14
July 1972, and since the Court has to pronounce
on this challenge, the ascertainment of the law
applicable becomes necessary. As the Court
stated in the Fisheries case:
"The delimitation of sea areas has always an
international aspect; it cannot be dependent
merely upon the will of the coastal State as
expressed in its municipal law. Although it is true
that the act of delimitation is necessarily a
unilateral act, because only the coastal State is
competent to undertake it, the validity of the
delimitation with regard to other States depends
upon international law." (I.C.J. Reports 1951, p.
132.)
The Court will therefore proceed to the
determination of the existing rules of
international law relevant to the settlement of the
present dispute.
50. The Geneva Convention on the High Seas of
1958, which was adopted "as generally
declaratory of established principles of
international law", defines in Article 1 the term
"high seas" as "all parts of the sea that are not
included in the territorial sea or in the internal
waters of a State". Article 2 then declares that
"The high seas being open to all nations, no State
may validly purport to subject any part of them to
its sovereignty" and goes on to provide that the
freedom of the high seas comprises, inter alia,
Page 13 of 112
both for coastal and non-coastal States, freedom
of navigation and freedom of fishing. The
freedoms of the high seas are however made
subject to the consideration that they "shall be
exercised by all States with reasonable regard to
the interests of other States in their exercise of the
freedom of the high seas".
51. The breadth of the territorial sea was not
defined by the 1958 Convention on the Territorial
Sea and the Contiguous Zone. It is true that
Article 24 of this Convention limits the
contiguous zone to 12 miles "from the baseline
from which the breadth of the territorial sea is
measured". At the 1958 Conference, the main
differences on the breadth [p 23] of the territorial
sea were limited at the time to disagreements as
to what limit, not exceeding 12 miles, was the
appropriate one. The question of the breadth of
the territorial sea and that of the extent of the
coastal State's fishery jurisdiction were left
unsettled at the 1958 Conference. These
questions were referred to the Second Conference
on the Law of the Sea, held in 1960. Furthermore,
the question of the extent of the fisheries
jurisdiction of the coastal State, which had
constituted a serious obstacle to the reaching of
an agreement at the 1958 Conference, became
gradually separated from the notion of the
territorial sea. This was a development which
reflected the increasing importance of fishery
resources for all States.
52. The 1960 Conference failed by one vote to
adopt a text governing the two questions of the
breadth of the territorial sea and the extent of
fishery rights. However, after that Conference the
law evolved through the practice of States on the
basis of the debates and near-agreements at the
Conference. Two concepts have crystallized as
customary law in recent years arising out of the
general consensus revealed at that Conference.
The first is the concept of the fishery zone, the
area in which a State may claim exclusive fishery
jurisdiction independently of its territorial sea;
the extension of that fishery zone up to a 12-mile
limit from the baselines appears now to be
generally accepted. The second is the concept of
preferential rights of fishing in adjacent waters in
favour of the coastal State in a situation of special
dependence on its coastal fisheries, this
preference operating in regard to other States
concerned in the exploitation of the same
fisheries, and to be implemented in the way
indicated in paragraph 57 below.
53. In recent years the question of extending the
coastal State's fisheries jurisdiction has come
increasingly to the forefront. The Court is aware
that a number of States has asserted an extension
of fishery limits. The Court is also aware of
present endeavours, pursued under the auspices
of the United Nations, to achieve in a third
Conference on the Law of the Sea the further
codification and progressive development of this
branch of the law, as it is of various proposals
and preparatory documents produced in this
framework, which must be regarded as
manifestations of the views and opinions of
individual States and as vehicles of their
aspirations, rather than as expressing principles of
existing law. The very fact of convening the third
Conference on the Law of the Sea evidences a
manifest desire on the part of all States to proceed
to the codification of that law on a universal
basis, including the question of fisheries and
conservation of the living resources of the sea.
Such a general desire is understandable since the
rules of international maritime law have been the
product of mutual accommodation,
reasonableness and co-operation. So it was in the
past, and so it necessarily is today. In the
circumstances, the Court, as a court of law,
cannot render judgment sub [p 24] specie legis
ferendae, or anticipate the law before the
legislator has laid it down.
54. The concept of a 12-mile fishery zone,
referred to in paragraph 52 above, as a tertium
genus between the territorial sea and the high
seas, has been accepted with regard to Iceland in
the substantive provisions of the 1961 Exchange
of Notes, and the United Kingdom has also
applied the same fishery limit to its own coastal
waters since 1964; therefore this matter is no
longer in dispute between the Parties. At the same
time, the concept of preferential rights, a notion
that necessarily implies the existence of other
legal rights in respect of which that preference
operates, has been admitted by the Applicant to
be relevant to the solution of the present dispute.
Moreover, the Applicant has expressly
recognized Iceland's preferential rights in the
disputed waters and at the same time has invoked
its own historic fishing rights in these same
waters, on the ground that reasonable regard must
Page 14 of 112
be had to such traditional rights by the coastal
State, in accordance with the generally
recognized principles embodied in Article 2 of
the High Seas Convention. If, as the Court
pointed out in its dictum in the Fisheries case,
cited in paragraph 49 above, any national
delimitation of sea areas, to be opposable to other
States, requires evaluation in terms of the existing
rules of international law, then it becomes
necessary for the Court, in its examination of the
Icelandic fisheries Regulations, to take those
elements into consideration as well. Equally it
has necessarily to take into account the provisions
of the Exchange of Notes of 1961 which govern
the relations between the Parties with respect to
Iceland's fishery limits. The said Exchange of
Notes, which was concluded within the
framework of the existing provisions of the law
of the sea, was held by the Court, in its Judgment
of 2 February 1973, to be a treaty which is valid
and in force.
***
55. The concept of preferential rights for the
coastal State in a situation of special dependence
on coastal fisheries originated in proposals
submitted by Iceland at the Geneva Conference
of 1958. Its delegation drew attention to the
problem which would arise when, in spite of
adequate fisheries conservation measures, the
yield ceased to be sufficient to satisfy the
requirements of all those who were interested in
fishing in a given area. Iceland contended that in
such a case, when a catch-limitation becomes
necessary, special consideration should be given
to the coastal State whose population is
overwhelmingly dependent on the fishing
resources in its adjacent waters.
56. An Icelandic proposal embodying these ideas
failed to obtain the majority required, but a
resolution was adopted at the 1958 Conference [p
25] concerning the situation of countries or
territories whose people are overwhelmingly
dependent upon coastal fisheries for their
livelihood or economic development. This
resolution, after "recognizing that such situations
call for exceptional measures befitting particular
needs" recommended that:
"... where, for the purpose of conservation, it
becomes necessary to limit the total catch of a
stock or stocks of fish in an area of the high seas
adjacent to the territorial sea of a coastal State,
any other States fishing in that area should
collaborate with the coastal State to secure just
treatment of such situation, by establishing
agreed measures which shall recognize any
preferential requirements of the coastal State
resulting from its dependence upon the fishery
concerned while having regard to the interests of
the other States".
The resolution further recommended that
"appropriate conciliation and arbitral procedures
shall be established for the settlement of any
disagreement".
57. At the Plenary Meetings of the 1960
Conference the concept of preferential rights was
embodied in a joint amendment presented by
Brazil, Cuba and Uruguay which was
subsequently incorporated by a substantial vote
into a joint United States-Canadian proposal
concerning a 6-mile territorial sea and an
additional 6-mile fishing zone, thus totalling a
12-mile exclusive fishing zone, subject to a
phasing-out period. This amendment provided,
independently of the exclusive fishing zone, that
the coastal State had:
". . . the faculty of claiming preferential fishing
rights in any area of the high seas adjacent to its
exclusive fishing zone when it is scientifically
established that a special situation or condition
makes the exploitation of the living resources of
the high seas in that area of fundamental
importance to the economic development of the
coastal State or the feeding of its population".
It also provided that:
"A special situation or condition may be deemed
to exist when:
(a) The fisheries and the economic development
of the coastal State or the feeding of its
population are so manifestly interrelated that, in
consequence, that State is greatly dependent on
the living resources of the high seas in the area in
respect of which preferential fishing is being
claimed;
(b) It becomes necessary to limit the total catch of
a stock or stocks of fish in such areas . . ."
Page 15 of 112
The contemporary practice of States leads to the
conclusion that the [p 26] preferential rights of
the coastal State in a special situation are to be
implemented by agreement between the States
concerned, either bilateral or multilateral, and, in
case of disagreement, through the means for the
peaceful settlement of disputes provided for in
Article 33 of the Charter of the United Nations. It
was in fact an express condition of the
amendment referred to above that any other State
concerned would have the right to request that a
claim made by a coastal State should be tested
and determined by a special commission on the
basis of scientific criteria and of evidence
presented by the coastal State and other States
concerned. The commission was to be
empowered to determine, for the period of time
and under the limitations that it found necessary,
the preferential rights of the coastal State, "while
having regard to the interests of any other State or
States in the exploitation of such stock or stocks
of fish".
58. State practice on the subject of fisheries
reveals an increasing and widespread acceptance
of the concept of preferential rights for coastal
States, particularly in favour of countries or
territories in a situation of special dependence on
coastal fisheries. Both the 1958 Resolution and
the 1960 joint amendment concerning preferential
rights were approved by a large majority of the
Conferences, thus showing overwhelming
support for the idea that in certain special
situations it was fair to recognize that the coastal
State had preferential fishing rights. After these
Conferences, the preferential rights of the coastal
State were recognized in various bilateral and
multilateral international agreements. The Court's
attention has been drawn to the practice in this
regard of the North-West and North-East Atlantic
Fisheries Commissions, of which 19 maritime
States altogether, including both Parties, are
members; its attention has also been drawn to the
Arrangement Relating to Fisheries in Waters
Surrounding the Faroe Islands, signed at
Copenhagen on 18 December 1973 on behalf of
the Governments of Belgium, Denmark, France,
the Federal Republic of Germany, Norway,
Poland and the United Kingdom, and to the
Agreement on the Regulation of the Fishing of
North-East Arctic (Arcto-Norwegian) Cod,
signed on 15 March 1974 on behalf of the
Governments of the United Kingdom, Norway
and the Union of Soviet Socialist Republics. Both
the aforesaid agreements, in allocating the annual
shares on the basis of the past performance of the
parties in the area, assign an additional share to
the coastal State on the ground of its preferential
right in the fisheries in its adjacent waters. The
Faroese agreement takes expressly into account in
its preamble "the exceptional dependence of the
Faroese economy on fisheries" and recognizes
"that the Faroe Islands should enjoy preference in
waters surrounding the Faroe Islands".
59. There can be no doubt of the exceptional
dependence of Iceland on its fisheries. That
exceptional dependence was explicitly recognized
by the Applicant in the Exchange of Notes of 11
March 1961, and the Court [p 27] has also taken
judicial notice of such recognition, by declaring
that it is "necessary to bear in mind the
exceptional dependence of the Icelandic nation
upon coastal fisheries for its livelihood and
economic development" (I.C.J. Reports 1972, p.
16, para. 23).
60. The preferential rights of the coastal State
come into play only at the moment when an
intensification in the exploitation of fishery
resources makes it imperative to introduce some
system of catch-limitation and sharing of those
resources, to preserve the fish stocks in the
interests of their rational and economic
exploitation. This situation appears to have been
reached in the present case. In regard to the two
main demersal species concerned—cod and
haddock—the Applicant has shown itself aware
of the need for a catch-limitation which has
become indispensable in view of the
establishment of catch-limitations in other
regions of the North Atlantic. If a system of
catch-limitation were not established in the
Icelandic area, the fishing effort displaced from
those other regions might well be directed
towards the unprotected grounds in that area.
***
61. The Icelandic regulations challenged before
the Court have been issued and applied by the
Icelandic authorities as a claim to exclusive rights
thus going beyond the concept of preferential
rights. Article 2 of the Icelandic Regulations of
14 July 1972 states:
Page 16 of 112
"Within the fishery limits all fishing activities by
foreign vessels shall be prohibited in accordance
with the provisions of Law No. 33 of 19 June
1922, concerning Fishing inside the Fishery
Limits."
Article 1 of the 1922 Law provides: "Only
Icelandic citizens may engage in fishing in the
territorial waters of Iceland, and only Icelandic
boats or ships may be used for such fishing." The
language of the relevant government regulations
indicates that their object is to establish an
exclusive fishery zone, in which all fishing by
vessels registered in other States, including the
United Kingdom, would be prohibited. The mode
of implementation of the regulations, carried out
by Icelandic governmental authorities vis-à-vis
United Kingdom fishing vessels, before the 1973
interim agreement, and despite the Court's interim
measures, confirms this interpretation.
62. The concept of preferential rights is not
compatible with the exclusion of all fishing
activities of other States. A coastal State entitled
to preferential rights is not free, unilaterally and
according to its own uncontrolled discretion, to
determine the extent of those rights. The charac-
terization of the coastal State's rights as
preferential implies a certain priority, but cannot
imply the extinction of the concurrent rights of
other [p 28] States, and particularly of a State
which, like the Applicant, has for many years
been engaged in fishing in the waters in question,
such fishing activity being important to the
economy of the country concerned. The coastal
State has to take into account and pay regard to
the position of such other States, particularly
when they have established an economic
dependence on the same fishing grounds.
Accordingly, the fact that Iceland is entitled to
claim preferential rights does not suffice to justify
its claim unilaterally to exclude the Applicant's
fishing vessels from all fishing activity in the
waters beyond the limits agreed to in the 1961
Exchange of Notes.
***
63. In this case, the Applicant has pointed out that
its vessels have been fishing in Icelandic waters
for centuries and that they have done so in a
manner comparable with their present activities
for upwards of 50 years. Published statistics
indicate that from 1920 onwards, fishing of
demersal species by United Kingdom vessels in
the disputed area has taken place on a continuous
basis from year to year, and that, except for the
period of the Second World War, the total catch
of those vessels has been remarkably steady.
Similar statistics indicate that the waters in
question constitute the most important of the
Applicant's distant-water fishing grounds for
demersal species.
64. The Applicant further states that in view of
the present situation of fisheries in the North
Atlantic, which has demanded the establishment
of agreed catch-limitations of cod and haddock in
various areas, it would not be possible for the
fishing effort of United Kingdom vessels
displaced from the Icelandic area to be diverted at
economic levels to other fishing grounds in the
North Atlantic. Given the lack of alternative
fishing opportunity, it is further contended, the
exclusion of British fishing vessels from the
Icelandic area would have very serious adverse
con-sequences, with immediate results for the
affected vessels and with damage extending over
a wide range of supporting and related industries.
It is pointed out in particular that wide-spread
unemployment would be caused among all
sections of the British fishing industry and in
ancillary industries and that certain ports—Hull,
Grimsby and Fleetwood— specially reliant on
fishing in the Icelandic area, would be seriously
affected.
65. Iceland has for its part admitted the existence
of the Applicant's historic and special interests in
the fishing in the disputed waters. The Exchange
of Notes as a whole and in particular its final
provision requiring Iceland to give advance
notice to the United Kingdom of any extension of
its fishery limits impliedly acknowledged the
existence of United Kingdom fishery interests in
the waters adjacent to the 12-mile limit. The
discussions which have taken place between the
two countries also imply an acknowledgement by
Iceland of the existence of such [p 29] interests.
Furthermore, the Prime Minister of Iceland stated
on 9 November 1971:
". . . the British have some interests to protect in
this connection. For a long time they have been
fishing in Icelandic waters . .. The well-being of
specific British fishing towns may nevertheless to
some extent be connected with the fisheries in
Page 17 of 112
Icelandic waters . .."
66. Considerations similar to those which have
prompted the recognition of the preferential rights
of the coastal State in a special situation apply
when coastal populations in other fishing States
are also dependent on certain fishing grounds. In
both instances the economic dependence and the
livelihood of whole communities are affected.
Not only do the same considerations apply, but
the same interest in conservation exists. In this
respect the Applicant has recognized that the
conservation and efficient exploitation of the fish
stocks in the Iceland area are of importance not
only to Iceland but also to the United Kingdom.
67. The provisions of the Icelandic Regulations
of 14 July 1972 and the manner of their
implementation disregard the fishing rights of the
Applicant. Iceland's unilateral action thus
constitutes an infringement of the principle
enshrined in Article 2 of the 1958 Geneva
Convention on the High Seas which requires that
all States, including coastal States, in exercising
their freedom of fishing, pay reasonable regard to
the interests of other States. It also disregards the
rights of the Applicant as they result from the
Exchange of Notes of 1961. The Applicant is
therefore justified in asking the Court to give all
necessary protection to its own rights, while at
the same time agreeing to recognize Iceland's
preferential position. Accordingly, the Court is
bound to conclude that the Icelandic Regulations
of 14 July 1972 establishing a zone of exclusive
fisheries jurisdiction extending to 50 nautical
miles from baselines around the coast of Iceland,
are not opposable to the United Kingdom, and the
latter is under no obligation to accept the
unilateral termination by Iceland of United
Kingdom fishery rights in the area.
68. The findings stated by the Court in the
preceding paragraphs suffice to provide a basis
for the decision of the present case, namely: that
Iceland's extension of its exclusive fishery
jurisdiction beyond 12 miles is not opposable to
the United Kingdom; that Iceland may on the
other hand claim preferential rights in the
distribution of fishery resources in the adjacent
waters; that the United Kingdom also has
established rights with respect to the fishery
resources in question; and that the principle of
reasonable regard for the interests of other States
enshrined in Article 2 of the Geneva Convention
on the High Seas of 1958 requires Iceland and the
United Kingdom to have due regard to each
other's interests, and to the interests of other
States, in those resources. [p30]
***
69. It follows from the reasoning of the Court in
this case that in order to reach an equitable
solution of the present dispute it is necessary that
the preferential fishing rights of Iceland, as a
State specially dependent on coastal fisheries, be
reconciled with the traditional fishing rights of
the Applicant. Such a reconciliation cannot be
based, however, on a phasing-out of the
Applicant's fishing, as was the case in the 1961
Exchange of Notes in respect of the 12-mile
fishery zone. In that zone, Iceland was to exercise
exclusive fishery rights while not objecting to
continued fishing by the Applicant's vessels
during a phasing-out period. In adjacent waters
outside that zone, however, a similar extinction of
rights of other fishing States, particularly when
such rights result from a situation of economic
dependence and long-term reliance on certain
fishing grounds, would not be compatible with
the notion of preferential rights as it was
recognized at the Geneva Conferences of 1958
and 1960, nor would it be equitable. At the 1960
Conference, the concept of preferential rights of
coastal States in a special situation was
recognized in the joint amendment referred to in
paragraph 57 above, under such limitations and to
such extent as is found "necessary by reason of
the dependence of the coastal State on the stock
or stocks of fish, while having regard to the
interests of any other State or States in the
exploitation of such stock or stocks of fish". The
reference to the interests of other States in the
exploitation of the same stocks clearly indicates
that the preferential rights of the coastal State and
the established rights of other States were
considered as, in principle, continuing to co-exist.
70. This is not to say that the preferential rights of
a coastal State in a special situation are a static
concept, in the sense that the degree of the coastal
State's preference is to be considered as fixed for
ever at some given moment. On the contrary, the
preferential rights are a function of the
exceptional dependence of such a coastal State on
the fisheries in adjacent waters and may,
Page 18 of 112
therefore, vary as the extent of that dependence
changes. Furthermore, as was expressly
recognized in the 1961 Exchange of Notes, a
coastal State's exceptional dependence on
fisheries may relate not only to the livelihood of
its people but to its economic development. In
each case, it is essentially a matter of appraising
the dependence of the coastal State on the
fisheries in question in relation to that of the other
State concerned and of reconciling them in as
equitable a manner as is possible.
71. In view of the Court's finding (paragraph 67
above) that the Icelandic Regulations of 14 July
1972 are not opposable to the United Kingdom
for the reasons which have been stated, it follows
that the Government of Iceland is not in law
entitled unilaterally to exclude United Kingdom
fishing vessels from sea areas to seaward of the
limits agreed to in the 1961 Exchange of Notes or
unilaterally to impose restrictions on their
activities in such areas. But the matter does not
end there; [p 31] as the Court has indicated,
Iceland is, in view of its special situation, entitled
to preferential rights in respect of the fish stocks
of the waters adjacent to its coasts. Due
recognition must be given to the rights of both
Parties, namely the rights of the United Kingdom
to fish in the waters in dispute, and the
preferential rights of Iceland. Neither right is an
absolute one: the preferential rights of a coastal
State are limited according to the extent of its
special dependence on the fisheries and by its
obligation to take account of the rights of other
States and the needs of conservation; the
established rights of other fishing States are in
turn limited by reason of the coastal State's
special dependence on the fisheries and its own
obligation to take account of the rights of other
States, including the coastal State, and of the
needs of conservation.
72. It follows that even if the Court holds that
Iceland's extension of its fishery limits is not
opposable to the Applicant, this does not mean
that the Applicant is under no obligation to
Iceland with respect to fishing in the disputed
waters in the 12-mile to 50-mile zone. On the
contrary, both States have an obligation to take
full account of each others rights and of any
fishery conservation measures the necessity of
which is shown to exist in those waters. It is one
of the advances in maritime international law,
resulting from the intensification of fishing, that
the former laissez-faire treatment of the living
resources of the sea in the high seas has been
replaced by a recognition of a duty to have due
regard to the rights of other States and the needs
of conservation for the benefit of all.
Consequently, both Parties have the obligation to
keep under review the fishery resources in the
disputed waters and to examine together, in the
light of scientific and other available information,
the measures required for the conservation and
development, and equitable exploitation, of those
resources, taking into account any international
agreement in force between them, such as the
North-East Atlantic Fisheries Convention of 24
January 1959, as well as such other agreements as
may be reached in the matter in the course of
further negotiation.
***
73. The most appropriate method for the solution
of the dispute is clearly that of negotiation. Its
objective should be the delimitation of the rights
and interests of the Parties, the preferential rights
of the coastal State on the one hand and the rights
of the Applicant on the other, to balance and
regulate equitably questions such as those of
catch-limitation, share allocations and "related
restrictions concerning areas closed to fishing,
number and type of vessels allowed and forms of
control of the agreed provisions" (Fisheries
Jurisdiction (United Kingdom v. Iceland), Interim
Measures, Order of 12 July 1973, I.C.J. Reports
1973, p. 303, [p 32] para. 7). This necessitates
detailed scientific knowledge of the fishing
grounds. It is obvious that the relevant
information and expertise would be mainly in the
possession of the Parties. The Court would, for
this reason, meet with difficulties if it were itself
to attempt to lay down a precise scheme for an
equitable adjustment of the rights involved. It is
thus obvious that both in regard to merits and to
jurisdiction the Court only pronounces on the
case which is before it and not on any
hypothetical situation which might arise in the
future.
74. It is implicit in the concept of preferential
rights that negotiations are required in order to
define or delimit the extent of those rights, as was
already recognized in the 1958 Geneva
Resolution on Special Situations relating to
Page 19 of 112
Coastal Fisheries, which constituted the starting
point of the law on the subject. This Resolution
provides for the establishment, through
collaboration between the coastal State and any
other State fishing in the area, of agreed measures
to secure just treatment of the special situation.
75. The obligation to negotiate thus flows from
the very nature of the respective rights of the
Parties; to direct them to negotiate is therefore a
proper exercise of the judicial function in this
case. This also corresponds to the Principles and
provisions of the Charter of the United Nations
concerning peaceful settlement of disputes. As
the Court stated in the North Sea Continental
Shelf cases:
". . . this obligation merely constitutes a special
application of a principle which underlies all
international relations, and which is moreover
recognized in Article 33 of the Charter of the
United Nations as one of the methods for the
peaceful settlement of international disputes"
(I.C.J. Reports 1969, p. 47, para. 86).
76. In this case negotiations were initiated by the
Parties from the date when Iceland gave notice of
its intention to extend its fisheries jurisdiction,
but these negotiations reached an early deadlock,
and could not come to any conclusion;
subsequently, further negotiations were directed
to the conclusion of the interim agreement of 13
November 1973. The obligation to seek a
solution of the dispute by peaceful means, among
which negotiations are the most appropriate to
this case, has not been eliminated by that interim
agreement. The question has been raised,
however, on the basis of the deletion of a
sentence which had been proposed by the United
Kingdom in the process of elaboration of the text,
whether the parties agreed to wait for the
expiration of the term provided for in the interim
agreement without entering into further
negotiations. The deleted sentence, which would
have appeared in paragraph 7 of the 1973
Exchange of Notes, read: "The Governments will
reconsider the position before that term expires
unless they have in the meantime agreed to a
settlement of the substantive dispute."
77. The Court cannot accept the view that the
deletion of this sentence which concerned
renegotiation of the interim regime warrants the
in-[p 33]ference that the common intention of the
Parties was to be released from negotiating in
respect of the basic dispute over Iceland's
extension to a 50-mile limit throughout the whole
period covered by the interim agreement. Such an
intention would not correspond to the attitude
taken up by the Applicant in these proceedings, in
which it has asked the Court to adjudge and
declare that the Parties are under a duty to
negotiate a regime for the fisheries in the area.
Nor would an interpretation of this kind, in
relation to Iceland's intention, correspond to the
clearly stated policy of the Icelandic authorities to
continue negotiations on the basic problems
relating to the dispute, as emphasized by
paragraph 3 of the Althing Resolution of 15
February 1972, referred to earlier, which reads:
"That efforts to reach a solution of the problems
connected with the extension be continued
through discussions with the Governments of the
United Kingdom and the Federal Republic of
Germany." Taking into account that the interim
agreement contains a definite date for its expira-
tion, and in the light of what has been stated in
paragraph 75 above, it would seem difficult to
attribute to the Parties an intention to wait for that
date and for the reactivation of the dispute, with
all the possible friction it might engender, before
one of them might require the other to attempt a
peaceful settlement through negotiations. At the
same time, the Court must add that its Judgment
obviously cannot preclude the Parties from
benefiting from any subsequent developments in
the pertinent rules of international law.
78. In the fresh negotiations which are to take
place on the basis of the present Judgment, the
Parties will have the benefit of the above
appraisal of their respective rights, and of certain
guidelines defining their scope. The task before
them will be to conduct their negotiations on the
basis that each must in good faith pay reasonable
regard to the legal rights of the other in the waters
around Iceland outside the 12-mile limit, thus
bringing about an equitable apportionment of the
fishing resources based on the facts of the
particular situation, and having regard to the
interests of other States which have established
fishing rights in the area. It is not a matter of
finding simply an equitable solution, but an
equitable solution derived from the applicable
law. As the Court stated in the North Sea
Continental Shelf cases:
Page 20 of 112
". . . it is not a question of applying equity simply
as a matter of abstract justice, but of applying a
rule of law which itself requires the application of
equitable principles" (I.C.J. Reports 1969, p. 47,
para. 85).
***
79. For these reasons,
The Court,
by ten votes to four,
(1) finds that the Regulations concerning the
Fishery Limits off Iceland (Reglugerb urn
fiskveibilandhelgi Islands) promulgated by the
Government of Iceland on 14 July 1972 and
constituting a unilateral extension of the
exclusive fishing rights of Iceland to 50 nautical
miles from the baselines specified therein are not
opposable to the Government of the United
Kingdom;
(2) finds that, in consequence, the Government of
Iceland is not entitled unilaterally to exclude
United Kingdom fishing vessels from areas
between the fishery limits agreed to in the
Exchange of Notes of 11 March 1961 and the
limits specified in the Icelandic Regulations of 14
July 1972, or unilaterally to impose restrictions
on the activities of those vessels in such areas;
by ten votes to four,
(3) holds that the Government of Iceland and the
Government of the United Kingdom are under
mutual obligations to undertake negotiations in
good faith for the equitable solution of their
differences concerning their respective fishery
rights in the areas specified in subparagraph 2;
(4) holds that in these negotiations the Parties are
to take into account, inter alia:
(a) that in the distribution of the fishing resources
in the areas specified in subparagraph 2 Iceland is
entitled to a preferential share to the extent of the
special dependence of its people upon the
fisheries in the seas around its coasts for their
livelihood and economic development;
(b) that by reason of its fishing activities in the
areas specified in subparagraph 2, the United
Kingdom also has established rights in the fishery
resources of the said areas on which elements of
its people depend for their livelihood and
economic well-being;
(c) the obligation to pay due regard to the
interests of other States in the conservation and
equitable exploitation of these resources;
(d) that the above-mentioned rights of Iceland
and of the United Kingdom should each be given
effect to the extent compatible with the
conservation and development of the fishery
resources in the areas specified in subparagraph 2
and with the interests of other States in their
conservation and equitable exploitation;
(e) their obligation to keep under review those
resources and to examine together, in the light of
scientific and other available information, such
measures as may be required for the
conser[p35]vation and development, and
equitable exploitation, of those resources, making
use of the machinery established by the North-
East Atlantic Fisheries Convention or such other
means as may be agreed upon as a result of
international negotiations.
Done in English, and in French, the English text
being authoritative, at the Peace Palace, The
Hague, this twenty-fifth day of July, one
thousand nine hundred and seventy-four, in three
copies, of which one will be placed in the
archives of the Court and the others transmitted
to the Government of the United Kingdom of
Great Britain and Northern Ireland and to the
Government of the Republic of Iceland
respectively.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
PRESIDENT LACHS MAKES THE
FOLLOWING DECLARATION:
I am in agreement with the reasoning and
conclusions of the Court, and since the Judgment
speaks for and stands by itself, I would not feel it
appropriate to make any gloss upon it.
JUDGE IGNACIO-PINTO MAKES THE
FOLLOWING DECLARATION:
Page 21 of 112
To my regret, I have been obliged to vote against
the Court's Judgment. However, to my mind my
negative vote does not, strictly speaking, signify
opposition, since in a different context I would
certainly have voted in favour of the process
which the Court considered it should follow to
arrive at its decision. In my view that decision is
devoted to fixing the conditions for exercise of
preferential rights, for conservation of fish
species, and historic rights, rather than to
responding to the primary claim of the Applicant,
which is for a statement of the law on a specific
point.
I would have all the more willingly endorsed the
concept of preferential rights inasmuch as the
Court has merely followed its own decision in the
Fisheries case.
It should be observed that the Applicant has
nowhere sought a decision from the Court on a
dispute between itself and Iceland on the subject
of the preferential rights of the coastal State, the
conservation of fish species, or historic rights—
this is apparent throughout the elaborate [p 36]
reasoning of the Judgment. It is obvious that
considerations relating to these various points,
dealt with at length in the Judgment, are not
subject to any dispute between the Parties. There
is no doubt that, after setting out the facts and the
grounds relied on in support of its case, the
Applicant has asked the Court only for a decision
on the dispute between itself and Iceland, and to
adjudge and declare:
". . . that there is no foundation in international
law for the claim by Iceland to be entitled to
extend its fisheries jurisdiction by establishing a
zone of exclusive fisheries jurisdiction extending
to 50 nautical miles from the baselines
hereinbefore referred to; and that its claim is
therefore invalid" (I.C.J. Reports 1973, p. 5, para.
8 (a)).
This is clear and precise, and all the other points
in the submissions are only ancillary or
consequential to this primary claim. But in
response to this basic claim, which was
extensively argued by the Applicant both in its
Memorial and orally, and which was retained in
its final submissions, the Court, by means of a
line of reasoning which it has endeavoured at
some length to justify, has finally failed to give
any positive answer.
The Court has deliberately evaded the question
which was placed squarely before it in this case,
namely whether Iceland's claims are in
accordance with the rules of international law.
Having put this question on one side, it constructs
a whole system of reasoning in order ultimately
to declare that the Regulations issued by the
Government of Iceland on 14 July 1972 and
"constituting a unilateral extension of the
exclusive fishing rights of Iceland to 50 nautical
miles from the baselines specified therein are not
opposable to the Government of the United
Kingdom".
In my view, the whole problem turns on this,
since this claim is based upon facts which, at
least under present-day law and in the practice of
the majority of States, are flagrant violations of
existing international conventions. It should be
noted that Iceland does not deny them. Now the
facts complained of are evident, they undoubtedly
relate to the treaty which binds the States which
are Parties, for the Exchange of Notes of 11
March 1961 amounts to such an instrument. For
the Court to consider, after having dealt with the
Applicant's fundamental claim in relation to
international law, that account should be taken of
Iceland's exceptional situation and the vital
interests of its population, with a view to drawing
inspiration from equity and to devising a solution
for the dispute, would have been the normal
course to be followed, the more so since the
Applicant supports it in its final submissions. But
it cannot be admitted that because of its special
situation Iceland can ipso facto be exempted from
the obligation to respect the international
commitments into which it has entered. By not
giving an unequivocal answer on that principal
claim, the Court has failed to perform the act of
justice requested of it.
For what is one to say of the actions and
behaviour of Iceland which have resulted in its
being called upon to appear before the Court? Its
[p 37] refusal to respect the commitment it
accepted in the Exchange of Notes of 11 March
1961, to refer to the International Court of Justice
any dispute which might arise on an extension of
its exclusive fisheries zone, which was in fact
foreseen by the Parties, beyond 12 nautical miles,
is not this unjustified refusal a breach of
Page 22 of 112
international law?
In the same way, when—contrary to what is
generally recognized by the majority of States in
the 1958 Geneva Convention, in Article 2, where
it is clearly specified that there is a zone of high
seas which is res communis—Iceland unilaterally
decides, by means of its Regulations of 14 July
1972, to extend its exclusive jurisdiction from 12
to 50 nautical miles from the baselines, does it
not in this way also commit a breach of
international law? Thus the Court would in no
way be open to criticism if it upheld the claim as
well founded.
For my part, I believe that the Court would
certainly have strengthened its judicial authority
if it had given a positive reply to the claim laid
before it by the United Kingdom, instead of
embarking on the construction of a thesis on
preferential rights, zones of conservation of fish
species, or historic rights, on which there has
never been any dispute, nor even the slightest
shadow of a controversy on the part either of the
Applicant or of the Respondent.
Furthermore, it causes me some concern also that
the majority of the Court seems to have adopted
the position which is apparent in the present
Judgment with the intention of pointing the way
for the participants in the Conference on the Law
of the Sea now sitting in Caracas.
The Court here gives the impression of being
anxious to indicate the principles on the basis of
which it would be desirable that a general
international regulation of rights of fishing should
be adopted.
I do not discount the value of the reasons which
guided the thinking of the majority of the Court,
and the Court was right to take account of the
special situation of Iceland and its inhabitants,
which is deserving of being treated with special
concern. In this connection, the same treatment
should be contemplated for all developing
countries in the same position, which cherish the
hope of seeing all these fisheries problems
settled, since it is at present such countries which
suffer from the anarchy and lack of organization
of international fishing. But that is not the
question which has been laid before the Court,
and the reply given can only be described as
evasive.
In taking this viewpoint I am not unaware of the
risk that I may be accused of not being in tune
with the modern trend for the Court to arrogate a
creative power which does not pertain to it under
either the United Nations Charter or its Statute.
Perhaps some might even say that the classic
conception of international law to which I declare
allegiance is out-dated; but for myself, I do not
fear to continue to respect the classic norms of
that law. Perhaps from the Third Conference on
the Law of the Sea some positive principles
accepted by all States will emerge. I hope that
this will be so, and shall be the first to applaud—
and furthermore I shall be pleased to see the good
use to which they can be put, in [p 38] particular
for the benefit of the developing countries. But
since I am above all faithful to judicial practice, I
continue fervently to urge the need for the Court
to confine itself to its obligation to state the law
as it is at present in relation to the facts of the
case brought before it.
I consider it entirely proper that, in international
law as in every other system of law, the existing
law should be questioned from time to time —
this is the surest way of furthering its progressive
development—but it cannot be concluded from
this that the Court should, for this reason and on
the occasion of the present dispute between
Iceland and the United Kingdom, emerge as the
begetter of certain ideas which are more and more
current today, and are even shared by a
respectable number of States, with regard to the
law of the sea, and which are in the minds, it
would seem, of most of those attending the
Conference now sitting in Caracas. It is
advisable, in my opinion, to avoid entering upon
anything which would anticipate a settlement of
problems of the kind implicit in preferential and
other rights.
To conclude this declaration, I think I may draw
inspiration from the conclusion expressed by the
Deputy Secretary of the United Nations Sea-Bed
Committee, Mr. Jean-Pierre Levy, in the hope
that the idea it expresses may be an inspiration to
States, and to Iceland in particular which, while
refraining from following the course of law,
prefers to await from political gatherings a
justification of its rights.
Page 23 of 112
I agree with Mr. Jean-Pierre Levy in thinking
that:
" it is to be hoped that States will make use of the
next four or five years to endeavour to prove to
themselves and particularly to their nationals that
the general interest of the international
community and the well-being of the peoples of
the world can be preserved by moderation,
mutual understanding, and the spirit of
compromise; only these will enable the Third
Conference on the Law of the Sea to be held and
to succeed in codifying a new legal order for the
sea and its resources" ("La troisième Conference
sur le droit de la mer", Annuaire français de droit
international, 1971, p. 828).
In the expectation of the opening of the new era
which is so much hoped for, I am honoured at
finding myself in agreement with certain
Members of the Court like Judges Gros, Petren
and Onyeama for whom the golden rule for the
Court is that, in such a case, it should confine
itself strictly within the limits of the jurisdiction
conferred on it.
JUDGE NAGENDRA SINGH MAKES THE
FOLLOWING DECLARATION:
There are certain valid reasons which weigh with
me to the extent that they enable me to support
the Judgment of the Court in this case and [p 39]
hence I consider them of such importance as to be
appropriately emphasized to convey the true
significance of the Judgment—its extent as well
as its depth. These reasons, as well as those
aspects of the Judgment which have that
importance from my viewpoint are briefly stated
as follows:
I
While basing its findings on the bilateral law,
namely the Exchange of Notes of 1961 which has
primacy in this case, the Court has pronounced
upon (b) and (c) 1 the second and third
submissions of the Applicant's Memorial on the
merits, in terms of non-opposability to the United
Kingdom. This suffices for the purpose of that
part of the Judgment and is in accordance with
the statement made by counsel FN2 for the
Applicant at the hearings, to the effect that the
second and' third submissions are separable from
the first and it is open to the Court not to
adjudicate on the first submission (a) FN1 which
relates to the general law.
------------------------------------------------------------
---------------------------------------------------------
FN1 See paras. 11 and 12 of the Judgment for the
text of the submissions.
FN2 Hearing of 29 March 1974, CR 74/3, p. 23.
------------------------------------------------------------
---------------------------------------------------------
In the special circumstances of this case the Court
has, therefore, not proceeded to pronounce upon
the first submission (a) of the Applicant, which
requests the Court to declare that Iceland's
extension of its exclusive fishery limit to 50
nautical miles is invalid being without foundation
in international law which amounts to asking the
Court to find that such extension is ipso jure,
illegal and invalid erga omnes. Having refrained
from pronouncing on that aspect it was,
consequently, unnecessary for the Court to
pronounce on the Applicant's legal contention in
support of its first submission, namely, that a
customary rule of international law exists today
imposing a general prohibition on extension by
States of their fisheries jurisdiction beyond 12
miles.
There is still a lingering feature of development
associated with the general law. The rules of
customary maritime law relating to the limit of
fisheries jurisdiction have still been evolving and
confronted by a widely divergent and, discordant
State practice, have not so far crystallized. Again,
the conventional maritime law though
substantially codified by the Geneva Conferences
on the Law of the Sea of 1958 and 1960 has
certain aspects admittedly left over to be settled
and these now constitute, among others, the
subject of subsequent efforts at codification. The
question of the extent of fisheries jurisdiction
which is still one of the unsettled aspects could
not, therefore, be settled by the Court since it
could not "render judgment sub specie legis
ferendae, or anticipate the law before the
legislator has laid it down". [p 40]
This is of importance to me but I do not have to
elaborate this point any further since I have
subscribed to the views expressed by my
colleagues in the joint separate opinion of the five
Page 24 of 112
Judges wherein this aspect has been more fully
dealt with.
II
The contribution which the Judgment makes
towards the development of the Law of the Sea
lies in the recognition which it gives to the
concept of preferential rights of a coastal State in
the fisheries of the adjacent waters particularly if
that State is in a special situation with its
population dependent on those fisheries.
Moreover, the Court proceeds further to
recognize that the law pertaining to fisheries must
accept the primacy for the need of conservation
based on scientific data. This aspect has been
properly emphasized to the extent needed to
establish that the exercise of preferential rights of
the coastal State as well as the historic rights of
other States dependent on the same fishing
grounds, have all to be subject to the over-riding
consideration of proper conservation of the
fishery resources for the benefit of all concerned.
This conclusion would appear warranted if this
vital source of man's nutrition is to be preserved
and developed for the community.
In addition there has always been the need for
accepting clearly in maritime matters the
existence of the duty to "have reasonable regard
to the interests of other States"—a principle
enshrined in Article 2 of the Geneva Convention
of the High Seas 1958 which applies even to the
four freedoms of the seas and has weighed with
the Court in this case. Thus the rights of the
coastal State which must have preference over the
rights of other States in the coastal fisheries of the
adjacent waters have nevertheless to be exercised
with due regard to the rights of other States and
the claims and counter-claims in this respect have
to be resolved on the basis of considerations of
equity. There is, as yet, no specific conventional
law governing this aspect and it is the evolution
of customary law which has furnished the basis
of the Court's Judgment in this case.
III
The Court, as the principal judicial organ of the
United Nations, taking into consideration the
special field in which it operates, has a distinct
role to play in the administration of justice. In
that context the resolving of a dispute brought
before it by sovereign States constitutes an
element which the Court ought not to ignore in its
adjudicatory function. This aspect relating to the
settlement of a dispute has been emphasized in
more than one article of the Charter of the United
Nations. There is Article 2, paragraph 3, as well
as Article 1, which both use words like
"adjustment [p 41] or settlement of international
disputes or situations", whereas Article 33 directs
Members to "seek a solution" of their disputes by
peaceful means.
Furthermore, this approach is very much in
accordance with the jurisprudence of the Court.
On 19 August 1929 the Permanent Court of
International Justice in its Order in the case of the
Free Zones of Upper Savoy and the District of
Gex (P.C.I.J., Series A, No. 22, at p. 13) observed
that the judicial settlement of international
disputes is simply an alternative to the direct and
friendly settlement of such disputes between the
parties. Thus if negotiations become necessary in
the special circumstances of a particular case the
Court ought not to hesitate to direct negotiations
in the best interests of resolving the dispute.
Defining the content of the obligation to
negotiate, the Permanent Court in its Advisory
Opinion of 1931 in the case of Railway Traffic
between Lithuania and Poland (P.C.I. J., Series
A/B, No. 42, 1931, at p. 116) observed that the
obligation was "not only to enter into
negotiations, but also to pursue them as far as
possible, with a view to concluding agreements"
even if "an obligation to negotiate does not imply
an obligation to reach an agreement". This does
clearly imply that everything possible should be
done not only to promote but also to help to
conclude successfully the process of negotiations
once directed for the settlement of a dispute. In
addition we have also the North Sea Continental
Shelf cases (I.C.J. Reports 1969) citing Article 33
of the United Nations Charter and where the
Parties were to negotiate in good faith on the
basis of the Judgment to resolve the dispute.
Though it would not only be improper but quite
out of the question for a court of law to direct
negotiations in every case or even to contemplate
such a step when the circumstances did not
justify the same, it would appear that in this
particular case negotiations appear necessary and
flow from the nature of the dispute, which is
confined to the same fishing grounds and relates
Page 25 of 112
to issues and problems which best lend
themselves to settlement by negotiation. Again,
negotiations are also indicated by the nature of
the law which has to be applied, whether it be the
treaty of 1961 with its six months' notice in the
compromissory clause provided ostensibly for
negotiations or whether it be reliance on
considerations of equity. The Court has,
therefore, answered the last submission ((e)
FN1re-lettered as (d) of the Applicant's Memorial
on the merits) in the affirmative and accepted that
negotiations furnished the correct answer to the
problem posed by the need for equitably
reconciling the historic right of the Applicant
based on traditional fishing with the preferential
rights of Iceland as a coastal State in a situation
of special dependence on its fisheries. The
Judgment of the Court, in asking the Parties to
negotiate a [p 42]
settlement, has thus emphasized the importance
of resolving the dispute in the adjudication of the
case.
------------------------------------------------------------
---------------------------------------------------------
FN1 See paras. 11 and 12 of the Judgment for the
text of the submissions.
------------------------------------------------------------
---------------------------------------------------------
No court of law and particularly not the
International Court of Justice could ever be said
to derogate from its function when it gives due
importance to the settlement of a dispute which is
the ultimate objective of all adjudication as well
as of the United Nations Charter and the Court, as
its organ, could hardly afford to ignore this
aspect. A tribunal, while discharging its function
in that manner, would appear to be adjudicating
in the larger interest and ceasing to be narrow and
restrictive in its approach.
Thus, the interim agreement of 1973 entered into
by the contesting Parties with full reservations as
to their respective rights and which helped to
avoid intensification of the dispute could never
prevent the Court from pronouncing on the
United Kingdom submissions. To decide
otherwise would have meant imposing a penalty
on those who negotiate an interim agreement to
avoid friction as a preliminary to the settlement of
a dispute.
Again, when confronted with the problem of its
own competence in dealing with that aspect of the
dispute which relates to the need for conservation
and the exercise of preferential rights with due
respect for historic rights, the Court has rightly
regarded those aspects to be an integral part of
the dispute. Surely, the dispute before the Court
has to be considered in all its aspects if it is to be
properly resolved and effectively adjudicated
upon. This must be so if it is not part justice but
the whole justice which a tribunal ought always
to have in view. It could, therefore, be said that it
was in the overall interests of settlement of the
dispute that certain parts of it which were
inseparably linked to the core of the conflict were
not separated in this case to be left unpronounced
upon. The Court has, of course, to be mindful of
the limitations that result from the principle of
consent as the basis of international obligations,
which also governs its own competence to
entertain a dispute. However, this could hardly be
taken to mean that a tribunal constituted as a
regular court of law when entrusted with the
determination of a dispute by the willing consent
of the parties should in any way fall short of fully
and effectively discharging its obligations. It
would be somewhat disquieting if the Court were
itself to adopt either too narrow an approach or
too restricted an interpretation of those very
words which confer jurisdiction on the Court
such as in this case "the extension of fisheries
jurisdiction around Iceland" occurring in the
compromissory clause of the Exchange of Notes
of 1961. Those words could not be held to
confine the competence conferred on the Court to
the sole question of the conformity or otherwise
of Iceland's extension of its fishery limits with
existing legal rules. The Court, therefore, need
not lose sight of the consideration relating to the
settlement of the dispute while remaining strictly
within the framework of the law which it
administers and adhering always to the
procedures which it must follow. [p 43]
IV
For purposes of administering the law of the sea
and for proper understanding of matters
pertaining to fisheries as well as to appreciate the
facts of this case, it is of some importance to
know the precise content of the expression
"fisheries jurisdiction" and for what it stands and
means. The concept of fisheries jurisdiction does
cover aspects such as enforcement of
Page 26 of 112
conservation measures, exercise of preferential
rights and respect for historic rights since each
one may involve an element of jurisdiction to
implement them. Even the reference to
"extension" in relation to fisheries jurisdiction
which occurs in the compromissory clause of the
1961 treaty could not be confined to mean merely
the extension of a geographical boundary line or
limit since such an extension would be
meaningless without a jurisdictional aspect which
constitutes, as it were, its juridical content. It is
significant, therefore, that the preamble of the
Truman Proclamation of 1945 respecting United
States coastal fisheries refers to a "jurisdictional"
basis for implementing conservation measures in
the adjacent sea since such measures have to be
enforced like any other regulations in relation to a
particular area. This further supports the Court's
conclusion that it had jurisdiction to deal with
aspects relating to conservation and preferential
rights since the 1961 treaty by the use of the
words "extension of fisheries jurisdiction" must
be deemed to have covered those aspects.
V
Another aspect of the Judgment which has
importance from my viewpoint is that it does not
"preclude the Parties from benefiting from any
subsequent developments in the pertinent rules of
international law" (para. 77). The adjudicatory
function of the Court must necessarily be
confined to the case before it. No tribunal could
take notice of future events, contingencies or
situations that may arise consequent on the
holding or withholding of negotiations or
otherwise even by way of a further exercise of
jurisdiction. Thus, a possibility or even a
probability of changes in law or situations in the
future could not prevent the Court from rendering
Judgment today. [p 44]
Judges Forster, Bengzon, Jimenez de Arechaga,
Nagendra Singh and Ruda append a joint separate
opinion to the Judgment of the Court; Judges
Dillard, de Castro and Sir Humphrey Waldock
append separate opinions to the Judgment of the
Court.
Judges Gros, Petren and Onyeama append
dissenting opinions to the Judgment of the Court.
(Initialled) M.L.
(Initialled) S.A. [p 45]
JOINT SEPARATE OPINION OF JUDGES
FORSTER, BENGZON, JIMENEZ DE
ARECHAGA, NAGENDRA SINGH AND
RUDA
1. What has made it possible for us to concur in
the reasoning of the Court and to subscribe to its
decision is that, while the Judgment declares the
Icelandic extension of its fisheries jurisdiction
non-opposable to the Applicant's historic rights, it
does not declare, as requested by the Applicant,
that such an extension is without foundation in
international law and invalid erga omnes. In
refraining from pronouncing upon the Applicant's
first submission and in reaching instead a
decision of non-opposability to the United
Kingdom of the Icelandic regulations, the
Judgment is based on legal grounds which are
specifically confined to the circumstances and
special characteristics of the present case and is
not based on the Applicant's main legal
contention, namely, that a customary rule of
international law exists today imposing a general
prohibition on extensions by States of their
exclusive fisheries jurisdiction beyond 12
nautical miles from their baselines.
2. In our view, to reach the conclusion that there
is at present a general rule of customary law
establishing for coastal States an obligatory
maximum fishery limit of 12 miles would not
have been well founded. There is not today an
international usage to that effect sufficiently
wide-spread and uniform as to constitute, within
the meaning of Article 38, paragraph 1 (b), of the
Court's Statute, "evidence of a general practice
accepted as law".
It is an indisputable fact that it has not been
possible for States, despite the efforts made at
successive codification conferences on the law of
the sea, to reach an agreement on a rule of
conventional law fixing the maximum breadth of
the territorial sea nor the maximum distance
seaward beyond which States are not allowed to
extend unilaterally their fisheries jurisdiction. The
deliberations of the 1958 Geneva Conference on
the Law of the Sea revealed this failure which has
been recorded in its resolution VIII of 27 April
1958. The General Assembly of the United
Page 27 of 112
Nations consequently laid down that these two
subjects would constitute the agenda for the 1960
Conference on the Law of the Sea, which also
failed to reach agreement on a text. The
establishment of a rule on these two questions
thus remains among the topics on the agenda of
the current Third United Nations Conference on
the Law of the Sea.
4. The law with respect to free-swimming fishery
resources has evolved [p 46] with complete
independence from the question of the continental
shelf: the two subjects, divorced at the 1958
Conference, have remained separate. It follows
that while the provisions of the Continental Shelf
Convention (or the principles it established as
customary law) cannot afford per se a legal basis
to a claim with respect to free-swimming fish in
the waters above the shelf, these provisions
cannot either be applied a contrario in order to
rule as unlawful a claim to exclusive fisheries in
the superjacent waters. In order to prove the lack
of relationship between the two questions it is
sufficient to recall that the Applicant itself has
claimed since 1964 exclusive rights over free-
swimming fishery resources in waters beyond
and adjacent to its own territorial sea, that is to
say in waters which, under the terms of Article 1
of the Continental Shelf Convention, are
superjacent to part of its continental shelf.
5. It has also been contended that a 12-mile
maximum fishery limit results by implication
from the fact that Article 24 of the Territorial Sea
Convention establishes a maximum 12-mile limit
for the contiguous zone. However, the contiguous
zone is also entirely unrelated to fishery
questions: fishing does not find a place among
the purposes of the zone referred to in that
Article. It does not seem possible therefore to
infer from this provision a restriction with respect
to fishery limits. Moreover, when the contiguous
zone concept and its limits were adopted at the
Geneva Conference no-one understood at the
time that by agreeing to this comparatively
secondary provision, the Conference was
deciding by implication the two basic questions
which had been left in suspense and had in the
end to be referred to a second Conference: the
maximum breadth of the territorial sea and the
maximum fishery jurisdiction of the coastal State.
The Conference recorded in its resolution No.
VIII that these two questions had remained
unsettled. In the face of that decision, it does not
seem plausible to contend now that the
Conference in adopting Article 24 on the
Contiguous Zone implied, even inadvertently, a
maximum limit for fishery jurisdiction or for the
territorial sea.
6. No maximum rule on fishery limits, having the
force of international custom, appears to have as
yet emerged to be finally established. The
Applicant has however contended that such a rule
did crystallize around the proposal which failed
to be adopted by one vote at the 1960 Con-
ference on the Law of the Sea. It is true that a
general practice has developed around that
proposal and has in fact amended the 1958
Convention praeter legem: an exclusive fishery
zone beyond the territorial sea has become an
established feature of contemporary international
law. It is also true that the joint formula voted at
that Conference provided for a 6 + 6 formula, i.e.,
for an exclusive 12-mile fishery zone. It is
however necessary to make a distinction between
the two meanings which may be [p 47] ascribed
to that reference to 12 miles:
(a) the 12-mile extension has now obtained
recognition to the point that even distant-water
fishing States no longer object to a coastal State
extending its exclusive fisheries jurisdiction zone
to 12 miles; or, on the other hand,
(b) the 12-mile rule has come to mean that States
cannot validly extend their exclusive fishery
zones beyond that limit.
7. In our view, the concept of the fishery zone
and the 12-mile limit became established with the
meaning indicated in 6 (a) above when, in the
middle sixties, distant-water fishing States ceased
to challenge the exclusive fishery zone of 12
miles established by a number of coastal States. It
is for this reason that it may be said, as the
Judgment does, that the 12-mile limit "appears
now to be generally accepted".
8. However, to recognize the possibility that
States might claim without risk of challenge or
objection an exclusive fisheries zone of 12 miles
cannot by any sense of logic necessarily lead to
the conclusion contended for by the Applicant,
namely, that such a figure constitutes in the
present state of maritime international law an
obligatory maximum limit and that a State going
Page 28 of 112
beyond such a limit commits an unlawful act,
which is invalid erga omnes. This contention of
the Applicant is an answer to a different question,
which must be examined separately.
9. That question is as follows: is there an existing
rule of customary law which forbids States to
extend their fisheries jurisdiction beyond 12
miles? In order to reply in the affirmative to this
question, it would be necessary to be satisfied
that such a rule meets the conditions required for
the birth of an international custom.
10. It is a fact that a continually increasing
number of States have made claims to extend and
have effectively extended their fisheries
jurisdiction beyond 12 miles. While such a trend
was initiated in Latin America, it has been lately
followed not only in that part of the world, but in
other regions as well. A number of countries in
Africa and Asia have also adopted a similar
action. The total number adopting that position
may now be estimated to be between 30 to 35
coastal States, depending on the interpretation to
be given to certain national laws or decrees.
11. While those claims have generally given rise
to protests or objections by a number of
important maritime and distant-water fishing
States, and in this respect they cannot be
described as being "generally accepted", a
majority of States have not filed similar protests,
and quite a number have, on the contrary, made
public pronouncements or formal proposals
which would appear to be inconsistent with the
making of such protests. [p 48]
12. In this respect, attention must be drawn to
declarations made, or proposals filed by a number
of States in relation to or in preparation for the
Third Conference on the Law of the Sea. It is true
that, as the Court's Judgment indicates, the
proposals and preparatory documents made in the
aforesaid context are de legeferenda. However, it
is not possible in our view to brush aside entirely
these pronouncements of States and consider
them devoid of all legal significance. If the law
relating to fisheries constituted a subject on
which there were clear indications of what
precisely is the rule of international law in
existence, it may then have been possible to
disregard altogether the legal significance of
certain proposals, declarations or statements
which advocate changes or improvements in a
system of law which is considered to be unjust or
inadequate. But this is not the situation. There is
at the moment great uncertainty as to the existing
customary law on account of the conflicting and
discordant practice of States. Once the
uncertainty of such a practice is admitted, the
impact of the aforesaid official pronouncements,
declarations and propo-sals must undoubtedly
have an unsettling effect on the crystallization of
a still evolving customary law on the subject.
Furthermore, the law on fishery limits has always
been and must by its very essence be a
compromise between the claims and counter-
claims of coastal and distant-water fishing States.
On a subject where practice is contradictory and
lacks precision, is it possible and reasonable to
discard entirely as irrelevant the evidence of what
States are prepared to claim and to acquiesce in,
as gathered from the positions taken by them in
view of or in preparation for a conference for the
codification and progressive development of the
law on the subject?
13. The least that can be said, therefore, is that
such declarations and statements and the written
proposals submitted by representatives of States
are of significance to determine the views of
those States as to the law on fisheries jurisdiction
and their opinio iuris on a subject regulated by
customary law. A number of pronouncements of
States in the aforesaid circumstances reveals that
while the fundamental principle of freedom of
fishing in the high seas is not challenged as such,
a large number of coastal States contest or deny
that such a principle applies automatically and
without exception to adjacent waters in all parts
of the world as soon as the 12-mile limit is
reached. Such an attitude is not only based on the
clear consideration that two conferences have
failed to agree on a maximum limit but also
because of additional factors which have emerged
in the intervening period between the Second and
Third United Nations Conferences. For example,
it is contended that the 12-mile fishery limit
ensures, in fact, a clear privilege and a distinct
ad-vantage to the few States equipped to
undertake distant-water fishing, thus widening
the gulf between developed and developing
States; a second fact is that technological
advances and the pressure on food supplies
resulting from the population explosion have
caused a serious danger of depletion of living
Page 29 of 112
resources in the vicinity of the coasts of [p 49]
many countries. In this respect, economic studies
on fisheries have shown that the principle of open
and unrestricted access to coastal waters
inevitably results in physical and economic
waste, since there is no incentive for restraint in
the interest of future returns: anything left in
adjacent waters for tomorrow may be taken by
others today. While the better-equipped States
can freely move their fleets to other grounds as
soon as the fishing operations become
uneconomical, the coastal States, with less
mobile fleets, maintain the greatest interest in
ensuring that the resources near their own coasts
are not depleted.
14. While granting that proposals and preparatory
documents are de lege ferenda and made with the
purpose of reaching future agreements on the
basis of concessions and compromise, the
following inferences could, however, be
legitimately drawn from their existence:
(a) States submitting proposals for a 200-mile
economic zone, for instance, which includes
control and regulation of fishery resources in that
area, would be in a somewhat inconsistent
position if they opposed or protested against
claims of other States for a similar extension.
Such would be the case, in particular, of those
States that have, in the Council of Ministers of
the Organization of African Unity, voted in
favour of the declaration on the Issues of the Law
of the Sea, Article 6 of which says:
". . . that the African States recognize the right of
each coastal State to establish an exclusive
economic zone beyond their territorial seas whose
limits shall not exceed 200 nautical miles,
measured from the baselines establishing their
territorial sea".
Another instance is that of the People's Republic
of China. In the joint communique of
establishment of diplomatic relations with Peru of
2 November 1971, the People's Republic of
China recognized "the sovereignty of Peru over
the maritime zone adjacent to her coasts within
the limits of 200 nautical miles". The same
recognition was expressed in a similar
communique with Argentina on 16 February
1972.
(b) it would not seem justified to count States
which have agreed to or made such declarations
and proposals as figuring in the group of States
concurring in the establishment of an alleged
practice in favour of a 12-mile maximum
obligatory limit.
15. If, to the 30 to 35 States which have already
extended their fisheries jurisdiction beyond 12
miles, there is added the further number of 20 to
25 States which have taken the attitudes
described in the preceding paragraph, the
conclusion would be that, today, more than half
the maritime [p 50] States are on record as not
supporting in fact and by their conduct the
alleged maximum obligatory 12-mile rule. In
these circumstances, the limited State practice
confined to some 24 maritime countries cited by
the Applicant in favour of such a rule cannot be
considered to meet the requirement of generality
demanded by Article 38 of the Court's Statute.
16. Another essential requirement for the practice
of States to acquire the status of customary law is
that such State practice must be common,
consistent and concordant. Thus contradiction in
the practice of States or inconsistent conduct,
particularly emanating from these very States
which are said to be following or establishing the
custom, would prevent the emergence of a rule of
customary law.
17. Certain States, whose conduct is invoked as
showing the existence of the 12-mile maximum
rule, have not hesitated to protect their own
fishing interests beyond that limit, when they felt
that it was required for the benefit of their
nationals by the existence of important fisheries
in waters adjacent to their coasts. Various
methods have been utilized to achieve that result,
but the variety of methods should not obscure the
essential fact. It could be observed for instance,
that the United States and the USSR have lately
carried out this form of protection not unilaterally
but through bilateral agreements inter se and with
other States FN1. However, these Powers began
by adopting unilateral measures which created for
the States whose nationals were fishing in
adjacent waters the need to enter into fishery
agreements if they wished that their nationals
could continue their fishing activities in those
grounds. Once the need for an agreement was
thus created, it was not difficult for these Powers,
Page 30 of 112
because of their possibilities in offering various
countervailing advantages, to reach agreements
which assured them of a preferential or even an
exclusive position in those fishing grounds in
which they had special interests in areas adjacent
to their shores well beyond the 12 miles. This [p
51] demonstrates the fact that even for States
which cannot claim a special dependence on their
fisheries for their livelihood or economic
development, 12 miles may not be sufficient. It
would not seem fair or equitable to postulate on
the basis of such divergent conduct a rule of law
which would deny the power to protect much
more vital fishing interests to countries lacking
the same possibilities of offering attractive terms
by way of compensation for abstaining from
fishing in their adjacent waters.
------------------------------------------------------------
---------------------------------------------------------
FN1 International Convention (with annex and
Protocol) for the High Seas Fisheries of the North
Pacific Ocean signed on 9 May 1952 by the
United States of America, Canada and Japan
(United Nations Treaty Series, Vol. 205, p. 65);
Convention concerning the High Seas Fisheries
of the North-West Pacific Ocean signed on 14
May 1956 by Japan and the Union of Soviet
Socialist Republics (AJIL, 1959, p. 763);
Agreement between the Government of the
United States of America and the Government of
the Union of Soviet Socialist Republics on
Certain Fishery Problems in the North-Eastern
Part of the Pacific Ocean off the Coast of the
United Stales of America, signed on 13February
1967 (United Nations Treaty Series, Vol. 688, p.
157); Agreement between the Government of the
United States of America and the Government of
the Union of Soviet Socialist Republics on
Certain Fishery Problems on the High Seas in the
Western Areas of the Middle Atlantic Ocean,
signed on 25 November 1967 (United Nations
Treaty Series, Vol. 701, p. 162); Agreements
effected by Exchange of Notes signed on 23
December 1968 between the United States and
Japan on Certain Fisheries off the United States
Coast and Salmon Fisheries (TIAS of the United
States, No. 6600).
------------------------------------------------------------
---------------------------------------------------------
18. The practice of France offers another
interesting example with respect to the question
of uniformity of custom. France extended its
fishing limits, in 1972, to 80 miles in the French
Guiana. Law No. 72-620 of 5 July 1972
established this zone of 80 miles "with a view to
ensure the conservation of biological resources".
However, Article 2 laid down:
"In that part of the zone defined in Article 1
which extends beyond territorial waters, measures
shall be taken as needed, in accordance with
conditions laid down by decree, for the purpose
of limiting the fishing of the various species of
marine animal. The application of these measures
to the vessels of foreign States shall be carried
out with due regard for the geographical situation
of those States and the fishing habits of their
nationals.
In the same part of the zone, fishing by the
vessels of States not authorizing fishing by
French vessels in comparable circumstances may
be prohibited by decree."
Thus France is reserving its right to forbid
foreign vessels to fish in the zone between the 12
and 80-mile limit off Guiana, if French vessels
are not authorized to fish in zones beyond 12
miles off the coast adjacent to another country. It
is hardly possible to count France among the
States whose practice invariably supports an
alleged 12-mile maximum limit, when it is
reserving the right to forbid foreign fishing
outside 12 miles off the shore of the French
Guiana, under certain conditions.
19. Likewise, archipelago States which have
claimed or established fishery limits according to
the geographical characteristics of their territories
could hardly be counted as States accepting the
existence of a maximum 12-mile obligatory limit.
The same observation could be made in regard to
States which have fixed an exclusive fishing zone
far beyond the 12-mile limit off their coasts by
establishing "fisheries closing lines" in certain
bays.
20. Consequently, it is not possible to find today
in the practice of [p 52] States what the Court
described in the Asylum case as "a constant and
uniform usage, accepted as law" (I.C.J. Reports
1950, p. 277). The alleged 12-mile limit
maximum obligatory rule does not fulfil "an
indispensable requirement", namely, "that within
Page 31 of 112
the period in question, short though it might be,
State practice, including that of States whose
interests are specially affected, should have been
both extensive and virtually uniform" (North Sea
Continental Shelf cases, I.C.J. Reports 1969, p.
43).
21. It could therefore be concluded that there is at
present a situation of uncertainty as to the
existence of a customary rule prescribing a
maximum limit of a State's fisheries jurisdiction.
No firm rule could be deduced from State
practice as being sufficiently general and uniform
to be accepted as a rule of customary law fixing
the maximum extent of the coastal State's
jurisdiction with regard to fisheries. This does not
mean that there is a complete "lacuna" in the law
which would authorize any claim or make it
impossible to decide concrete disputes. In the
present case, for instance, we have been able to
concur in a Judgment based on two concepts
which we fully support: the preferential rights of
the coastal State and the rights of a State where a
part of its population and industry have a long
established economic dependence on the same
fishery resources.
22. Admittedly, this situation of legal uncertainty
is unsatisfactory and conducive to international
friction and disputes. It is to be hoped however
that the law on the subject may be clarified as a
result of the efforts directed to its codification and
progressive development which are now being
made at the Caracas conference.
(Signed) I. Forster.
(Signed) C. Bengzon.
(Signed) E. Jimenez de Arechaga.
(Signed) Nagendra Singh.
(Signed) J. M. Ruda. [p53]
SEPARATE OPINION OF JUDGE DILLARD
I concur in the Judgment of the Court. I am
moved to write a separate opinion first to
elaborate on a few possibly controversial aspects
of the Judgment and second to put it in a broader
perspective.
**
The present controversy centres on the familiar
problem of conflicting interests between a coastal
State claiming special dependence on "coastal"
fisheries and a "distant-water" State (so called),
whose traditional rights and continuing needs
clash with those of the coastal State FN1. But,
while the general problem is a familiar one, the
particular problem confronting the Court was
more sharply focussed. It hinged on the meaning
to be attributed to the Exchange of Notes of 11
March 1961, which the Court, [p 54] at the
jurisdictional phase of the present proceedings,
had definitively pronounced to be a treaty in force
between the Parties. The impact of that treaty on
the nature and scope of the Court's jurisdiction
and the rights of the Parties consequent upon the
submissions of the Applicant were by no means
self-revealing. It resulted that the Court could not
agree on all aspects of the case.
------------------------------------------------------------
---------------------------------------------------------
FN1 In the waters around Iceland, embraced in an
area known technically as ICES— Region Va, the
yearly average catch from 1952-1972 was
approximately 1 million tons. Iceland, the United
Kingdom and the Federal Republic of Germany
take regularly 96 to 97 per cent, of the total catch.
The main fish species are at present cod, capelin,
saithe, redfish and haddock. (Until 1966, herring
was also important.) The five species represent 94
per cent, of all species and among the five, cod
are the most important.
The life cycle, migratory habits and reproduction
factors of all species are directly connected with
the hydrography of the area including the effect
of the warm and saline water of the Gulf Stream.
A graphic account of these matters accompanied
by a comprehensive series of charts, diagrams
and statistical data was presented to the Court by
Dr. Arno Meyer, at its public sitting on 28 March
1974. It will appear in the Pleadings series of the
Court dealing with the companion case of the
Federal Republic of Germany.
Detailed statistical data bearing on the economic
aspects of the fishery industry in relation to the
three nations, appears in FAO Circular No. 314,
entitled "The Economic and Social Effects of
Fishing Industry—A Comparative Study" (Rome,
1973). Perhaps the most significant single fact
disclosed in the survey is that fish exports
represent for Iceland 83 per cent, of all exports.
Page 32 of 112
On the other hand, while Iceland has a significant
surplus of local production over consumption, the
other two States depend for fish largely on non-
local sources. The FAO Circular while also
revealing employment figures dealing with the
catch and landing of fish, does not purport to
include data on the processing and distributing of
fish or in the manufacture of boats, gear and
associated industries. In assessing the scope of
conflicting interests both biological and economic
factors are, of course, significant. Matters of this
kind are dealt with extensively in McDougal and
Burke, The Public Order of the Oceans (1962)
and D. M. Johnston, The International Law of
Fisheries (1965).
------------------------------------------------------------
---------------------------------------------------------
As in other controversies, an appreciation of the
factual and legal issues depends, to some extent,
on the general approach which individual judges
bring to bear on their analysis.
In the present case there was little doubt that the
attempt by Iceland unilaterally to exercise
exclusive jurisdiction in the disputed waters
could not be opposed to the vessels of the United
Kingdom. But the reasons in support of this
conclusion did not reflect a uniform approach and
this, in turn, affected varying interpretations to be
given to the requirements of the treaty and the
submissions of the Applicant.
At the outset, I should say that the Judgment of
the Court reflects an approach which I consider
soundly grounded. On the other hand, other
approaches were, in my view, by no means
lacking in persuasive force. I shall elaborate
briefly on two of them. I shall then turn to the
special problem involved in responding to the
Applicant's third and fourth submissions FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 All of the Applicant's submissions are set
out in para. 11 of the Judgment.
------------------------------------------------------------
---------------------------------------------------------
***
One such approach would rest on the proposition
that Iceland has materially breached the
Exchange of Notes of 1961 which the Court had
previously pronounced to be a treaty in force. The
terms and implication of that treaty admit of no
doubt. Even if Iceland, in keeping with her
repeatedly announced aspiration to extend her
limits—an aspiration also embedded in the
treaty—had been privileged unilaterally to
pronounce an extension, she was not legally
privileged to apply that extension to the vessels
of the United Kingdom except under any one of
three contingencies: (a) that the United Kingdom
failed to challenge it or (b) that through
negotiations the Parties reached an agreement or
(c) that, if challenged, this Court would have
pronounced on whether the extension was well
founded under international law.
The analysis of the treaty, including the
obligation to give six months' notice of any
extension and the obligation to have recourse to
the Court, have been analysed in detail in the
Judgment of the Court at the jurisdictional stage
and need not be repeated here FN2. Suffice it to
say that the requirement that "in case of a dispute
in relation to such extension, the matter shall, at
the request of either party, be referred to the
International Court of Justice", was no mere
severable clause of minor significance [p 55] but
an essential element of the entire agreement, the
importance of which to the United Kingdom was
underlined in the negotiations. And its
importance was enhanced by providing an
amicable method of resolving a potential dispute.
------------------------------------------------------------
---------------------------------------------------------
FN2 Judgment of 2 February 1973, I.C.J. Reports
1973, pp.8-16.
------------------------------------------------------------
---------------------------------------------------------
It hardly needs extensive elaboration to
demonstrate that when Iceland agreed to a
specified method whereby an extension of
fisheries jurisdiction by Iceland could be effected
vis-à-vis the United Kingdom, her repudiation of
that method constituted a material breach of the
treaty. It is almost axiomatic that when an
agreement or other instrument itself provides for
the way in which a given thing is to be done, it
must be done in that way or not at all (I.C.J.
Reports 1972, p. 68).
Page 33 of 112
This approach, based on a clear violation of the
treaty, would render irrelevant at the "merit"
stage of the dispute any purported theory Iceland
might advance to justify her extension. This is
true whether the alleged justification is keyed to a
change in customary law, or to the "reason-
ableness" of the extended limits by reference to
the continental shelf doctrine or any other reason.
So long as the treaty is one in force she is not
legally privileged to repudiate it, or to ignore the
method whereby the dispute was to be resolved.
The consequence of this approach would be to
allow the Court to adjudge and declare that under
international law Iceland is not privileged to take
the law into her own hands and, so far as the
present proceedings are concerned, she cannot
therefore oppose her extension to the United
Kingdom.
It might be objected that this approach is based
on too narrow a view of the meaning of the merits
as contemplated in the Exchange of Notes of
1961 and that it does not sufficiently dispose of
the controversy. In any event, while a permissible
approach, it was not adopted.
Another approach which the majority of the
Court failed to adopt but which can be rationally
defended is of an entirely different order
(needless to suggest those who espouse this
approach are not to be charged with my way of
putting the matter). I shall key it to the first
submission of the United Kingdom.
That submission asked the Court to adjudge and
declare:
". . . that the claim by Iceland to be entitled to a
zone of exclusive fisheries jurisdiction extending
50 nautical miles from baselines around the coast
of Iceland is without foundation in international
law and is invalid".
It will be observed that the sweeping character of
this submission differed from the second and
third submissions (which, in effect, the Court
responded to favourably) in that it appeared to
require the Court to say that the proclaimed
extension was ipso jure not well founded under
international law erga omnes, whereas the second
and third submissions strictly confined the issue
to the opposability of the extension to the United
Kingdom. [p 56]
Naturally a pronouncement on the first
submission would have automatically embraced
the second and third. Furthermore its terminology
corresponded to the main thrust of the language
employed in the negotiations preceding the
adoption of the Exchange of Notes of 1961.
The reluctance to pronounce on this submission
may be attributable to three separate but related
considerations. (I cannot speak for my colleagues,
I am only expressing my own assessment.)
First, there was the notion that the state of
customary international law in 1972 with respect
to unilateral extensions of fishery jurisdiction was
so charged with uncertainty, viewed simply as a
kind of "head count" analysis of State practice, as
to make tenuous any definitive pronouncement
on this issue.
Second, there was the deeper notion, keyed to the
very nature of the evolutionary character of
customary international law which would deny
that it can or should be captured in the classical
formula of repetitive usage coupled with opinio
juris, instead of recognizing that it is the product
of a continuing process of claim and counter-
claim in the context of specific disputes. This
concept would render intellectually suspect any
definitive pronouncement on the "12-mile rule"
erga omnes, which, because of its too generalized
nature, tended to ignore the many variables that
give content to customary international law and
condition its application.
Third, there was the inarticulated notion that
because of the Third Conference on the Law of
the Sea it would be imprudent for the Court to
attempt to pronounce on the issue of a "fixed"
limit for the extension of fisheries jurisdiction
when the issue was in a state of such
acknowledged political and legal flux.
In stating these notions I do not mean to imply
that the Court was inclined to duck the issue of
the validity of Iceland's extension under
international law on the ground that it was too
difficult to assess. It only sought a way of
avoiding the pronouncement on the issue in the
expansive way required by the United Kingdom's
first submission. In essence it did so by
Page 34 of 112
emphasizing the exclusive character of the
claimed extension in defiance of the established
rights of the United Kingdom. This, it held to be
contrary to the over-riding norm of international
law enshrined in the qualifying paragraph of
Article 2 of the 1958 Convention on the Law of
the Sea, a norm (or standard) applicable erga
omnes FN1. This approach, reflected in the first
and second subparagraphs of the dispositif, made
it [p 57] unnecessary for the Court to pronounce
definitively on the so-called 12-mile rule or the
United Kingdom's first submission.
------------------------------------------------------------
---------------------------------------------------------
FN1 Article 2 specifies that freedom of the high
seas comprises freedom of fishing, along with
freedom of navigation, to lay submarine cables
and pipelines and freedom to fly over the high
seas. The qualifying paragraph stales:
"These freedoms, and others which are
recognized by the general principles of
international law, shall be exercised by all States
with reasonable regard to the interests of other
States in their exercise of the freedom of the high
seas." (Emphasis added.)
The "norm" expressed by this Article is couched
in the language of a "standard" and not that of a
"rule" (in the narrow sense). This means that a
court, or any other decision-maker, has more
flexibility in applying it than if it required an
exercise in what is called "jural syntax". The use
of "standards" permits some accommodation of
the need for a "general norm" permitting a
tolerable degree of predictability with the need to
adjust to the peculiarities of a special situation, a
point to be alluded to later in this opinion.
On the meaning of "standards" see Pound,
"Hierarchy of Sources and Forms in Different
Systems of Law", 7 Tulane Law Review, 475
(1933) and on the use of standards in
"individualizing" the application of law see
Pound, An Introduction to the Philosophy of Law
(1953), p. 64.
------------------------------------------------------------
---------------------------------------------------------
Having said this, I am impelled to make the
following observations.
The contention that by the middle or late 1960s
customary international law had crystallized to a
point which set an outer limit of 12 miles for
exclusive fishery zones, while not conclusive, is
persuasive. "Head counts" dealing with "State"
practice, vary to some extent owing to different
criteria as to what is exclusive (see FAO Circular
No. 127, Rome, August 1971). Clearly the issue
is realistically framed not in terms of a set limit
of 12 miles but is keyed rather to the number of
States whose territorial sea and/or exclusive
fisheries jurisdiction taken jointly or separately
do not exceed 12 miles. An authoritative analysis
of 147 independent countries shows, as of August
1972, 96 States with 12 miles or less, 19 with
limits ranging from 15 to 200 miles, 4 ambiguous
and 28 landlocked. A United States State
Department tabulation of 123 jurisdictions
showed 88 per cent, as having 12 miles or less
and 12 per cent, in excess of 12 miles. Other
kinds of enumerations are plentiful. To determine
the significance of these and other tabulations,
account would need to be taken of geographical
spread, degrees of maritime interest and many
other factors beyond the reach of this opinion.
References in the United Kingdom Memorial on
the merits illuminate some of these factors (paras.
245-257) FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 The warning should be sounded that
tabulations of jurisdictional extensions may be
misleading unless an analysis is made of the
degree of control the coastal State purports to
exercise. In FAO Circular No. 127 (Rome, 1971)
the criterion of "exclusive" jurisdiction used in its
enumeration, includes any State which reserves to
its nationals the right to fish "regardless of
whether the legislation or an agreement to which
it is a party permits fishing by non-nationals
subject to certain conditions" (p. 1257). While
this might be an acceptable criterion it may not
coincide with that in other enumerations which
would not include agreed upon conservation
measures as constituting an "exclusive" claim. [p
58]
For some uncertainties in this area, see:
Stevenson, "Who is to Control the Oceans: US
Policy and the 1973 Law of the Sea Conference",
Vol. VI, The International Lawyer465-477
(1972). For a recent evaluation of varying South
Page 35 of 112
American claims, see Garcia Amador in 68
American Journal of International Law, 33-50
(1974).
------------------------------------------------------------
---------------------------------------------------------
The argument that classically conceived
customary international law supports an outer
limit of 12 miles is fortified by considering the
fact, of which the Court could take judicial
notice, that in practice States accord deference to
the 12-mile limit as a matter of legal obligation
and not merely as a matter of reciprocal tolerance
or comity. In contrast many assertions of
jurisdiction beyond 12 miles have generated
protests from affected States. Nor can a legitimate
inference be drawn from lack of protests by non-
interested States that they necessarily acquiesce
in such unilateral extensions of exclusive
jurisdiction FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 Logically, it does not follow that because
“protest” shows lack of “acquiescence” that lack
of protest shows acquiescence. The matter is
discussed in D’Amato, The Concept of Custom in
International Law (1971), at pp. 85, 98-102, 195.
------------------------------------------------------------
---------------------------------------------------------
The authority of the International Court of Justice
is sometimes invoked in support of a quasi-
universalist, as opposed to a consensus theory of
customary international law. Thus in the Anglo-
Norwegian Fisheries case the Court, in discussing
the 10-mile rule for bays, stated (I.C.J. Reports
1951, 116 at p. 131):
". . . 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."
However, it is worth noting, as the Court pointed
out, that Norway had always opposed any attempt
to apply the rule to the Norwegian coast. In
striking contrast, Iceland, while reserving the
aspiration to work for an extension, yet freely
acknowledged that she would abide by an outer
limit of 12 miles in the Exchange of Notes of
1961. The elucidation of an aspiration or
pronounced intention, is not incompatible with
the concession that, until it is achieved, she is
bound by the 12-mile rule.
In fairness to the contentions of Iceland, however,
it should be stated that the analysis above does
not do full justice to the arguments which, on
various official occasions, she has advanced. She
starts from a different premise which implicitly
denies the premise on which the concept of an
"established" law depends. Because of the wide
divergencies in State practice, she contends, in
effect, that there is no law or at best a lacuna in
the Jaw viewed as a body of restraints on State
conduct, and therefore [p 59] the law does not
prevent the extension by each State of its
exclusive fisheries jurisdiction. She is not
claiming an exception to an established rule but a
different kind of rule, namely a permissive rule
which, in the absence of a specific rule to the
contrary, permits the coastal State in a special
situation to extend unilaterally its jurisdiction to
an extent that it deems reasonable. She further
claims that her extension is "reasonable" because
it coincides generally with the limits of her
continental shelf.
It is immediately apparent that the argument
above invites an enquiry not only into the
question of the burden of proof but at a deeper
theoretical level into the much discussed question
of State autonomy and freedom of State action
and presumptions flowing from such concepts. In
turn this goes back to the controversial Lotus case
FN1 and to the manner in which the International
Court of Justice handled the submissions in the
Anglo-Norwegian Fisheries case FN2. It would
extend this opinion to inordinate lengths if these
matters were broached in depth. Suffice it to
suggest at present that, while the burden of proof
problem may have some relevance in determining
factual and jurisdictional issues, it has little
bearing on the present case. Likewise with the
notion of freedom of State action. Borrowing
from Lauterpacht FN3, I would put the matter as
follows: if the exercise of freedom trespasses on
the interests of other States then the issue arises
as to its justification. This the Court must
determine in light of the applicable law and it
Page 36 of 112
does not advance the enquiry to attempt to
indulge in a presumption or to lean on a burden
of proof. It can be argued, for instance, that
Iceland was the "actor" who sought to change the
established law and the burden of proving legal
justification rests on her. Conversely it can be
argued that the Applicant was in the role of
plaintiff and should therefore have the burden of
establishing the illegality of Iceland's actions. In
either event the Court must determine the rights
of the Parties. Freedom of State action and
burdens of proof suggest analogies to the criminal
and civil procedures of some States. Applied to
the present case the analogy is misplaced. [p 60]
------------------------------------------------------------
---------------------------------------------------------
FN1 P.C.I.J., Series A, No. 10 (1927) at p. 18. Cf.
Hudson, The Permanent Court of International
Justice (1943), pp. 61 1, 612; D'Amato, op. cit.,
supra, pp. 178-189.
FN2 I.C.J. Reports 1951, p. 116. Cf. Waldock,
"The Anglo-Norwegian Fisheries Case", 28
British Year Book of International Law (1951). p.
114 and Fitzmaurice, "The Law and Procedure of
the International Court of Justice, 1951-1954:
General Principles and Sources of Law", 30
British Year Book of International Law (1953),
pp. 8-26.
FN3 Lauterpacht, The Development of
International Law by the International Court
(1958), p. 361. See also, Fitzmaurice, "The Law
and Procedure of the International Court of
Justice, 1951-1954: Questions of Jurisdiction,
Competcnce and Procedure", 34 British Year
Book of International Law (1958), pp. 149-150.
------------------------------------------------------------
---------------------------------------------------------
Although, in my view, the 12-mile rule may be
grounded on a sounder theoretical base than an
alternative rule grounded on a concept of "no
law" or a "gaping lacuna" in the law FN1, it yet
seems to me that the way in which customary
international law evolves, as noted previously,
made it unnecessary for the Court to pronounce
on the first submission of the United Kingdom,
namely that Iceland's unilateral extension was
without foundation in international law ipso jure
and erga omnes. It sufficed for the disposal of the
case that under international law Iceland's
extension could not be opposed to the Applicant.
------------------------------------------------------------
---------------------------------------------------------
FN1 The difficulty with a "no law" concept is
that it is apt to imply that States are free to fix
any limit they think reasonable, a notion likely to
generate confusion and breed conflict. Clearly the
fact that there are discordances in the practice of
States leading to a large measure of uncertainty
casts doubt on the utility or wisdom of a specific
rule, but the alternative is not to leap into the
abyss of a legal vacuum. The better alternative is
to recognize exceptions to the prevalent norm or
to re-classify the norms themselves to take
account of special circumstances as was done in
the Anglo-Norwegian Fisheries case. At the
theoretical level the difficulties with a "no law" or
"vacuum" concept are profound. The references
cited in the footnotes to the preceding paragraph
contain discussions of some of these difficulties.
Nor is this all. The fact that the States in 1958 or
1960 did not reach a formal agreement on a
specified limit does not signify that they accepted
as an alternative the extreme postulate of State
autonomy which would accord each State the
freedom to set such limits as it chose. Indeed the
conferences were based on the opposite
assumption, an assumption dictated by a
consciousness of the existence of a community
interest hostile to the notion of uninhibited
freedom. It is worth recalling that the 1958
Conference soundly rejected the only proposal
coming to a vote on the question of allowing a
coastal State discretion to set any limit it wished
for the territorial sea. While obviously problems
of the territorial sea are not co-extensive with
those concerning fisheries, yet the problem of
unilateral extensions may be common to each. In
the First Committee the proposal was rejected by
a vote of 4412919 and in the plenary session by
47/21/17. More significant is the fact that no
further proposals of the kind were made.
McDougal and Burke, The Public Order of the
Oceans (1962), pp. 497-498.
------------------------------------------------------------
---------------------------------------------------------
In the course of the oral proceedings a Member of
the Court put to counsel the following question:
"Is it the contention of the Applicant that its first
three submissions, that is to say, submissions (a),
(b) and (c), are so connected that it is necessary
Page 37 of 112
for the Court to adjudicate on the first in order to
adjudicate on the second and third?" (CR 74/1, p.
33.)
In replying, counsel, after analysing the purport
of all three submissions, declared:
"It follows when these three submissions are
analysed in this way that (a), (b) and (c) are not
so connected that the second and third cannot
stand without the first, and in the view of Her
Majesty's Government it is therefore open to the
Court to adjudicate on the second and the third of
those submissions without adjudicating upon [p
61] the first, it being of course understood and
accepted that submissions (b) and (c) are based
on general international law and are of course not
confined merely to the effect of the Exchange of
Notes." (CR 74/3, pp. 23, 24; emphasis added.)
The observations of counsel are, of course, in no
sense controlling on the Court. Nevertheless it is
not without significance to observe that the
Applicant considered that its first submission was
not essential to the disposition of the case, a
position which the Court, in the exercise of its
independent discretion, also assumed.
At a broader policy level it can also be argued
that it might have been undesirable to specify any
set limit for the extension of fisheries
jurisdictions erga omnes. It is apparent from even
a casual survey of the massive literature on the
subject that there are so many disparities in the
types of fishes and their migratory ranges, to say
nothing of wide variations in the extent of coast
lines and continental shelves, that the wisdom of
freezing a limit applicable generally may be
questioned. Fish and especially free swimming
fish such as those involved in the present case
are, of course, no respecters of national
jurisdictions. The problem may well call for the
application of flexible standards instead of fixed
rules.
Charles De Visscher, in his book entitled Theory
and Reality in Public International Law (Corbett
Translation, 1'957) addressed himself to the broad
problem involved in the specification of general
norms in his consideration of the Anglo-
Norwegian Fisheries case. In the course of his
discussion he quoted with approval (n. 38, p. 154)
the following passage from Brierly, extracted
from the latter's 1936 lectures before the Hague
Academy of International Law:
"Uniformity is good only when it is convenient,
that is to say when it simplifies the task in hand;
it is bad when it results from an artificial
assimilation of dissimilar cases . . . The nature of
international society does not merely make it
difficult to develop rules of international law of
general application, it sometimes makes them
undesirable." (58 Recueil des cours, pp. 17-18.)
This gratuitous digression in the present opinion
is not intended to suggest that in the present case
the Court is directly concerned with the complex
jurisprudential problem of knowing how best to
reconcile the need for general norms in the
interest of some degree of predictability versus
the need to avoid them in the interest of the
particularistic and individualistic nature of the
subject-matter to which the norms are applicable.
The digression is only intended to point to one of
the broader aspects of fisheries jurisdiction
impinging on the present case. [p 62]
***
From all that has been said above I find that the
Court was justified in taking an intermediate
position between the narrow approach based on
breach of the treaty, to which allusion was made
earlier, and the more expansive approach based
on the United Kingdom's first submission. In
short, the first two subparagraphs of the dispositif
are preferable to permissible alternatives. It
remains to discuss the more controversial
position reflected in subparagraphs 3 and 4 of the
dispositif.
***
The jurisdiction of the Court to entertain the
merits of the dispute was, as previously noted,
definitively established by its Judgment of 2
February 1973. But the endowment of
jurisdiction in the sense of the general power to
deal with the merits is one thing; the nature and
scope of that power is quite another.
It is precisely with reference to the third and
fourth subparagraphs of the dispositif that
questions of the latter kind have been raised
concerning the extent of the Court's assumption
Page 38 of 112
of jurisdiction.
The third subparagraph states that the two Parties
are under mutual obligations to undertake
negotiations in good faith for the equitable
solution of their differences concerning their
respective fishery rights in the areas around
Iceland to seaward of the fishery limits agreed to
in the Exchange of Notes of 1961. The fourth
subparagraph indicates the guidelines for doing
so. Briefly summarized it specifies that in the
distribution of the fishery resources, account be
taken of the preferential share to which Iceland is
entitled to the extent that she qualifies as a State
in a condition of special dependence on coastal
fisheries; that account also be taken of the
established rights of the United Kingdom; that the
rights of both States should be given effect to the
extent compatible with the conservation and
development of the fishing resources in the area;
that regard also be paid to the interests of other
States in the conservation and equitable
exploitation of the resources and that the two
States keep under review the measures required
for the conservation, development and equitable
exploitation of the resources in light of scientific
and other available information.
The United Kingdom in its Memorial on the
merits (paras. 300-307) earnestly pressed upon
the Court the desirability of applying equitable
principles in fairness to both Parties, an attitude
also reflected in the submissions contained in its
Application and Memorial on the merits and
repeated emphatically in the oral hearings. A
similar attitude was displayed by the Applicant in
the companion case concerning the Federal
Republic of Germany. The justification was
rooted in the acknowledged need to balance the
traditional rights of the Applicant against the
preferential rights of Iceland in the interests of a
rational approach to the [p 63] exploitation and
conservation of the fisheries in the waters under
dispute.
It is true, of course, that the Court, as master of
its own jurisdiction, is not controlled by the
position taken by the Applicant but is compelled
to inquire into the scope of its own jurisdiction in
light of its source. Nevertheless it is not irrelevant
that the Party whose interests are most vitally
affected should urge upon the Court a solution of
this kind, grounded legally on the principle
enunciated in Article 2 of the Convention on the
High Seas of 1958 which, while not binding on
Iceland as a matter of conventional law, is yet
binding as a declared and acknowledged norm of
international law. Why then should the Court not
respond favourably to the proposed equitable
solution of the controversy? FN1
------------------------------------------------------------
---------------------------------------------------------
FN1 In the words of Judge Hudson: "What are
widely known as principles of equity have long
been considered to constitute a part of
international law, and as such they have often
been applied by international tribunals"
(Diversion of Water from the Mease, 1937,
P.C.I.J., Series A/B, No. 70, p. 76). I would add
that those principles are particularly relevant
when the issues focus on the common use of
limited resources and the applicable norms of
international law is couched in the form of a
"standard".
------------------------------------------------------------
------------------------------------------------
***
As I understand it, the argument questioning the
Court's power to deal with the above issues rests
on the following chain of reasoning. Both the
existence and scope of the Court's jurisdiction is
confined to the Exchange of Notes of 1961. The
reference in the Exchange of Notes to a "dispute"
must be strictly confined to the kind of dispute
contemplated by the parties in negotiating and
framing the Exchange of Notes. This, and this
alone, constitutes the subject-matter to which the
Court's jurisdiction attaches. At no relevant time
was there a dispute concerning preferential rights
or conservation. Quite the contrary, it concerned
only the extension itself and whether it could be
held well founded under international law. The
Court is not privileged to change the nature of the
dispute without doing violence to its endowment
of limited power in the Exchange of Notes. This
interpretation is asserted to be fortified by the
travaux preparatoires and to be consonant with
the frequently stated proposition that the Court
should, as a matter of policy, exercise the greatest
restraint in assuming or extending its own
jurisdictional powers. So runs the argument. In
my view the argument, while plausible, is not
sufficiently persuasive. It is true, of course, that
Page 39 of 112
the exclusive source of the Court's jurisdiction is
the Exchange of Notes; it is also fair to say that
the major subject discussed in the negotiations
preceding the Exchange dealt with the extension
as such and not with preferential rights or
conservation. But references to the latter were not
altogether lacking. [p 64]
Indeed at the very first discussion on 1 October
1960 Sir Patrick Reilly in his opening remarks
conceded that there may be areas both inside and
outside the 6-12-miie zone "which on the
scientific principle of conservation should be
reserved from trawling". Mr. Andersen of Iceland
countered with the assertion that "conservation
measures applicable to all alike were not
sufficient to safeguard Iceland's coastal fisheries"
(Records of the Anglo-Icelandic Discussions, 1
October 1960 to 4 December 1960, at pp. 1 and
5). Furthermore it should be recognized that a
certain ambiguity attends the meaning of the term
"exclusive", a point to be alluded to later and
revealed in some of the diplomatic exchanges
subsequent to the adoption of the Exchange of
Notes, as, for instance, in the Government of
Iceland's Note of 11 August 1972 in which
preferential rights are expressly mentioned
(United Kingdom Memorial on the merits, Annex
10, p. 125). But the more important point, in my
view, is the larger context in which the dispute
itself is located.
***
It will be recalled that the Exchange of Notes
speaks of the Althing Resolution of 5 May 1959
(quoted in para. 24 of the Judgment). The
significant point is that this resolution explicitly
referred to the "policy adopted by the Law of
1948 concerning the Scientific Conservation of
the Continental Shelf Fisheries . . .".
The title of the 1948 Law is a "Law concerning
the Scientific Conservation of the Continental
Shelf Fisheries" and Article 1 authorized the
Ministry of Fisheries to ". . . issue regulations
establishing explicitly bounded conservation
zones within the limits of the continental shelf of
Iceland . . ." (emphasis added). It went on to
declare that "all fisheries shall be subject to
Icelandic rules and control. . .".
Reverting to the Exchange of Notes of 1961 it is
necessary to emphasize that it does not refer to
any particular type of extension but only that the
Government would work for the implementation
of the 5 May resolution "regarding the extension
of fisheries jurisdiction". Furthermore the terms
used to describe the "dispute" are by no means
restricted to the fact of extension but to "a dispute
in relation to such extension" and in the event of
such dispute, "the matter" shall, at the request of
either party be [p 65] referred to the Court
(emphasis added). The terms are quite general
and, on the face of it, hardly suggest the need for
a restrictive interpretation.
In light of the importance of the 5 May resolution
and its basis in the Law of 1948 it seems to me
clear that a too narrow interpretation of the 1961
Exchange of Notes is neither compelled by its
terms nor warranted by the context in which the
whole dispute is located.
Perhaps a simple hypothetical example will help
to illuminate the issue. Suppose Iceland had not
purported to extend its exclusive jurisdiction in a
fashion that was intended or likely to extinguish
the rights of the United Kingdom but, under the
guise of preferential rights and conservation, she
laid down conditions that the United Kingdom
found intolerable. Could it be plausibly argued
that this type of extension, although expressly
keyed to preferential rights and conservation
needs, fell completely outside the ambit of the
Exchange of Notes? Would it not still fall to the
Court to decide the issue under international law?
And could it be plausibly argued that in doing so
the Court had somehow converted one type of
"dispute" into another "type"?
If it is contended that this illustration misses the
point since such an extension would, in fact, be
"exclusive" I can only reply that this observation
misses the point of the illustration.
I agree entirely with the conclusion stated in the
Judgment that Iceland's claim was, in fact, an
exclusive one. Indeed this conclusion is essential
to the rationale of the Judgment. Furthermore it
can be readily conceded that an assertion of
jurisdiction which permits a State to fish in the
disputed area only by the tolerant forbearance of
the coastal State may be characterized as the
assertion of an exclusive claim. At the same time,
it should be noted that a certain ambiguity attends
Page 40 of 112
the notion of "exclusive" jurisdiction as revealed
in the uncertainties which attach to many claims
of States reaching beyond the 12-mile limit.
These uncertainties were also reflected to some
extent in the official diplomatic exchanges
between the United Kingdom and Iceland and
actual practice in the present case. It is not
surprising therefore that, in the course of the oral
proceedings, in response to a question put by a
Member of the Court, counsel for the Applicant
required (in the mimeographed version of the
hearing of 29 March 1974) nine pages to analyse
the many meanings of "exclusive" in State
practice in which three types were emphasized
(pp. 24-33). The hypothetical illustration is
designed to show that an asserted claim based on
conservation needs would not fall outside the
reach of the Exchange of Notes. [p 66]
Viewed from the point of view of the United
Kingdom it would be quite irrelevant whether,
under the stated hypothesis, it was or was not
objectively an exclusive claim. The point is that a
claim of extended jurisdiction asserted on
conservation grounds would not be excluded
under the Exchange of Notes.
The weakness, as I see it, in the argument which
would deny the Court jurisdictional power to
respond to this issue is rooted in a too simplistic
concept of the nature of the dispute. Clearly a
court could not convert a dispute between two
farmers over the ownership of a cow into one
over the ownership of a tractor. But the dispute
covered in the Exchange of Notes is not of this
clearly delineated character. To speak of the
extension of "fisheries jurisdiction" is to speak of
the projection of national power into an area that
is not national and that could impinge on the
rights of the Applicant. And it must be recalled
that one of the main purposes of the Exchange of
Notes was to provide an amicable method of
resolving a dispute.
No doubt the Court could have disposed of the
dispute by limiting its dispositif to the first two
subparagraphs. It could also have disposed of the
dispute by responding to the United Kingdom's
first submission as indicated earlier in this
opinion. It was not compelled to refer to
preferential rights and conservation needs. This, I
take to be a question of judicial discretion and
even prudence. But all this does not entail the
consequence that it is precluded from dealing
with the dispute on the broader grounds so
earnestly sought by the Applicant. To read the
Exchange of Notes of 1961 otherwise, that is to
say, in a too restrictive fashion, may have
sufficed to decide the immediate issue between
the Parties but, in my view, it would not have
sufficiently sufficed to resolve the dispute by
recognizing the interests of both Parties and
supplying guides for their future conduct,
especially when the dispute is itself heavily
impregnated with elements of what is sometimes
called distributive justice.
I hasten to add that I am not suggesting that the
Court, itself, should attempt to resolve issues
involving those elements. But, to repeat, it is not
beyond the range of its function to indicate the
nature of the legal rights involved and to provide
appropriate guidelines in order to facilitate the
better resolution of the dispute as was done in the
Continental Shelf cases. This, of course, is what
the third and fourth subparagraphs of the
dispositif purport to do. [p 67]
***
Although the observations above may suffice to
dispose of the jurisdictional issue, another and, in
my view, more troublesome problem is involved.
It is arguable that while the Court was privileged
to pronounce upon the existence and relevance of
the legal norms embraced in the concept of
preferential and established rights in light of
conservation needs, it should have stopped short
of imposing on the parties a duty to negotiate. In
other words, it should have merely indicated the
basis for negotiations without including a duty to
engage in them. Indeed it is arguable that, apart
from lack of adequate authority, it is
disingenuous to impose this duty on the Parties,
especially in light of the interim agreement of
November 1973, an agreement which would
appear to render tenuous the invocation of Article
33 of the Charter, the terms of which are confined
to any dispute, "the continuance of which is likely
to endanger the maintenance of international
peace and security . . .".
Of course, to put the matter in perspective, it
should be observed that a duty to negotiate does
not imply that the parties must immediately or
later engage in negotiations. Obviously one of the
Page 41 of 112
parties would need to initiate them when it
considered that circumstances so required. The
duty to respond would then lie with the other
party. In the present case, owing to the impact of
the interim agreement of November 1973 it is
readily conceivable that the status quo would not
be disturbed until the expiry of that agreement.
The Judgment, in paragraphs 73-77, addresses
itself to the problem of its authority to specify the
duty to negotiate. It states that "It is implicit in
the concept of preferential rights that negotiations
are required in order to define or delimit the
extent of those rights . . ." (para. 74). It appears to
draw upon the need for collaboration flowing
from the very nature of preferential rights; it
alludes to the requirement of "collaboration"
prescribed in the 1958 Geneva Resolution on
Special Situations relating to Coastal Fisheries;
and it stresses a dictum in the North Sea
Continental Shelf cases which stated that the
obligation to negotiate assumed in the Special
Agreements of the Parties (in that case):
". . . merely constitutes a special application of a
principle which underlies all international
relations, and which is moreover recognized in
Article 33 of the Charter of the United Nations as
one of the methods for the peaceful settlement of
international disputes" (I.C.J. Reports ،969, p. 47,
para. 86).
The Judgment in the present case did not,
however, specifically ground its holding on
Article 33 of the Charter but suggested that its
holding, based on the very nature of the rights in
question, would correspond to the Principles and
provisions of the Charter. [p 68]
Reference to the "very nature of the respective
rights of the Parties" (para. 75) while justified,
may yet appear to be too cryptic a description of
an assumed power and therefore to need some
elaboration.
In any event, I submit that the conclusion reached
can be fortified by reference to the widespread
practice of States both in the matter of
conservation of fishery resources and,
analogically, in other areas in which the
conflicting rights of States impinge on the use of
a common resource.
In its Memorial on the merits the Applicant, in
paragraphs 266-281, has called attention not only
to the North-East Atlantic Fisheries Convention
of 1959 to which 14 States including both the
Applicant and Iceland are parties but to the
International Convention for the North-West
Atlantic Fisheries of 1949; the Atlantic Tuna
Convention of 1966; the USA/USSR King Crab
Fisheries Agreement of 1969; the USA/Cuba
Shrimp Convention of 1949; the Brazil/USA
Shrimp Conservation Agreement of 1972; the
Convention on the Conservation of the Living
Resources of the South-East Atlantic of 1969; the
Canada/Norway Agreement on Sealing and the
Conservation of Seal Stocks in the North-West
Atlantic of 1971 and the Iceland/Norway/USSR
Agreement on the Regulation of the Fishing of
the Atlanto-Scandinavian Herring of 1972. After
enumerating numerous other agreements and
conventions in the Baltic, the Black Sea, the
Pacific and the Antarctic, the conclusion is
reached that in six oceans and seas, 30 or more
States have participated in international
agreements regulating high seas fisheries when
the need for conservation, regulation and control
is present FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 According to a compilation in Lay,
Churchill, Nordquist, New Directions in the Law
of the Sea, Vol. II, pp. 771-798, there were, as of
1 August 1972, no fewer than 210 bilateral and
multilateral agreements dealing with various
aspects of the law of the sea. After a
characteristically thorough survey, McDougal
and Burke conclude that "Practically all
international agreements since the beginning of . .
. conservation effort in 1911 . . . witness the
general understanding that the participation of all
States substantially concerned with a fishery is
necessary for effective action". McDougal and
Burke, The Public Order of the Oceans (1962) at
p. 965.
------------------------------------------------------------
---------------------------------------------------------
It is not here suggested that each of these
agreements resulted from the application of a
prior duty to negotiate. Yet clearly each was the
consequence of an imperatively felt need to
engage in negotiations in order to accommodate
the conflicting rights of the parties. It is worth
Page 42 of 112
recalling also that the preamble to the North-East
Atlantic Fisheries Convention of 1959 puts all the
parties on record as: [p 69]
"Desiring to ensure the conservation of the fish
stocks and the rational exploitation of the
fisheries of the North-East Atlantic Ocean and
adjacent waters."
And the terms of the Convention on Fishing and
Conservation of the Living Resources of the High
Seas places the duty of acting to conserve
resources on all States. As stated in Article 1 (2):
"All States have the duty to adopt, or to co-
operate with other States in adopting, such
measures for their respective nationals as may be
necessary for the conservation of the living
resources of the high seas." (Emphasis added.)
This is further fortified by Article 4 (1):
"If the nationals of two or more States are
engaged in fishing the same stock or stocks of
fish or other living marine resources in any area
or areas of the high seas, these States shall, at the
request of any of them, enter into negotiations
with a view to prescribing by agreement for their
nationals the necessary measures for the
conservation of the living resources affected."
(Emphasis added.)
Although Iceland was not a party to this
Convention it is yet possible to surmise that, in
light of the practice of States and the widespread
and insistent recognition of the need for
conservation measures that the principle it
announces may qualify as a norm of customary
international law, bearing in mind the observation
made by Judge Tanaka in another context, that:
"The role played by the existence of a world-wide
international organization like the United
Nations, its agency the International Law
Commission, and their activities generally do not
fail to accelerate the rapid formation of a
customary law FN1." (I.C.J. Reports 1969, p.
177.)
------------------------------------------------------------
------------------------------------------------
FN1 Compare also the observation of Judge
Sarensen in I.C.J. Reports 1969, pp. 242247. See
generally, Baxter, "Treaties and Custom", Hague
Academy of International Law, Recueil des
cours, 1970,1, pp. 31-104.
------------------------------------------------------------
------------------------------------------------
Further support can be derived from the
qualifying paragraph of Article 2 of the High
Seas Convention, to which frequent allusion is
made in the text of the Judgment. The obligation
to pay due regard to the interests of other States
contained in Article 2 is, of course, a norm of law
which lies upon all States. It can be triggered by
any State whose interests are allegedly infringed
by another State involving thereby an obligation
to come to some kind of peaceful arrangement. It
is worth noting, also, that the International Law
Commission in commenting on [p 70] the
preliminary draft which ultimately emerged as
Article 2 of the High Seas Convention indicated
that its rules concern particularly: "The rights of
States relative to the conservation of the living
resources of the high seas" (Yearbook of the
International Law Commission, Vol. II, 1956, p.
278; emphasis added.)
It would be tedious and unnecessary to extend
this discussion by referring to analogous
problems in areas other than fisheries. Yet, I
cannot forbear calling attention to Judge Jessup's
observations in his separate opinion in the North
Sea Continental Shelf cases in which he alluded
to the principle, fortified by State practice, of the
need for international co-operation in the
exploitation of a "natural" resource common to
more than one State. To the examples he cites and
to those in Onorata's "Apportionment of an
International Petroleum Deposit", 17
International and Comparative Law Quarterly
(1969), to which he referred, many others could
be added. (I.C.J. Reports 1969, pp. 82-83.)
Projected against this broad background, the
power of the Court to adjudicate on this issue and
to specify a duty to negotiate in good faith, seem
to me to be well founded in law.
***
The reference earlier in this opinion to elements
of "distributive justice" impels me, even at the
risk of appearing "textbookish" to add an
explanatory comment.
Page 43 of 112
The present case involves, both in its practical
aspect and its long-range implication the problem
of the wise or meritorious allocation of limited
resources or what are presumed to be limited
resources. This presents an almost typical
instance of what, in classical theories of justice,
may be described as distributive as opposed to
corrective (sometimes called remedial) justice.
Obviously this is no place to undertake an
abstract discussion of the requirements of what
may be a just solution to a specific controversy.
The general subject commands an immense
literature and it would be at once pretentious and
possibly irrelevant to broach it. I am merely
suggesting that, when contrasted with corrective
justice, it may provide a helpful analytical tool in
considering the nature of a dispute, the role of a
court and the character of the norms at its
disposal FN1. [p 71]
------------------------------------------------------------
---------------------------------------------------------
FN1 There are many ways of analysing the
concept of distributive justice and some were
discussed in various opinions in the North Sea
Continental Shelf cases. I would agree that in the
context of that case the use of the concept by the
Federal Republic of Germany was questionable.
------------------------------------------------------------
---------------------------------------------------------
Allowing for gross over-simplification the
distinction may be put this way: questions of
establishing a system or regime of equitable
allocation of resources engage elements of
distributive justice; on the other hand
disturbances to the system fall under the province
of corrective justice FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 The distinction (although not in the form I
have put it) is usually attributed to Aristotle who
discusses it in connection with "particular" justice
in his Politics (III, 9 and V, 1) and his
Nicomachean Ethics (V, 3, 1-17). See also
Aristotle, Ethics (Everyman edition, 1950), pp.
112 et seq. Additional references and a brief
explanation of the distinction may be found in
Academy of International Law, 91 Recueil des
cours, 1957-1, pp. 549-550.
------------------------------------------------------------
---------------------------------------------------------
It is not unusual to assume that the former lies
exclusively in the lap of the legislative branch
and the latter in that of the Court. But this easy
way out of the problem ignores the turbulent way
in which disputes are generated, the manner in
which they are put in the lap of the Court, and the
need to resolve them.
In the present case it may be urged, as Iceland
has, that the wise allocation of resources should
be left to the norms of law which may emerge
from the Conference on the Law of the Sea.
Whatever virtue adheres to this position is,
however, neutralized by the sheer fact that the
Court must decide a case in which, basically,
elements of distributive justice intrude.
Its capacity to do so is not precluded by any
theory of the judicial process which inhibits it
from analysing all the elements involved in any
dispute, marshalling ail the supporting data, even
of a highly sophisticated scientific character, and
"laying down the law" in terms of the
establishment of a regime of allocation. But
considerations of a practical, political and
psychological nature dictate that this function is
best done at the outset by the parties themselves
or better still by other bodies specially qualified
to assess the conflicting interests, the relevant
scientific factors, the values involved, and the
continuing heed for revising the regime in light of
changing conditions. The Court's role is best
limited to providing legal guide-lines which may
facilitate the establishment of the system and in
the event of a subsequent dispute, to help redress
disturbances to it. Meanwhile the Court has
consistently indulged the assumption that the
Parties will, in fact, negotiate in good faith.
This, of course, is the approach taken by the
Court in subparagraphs 3 and 4 of its dispositif.
Viewed in this light, it supplements the findings
in the first two subparagraphs, while also
responding to the requirements of distributive
justice.
(Signed) Hardy C. Dillard. [p 72]
SEPARATE OPINION OF JUDGE DE
Page 44 of 112
CASTRO
[Translation ]
I have voted with the majority, but do not
consider that I can wholly subscribe to the
reasoning in the Judgment. I therefore venture, in
exercise of the right conferred on me by the
Statute, to set out in detail the reasons for my
vote.
I. The Texts to Be Interpreted
I. The 1961 Agreement
The Exchange of Notes of 11 March 1961
underlies the whole case; the compromissory
clause contained therein constitutes the source of
the Court's jurisdiction (Judgment of 2 February
1973). It is necessary to interpret its content in
order to ascertain the intentions of the parties,
which is the first factor to be taken into account
by the Court.
The Exchange of Notes took place at a time when
the law of the sea was undergoing a crisis in its
development, and it is in this context that it
should be considered and then interpreted FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 On the relationship between the Icelandic
claims and the development of the law of the sea,
see section III.
------------------------------------------------------------
---------------------------------------------------------
On 5 April 1948 the Althing adopted the "Law
Concerning the Scientific Conservation of the
Continental Shelf Fisheries", and by a decree of
30 June 1958, Iceland's fisheries limits were
extended to a distance of 12 miles. The United
Kingdom challenged the validity of this action
and there ensued serious incidents and lengthy
negotiations. It was during this period that the
Resolution of the Althing of 5 May 1959 was
passed and the United Nations Conference on the
Law of the Sea was held in 1960. Finally,
following talks in London and Reykjavik, the
dispute was settled by the Exchange of Notes of
11 March 1961. The United Kingdom
Government accepted Iceland's unilateral
declaration of 1958 stating that it "will no longer
object to a 12-mile fishery zone around Iceland".
This acceptance by the United Kingdom was
explained in a letter from Her Britannic Majesty's
Ambassador to the Foreign Minister of Iceland as
being "in view of the exceptional dependence of
the Icelandic nation upon coastal fishery for their
livelihood and economic development". Iceland's
[p 73] special interest in the fisheries of its
coastal waters was thus recognized FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 This special interest of Iceland was
recognized by the Court in the Order of 17
August 1972 (I.C.J. Reports 1972, pp. 16 and 17)
and in its Judgment of 2 February 1973 (I.C.J.
Reports 1973, p. 20).
------------------------------------------------------------
---------------------------------------------------------
The United Kingdom accepted a 12-mile zone,
but only because of Iceland's special interest in
the adjacent seas. Iceland for its part regarded the
12-mile limit as provisional and did not accept it
as the maximum and permanent limit.
The United Kingdom conceded that the following
reservation should be inserted in the Agreement:
"The Icelandic Government will continue to work
for the implementation of the Althing resolution
of 5 May 1959, regarding the extension of
fisheries jurisdiction around Iceland."
The Icelandic Government thus reserved the
power to extend its fisheries jurisdiction at will,
subject to certain conditions or more precisely to
certain restrictions, namely those set out in the
agreement; that six months' notice be given of
any decision to that effect and that any dispute
which might arise over any such extension be
referred to the Court at the request of either party.
Additionally there was an implied restriction that
the purpose of any extension would be to
implement the Althing resolution of 5 May 1959.
In its resolution of 5 May 1959, the Althing had
declared that:
". . . recognition should be obtained of Iceland's
right to the entire continental shelf area in
conformity with the policy adopted by the Law of
Page 45 of 112
1948 concerning the Scientific Conservation of
the Continental Shelf Fisheries".
Thus the Law of 1948 enables the true scope of
Iceland's reservation in its 1961 Notes to be
ascertained. Its purpose was identical to its title:
its direct object was the establishment of
"conservation zones" within the limits of the
Icelandic continental shelf; but, in accordance
with progressive thinking which was already
widespread at the time, the Law went on to lay
down that in the said zones "all fisheries shall be
subject to Icelandic rules and control" (Art. 1).
The statement of reasons for the Law mentioned
Iceland's special interests and declared that:
"It is well-known that the economy of Iceland
depends almost entirely on fishing in the vicinity
of its coasts. For this reason, the population of
Iceland has followed the progressive
impoverishment of fishing grounds with anxiety."
It also referred to the new trends in the law of the
sea, especially the [p 74] growing recognition by
countries which engage in fishing mainly in the
vicinity of their own coasts, of the right of coastal
States to ensure the protection of fishing grounds
in accordance with the findings of scientific
research. The "commentary on Article 1"
explained that it provided for:
". . . the delimitation of the waters within which
the measures of protection and prohibition of
fishing should be applied, i.e., the waters which
are deemed not to extend beyond the continental
shelf; and, on the other hand, the measures of
protection and prohibition of fishing which
should be applied in these waters".
On the question of the sovereignty of States over
fishing grounds in the vicinity of their coasts, the
statement of reasons was not categorical, merely
stating that:
"It would appear, however, to be more natural to
follow the example of those States which have
determined the limit of their fisheries jurisdiction
in accordance with the contour of the continental
shelf along their coasts. The continental shelf of
Iceland is very clearly distinguishable, and it is
therefore natural to take it as a basis. This is the
reason why this resolution has been adopted in
the present draft law."
Under Article 2 of the Law:
"The regulations promulgated under Article 1 of
the present law shall be enforced only to the
extent compatible with agreements with other
countries to which Iceland is or may become a
party."
These texts may be seen as reflecting, to a
moderate extent, the so-called progressive
movement, initiated by President Truman's
Proclamations, and expressed in the trends
towards a renewal of the law of the sea relating to
fisheries which have resulted from the legislation
and the doctrines of Latin American countries.
It seems to me that according to the text of the
Law of 1948 and of the explanations given in the
statement of reasons for the Law, the Icelandic
reservation of 1961 should be interpreted as a
solemn declaration of its intention to extend its
fisheries zone in the future and to do so
unilaterally, by reason of the special interests and
especially the preferential rights of Iceland within
the limits of its continental shelf, such a reserved
right of extension to be enforced in so far as was
compatible with such agreements as Iceland
might conclude with other countries.
It should be noted that in 1948 the Icelandic
Government proceeded with caution; it did
indeed claim to subject the zone superjacent to
the continental shelf to its rules and controls, but
it did so because it saw such areas as
"conservation zones". Therefore, the reservation
made in the Exchange of Notes of 1961 in respect
of the intentions expressed in the [p 75] Althing
Resolution of 1959—which in turn referred to the
Law of 1948— is to be interpreted not as a
reservation of a right to claim exclusive fishing
rights within the limits of the Icelandic
continental shelf, but as a reservation of the right
to claim preferential rights by reason of Iceland's
special interests.
2. The 1972 Althing Resolution
The Althing Resolution of 1972 asserted that the
continental shelf of Iceland and the superjacent
waters were within the jurisdiction of Iceland and
provided that the fishery limits would be
Page 46 of 112
extended to 50 miles from baselines around the
country (para. 1). The extension effected by this
Resolution is the cause of the dispute now before
the Court. The Resolution, however, merits
detailed consideration.
Paragraph 2 states:
"That the Governments of the United Kingdom
and the Federal Republic of Germany be again
informed that because of the vital interests of the
nation and owing to changed circumstances the
Notes concerning fishery limits exchanged in
1961 are no longer applicable and that their
provisions do not constitute an obligation for
Iceland."
The Court has adjudged and declared that the
Notes of 1961 are still in force so far as concerns
the compromissory clause (Judgment of 2
February 1973). In that respect, the Althing
Resolution was considered to be of no effect. For
reasons similar to those set out in the said
Judgment (paras. 36 et seq.), and in the light of
the principles enshrined in Article 42 of the
Vienna Convention on the Law of Treaties, it is
quite clear that Iceland does not have the right to
declare unilaterally that the agreement made in
1961 no longer constitutes an obligation for it.
The Court could confine itself to saying that the
Althing Resolution, proclaiming the lapse of the
1961 Notes, was void and ineffective. But the
other paragraphs of that Resolution should be
considered independently (duae sunt...
stipulationes, una utilis, alia inutilis, neque
vitiatur utilis per hanc inutilem, D.45.1.1, para.
5), and in relation to the 1961 Notes in question.
Paragraph 1 is no more than the implementation
of what had been announced in 1961, i.e., the
extension of Iceland's jurisdiction over the whole
continental shelf area. It now describes the Law
of 1948 as the "fundamental policy of the
Icelandic people" FN1. The aim of the Resolution
and that of the 1948 Law were in fact the same,
i.e., "to strengthen the measures of protection
essential to safeguard the vital interests of the
Icelandic people in the sea surrounding its coasts"
and to prevent all that [p 76] was "harmful to the
maintenance of the resources of the sea on which
the livelihood of the Icelandic people depends"
(Government of Iceland's aide-memoire of 31
August 1971).

------------------------------------------------------------
---------------------------------------------------------
FN1 It should be noted that Article 7 of the
Icelandic Regulations of 14 July 1972 states that:
"these regulations are promulgated in accordance
with Law No. 44 of 5 April 1948, concerning the
scientific conservation of the continental shelf
fisheries."
------------------------------------------------------------
---------------------------------------------------------
If the decree of 30 June 1958 is borne in mind,
the 1972 Resolution can be considered as the
adoption of a position in view of future
negotiations, the aim being to adapt Iceland's
jurisdiction to the new trends in the law of the sea
and to take advantage of a fresh crisis in the
development of that law. The demand for a zone
of exclusive jurisdiction (cf. above aide-memoire)
was formulated in most moderate terms. The
1972 Resolution pointed out that:
". . . efforts to reach a solution of the problems
connected with the extension [will] be continued
through discussions with the Governments of the
United Kingdom and the Federal Republic of
Germany FN1" (para. 3).
------------------------------------------------------------
------------------------------------------------
FN1 This statement, which appears in the middle
of the Resolution, seems to me to be highly
significant; problems which the 1961 Exchange
of Notes made it possible to bring before the
Court are referred to negotiation.
------------------------------------------------------------
------------------------------------------------
In those discussions, the Icelandic representatives
emphasized the importance of a positive reaction
from the British side to a point regarded as
fundamental: "recognition of preferential rights
for Icelandic vessels as to fishing outside the 12-
mile limit." (Government of Iceland's Note of 11
August 1972.)
3. The 1973 Agreement between the United
Kingdom and Iceland
The Court has been informed of the Exchange of
Notes constituting an interim agreement on
fisheries between the Government of the United
Page 47 of 112
Kingdom and the Government of the Republic of
Iceland, dated 13 November 1973.
This agreement deprives of effect as between the
Parties the Orders of the Court made on 17
August 1972 and 12 July 1973, indicating interim
measures. It establishes a temporary regime valid
for a period of two years. The agreement is
temporary "pending a settlement of the sub-
stantive dispute". It is also stated that "its
termination will not affect the legal position of
either Government with respect to the substantive
dispute" (para. 7).
The Court may wonder whether the effect of the
1973 agreement is only to replace the interim
measures laid down in the Orders of the Court by
the Exchange of Notes. It seems to me that this
agreement has a wider and more general scope
which should be examined.
On that same date, 13 November 1973, the
United Kingdom Prime Minister said in the
House of Commons, in reply to Mr. Harold
Wilson:
"Our position at the World Court remains exactly
as it is, and the agreement is without prejudice to
the case of either country in this matter. This is an
interim agreement covering two years from the [p
77] moment of signature this afternoon, in the
expectation that the Conference on the Law of the
Sea will be able to reach firm conclusions. We all
know the difficulties facing a conference on the
law of the sea, but both Governments hope that it
will have been possible by the expiration of this
agreement to reach agreement on the law of the
sea and that that will then govern the situation."
The Court cannot ignore the terms of this
agreement and the interpretation, given in the
House of Commons, of its aims and intentions. It
is thus placed in an embarrassing position.
As a result of this agreement, the Court's
judgment on the merits of the case will have no
immediate effect. It has been subjected by the
Parties to a waiting period of two years and to
two conditions, the first concerning a settlement
of the dispute by a new agreement and the second
relating to an agreement at the Conference on the
Law of the Sea. All this is irregular and hardly in
keeping with what seems to be the function of the
Court.
This agreement also shows that the Parties do not
believe that the Court will be able to settle their
dispute. They have found a solution to certain
issues referred to the Court, albeit for a period of
two years only. This agreement is an interim one,
but it was concluded "pending a settlement of the
substantive dispute". Now the settlement which
the Parties say they are waiting for is not that
which may result from a judgment of the Court.
This is obvious, in view of the attitude of Iceland,
which continues to deny that the Court has
jurisdiction. The hope of the Parties that they will
be able to reach a definite settlement is based on
negotiations now in progress, whether or not they
are carried on with the Conference on the Law of
the Sea in view.
Does the announcement of these negotiations
justify suspending the proceedings? It is true that
peaceful settlement of disputes should be brought
about above all by means of negotiation. The
Court is open to States to settle issues of a legal
nature which they may refer to it, but a dispute is
ripe for reference to the Court, when negotiations
between the parties reach deadlock and when the
success of the negotiations has definitively been
ruled out as a result of a non volumus or a non
possumus of the parties. I do not know of any
precedent which might help to answer this
question; in my opinion, once proceedings have
been initiated, there is no way of suspending
them, and they should continue unless the case is
settled out of court or discontinued.
The agreement constitutes a valuable argument in
favour of cautious solutions. It shows that the
readiness expressed by Iceland in the 1972
Resolution to seek a solution of the problems
connected with the extension through discussions
was not an empty formula. It also shows that a
judgment of the Court, delivered before the
Parties reach a settlement through negotiations on
the substance of the dispute, and drawn up
without taking into consideration the indicative
value of [p 78] the agreement, could be an
insurmountable obstacle to a negotiated
settlement of the dispute—and that would be
contrary to the essential purpose of the Court
which is to contribute to the peaceful settlement
of disputes.
Page 48 of 112
II. The Burden of Proof
A preliminary question which arises is that of the
burden of proof.
The United Kingdom Memorial on the merits
asserted that "the burden of proving that
international law now recognizes the right of a
coastal State to make such an exclusive claim as
Iceland is now making rests upon Iceland". In
support of this assertion, it stated that the
Exchange of Notes of 1961 represented the law as
it then existed, and that the conclusion to be
drawn therefrom was that "an assertion of
exclusive jurisdiction over fisheries beyond 12
miles is not permissible by unilateral act". It
added that Iceland must furnish convincing proof
before such long-established rights could be set
aside (para. 229) FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 In this sense, cf. Katz, "Issues Arising in the
Icelandic Fisheries Case", Internationa! and
Comparative Law Quarterly, XXII-I (January
1973), p. 95.
------------------------------------------------------------
---------------------------------------------------------
The Memorial on the merits of the Federal
Republic of Germany argued that:
"It is Iceland, not the Federal Republic of
Germany, which is challenging the established
law, and it is for this reason that the Government
of the Federal Republic maintains that the burden
of proof that international law now recognizes the
right of a coastal State to extend its jurisdiction
beyond the 12-mile limit, rests upon Iceland."
(Part IV, para. 60; see also para. 66.)
In my opinion, this line of argument rests on
incorrect premises.
It is begging the question to say that the law as it
existed, the "established law", prohibited States
from extending their fisheries jurisdiction beyond
12 miles. All that one can say is that around 1961
there was a trend in favour of the 12-mile rule.
But the question still remains for con-sideration
whether or not this rule fulfilled the conditions
necessary for it to be regarded as a rule of
customary law.
It is not permissible to refer to rights as being
definitively and firmly vested rights in 1961; the
Exchange of Notes of 1961 contained an express
reservation whereby the Government of Iceland
proclaimed its intention to work for the extension
of its fisheries jurisdiction beyond 12 miles, such
reservation being accepted by the other party. The
said rights were therefore conditional vested
rights.
The question raised by the Applicant regarding
the burden of proof seems to me to be an unreal
question, calling for a different reply depending
on who puts it. The Applicant believes that
Iceland has claimed [p 79] the right to extend its
fisheries jurisdiction beyond 12 miles and should
provide evidence of the law under which it is
entitled to extend its jurisdiction beyond 12 miles
and up to 50 miles. From Iceland's point of view,
it is the United Kingdom which has claimed the
right to over-rule Iceland's resolution, as being
contrary to international law; it is therefore for
the United Kingdom to provide evidence of the
law limiting Iceland's sovereignty.
The question is the same, but is put from different
standpoints. The proof to be sought is that of the
substantive law to be applied in this case, a law
which is the same for both parties although
considered from two different points of view
FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 I think that this is confirmed by the
inconclusive discussions in the United Kingdom
v. Norway Fisheries case and by the considered
views on the matter of Lauterpacht, The
Development of International Law by the
International Court (London, 1958, pp. 363, 365).
------------------------------------------------------------
---------------------------------------------------------
The question should also be asked whether
customary international law has to be proved.
This question has arisen in the municipal law of
States where customs are considered as giving
rise to a quaestio facti, but the customs referred to
are those peculiar to regions, places or groups of
persons (businessmen, farmers, etc.). The
question arises in international law in a wholly
different way.
Page 49 of 112
A distinction should be observed between two
categories of customs. Traditionally jurists and
canonists have distinguished in ordinary law
between notorious customs well known to all and
particular customs; the latter, being exceptions,
had to be proved. This is also the case in English
law, under which there are two kinds of customs:
"general customs" which apply throughout the
Kingdom and "particular customs" applicable to
the inhabitants of certain regions. The particular
customs had to be proved, while the general
customs did not,—they were the "common law"
FN2.
------------------------------------------------------------
---------------------------------------------------------
FN2 Blackstone, Commentaries on the Laws of
England, Introduction, para. 3, 4th ed., Oxford,
1770, pp. 67, 75.
------------------------------------------------------------
---------------------------------------------------------
International customary law does not need to be
proved; it is of a general nature and is based on a
general conviction of its validity (opinio iuris).
The Court must apply it ex officio; it is its duty to
know it as quaestio iuris: iura novit curia FN3.
Only regional customs or practices, as well as
special customs, have to be proved FN4. [p 80]
------------------------------------------------------------
---------------------------------------------------------
FN3 In the Lotus case the Court raised the
question whether Turkey had acted in a manner
contrary to the: principles of international law
(P.C.I.J., Series A, No. 10 (1928), p. 32); in the
Fisheries case between the United Kingdom and
Norway, the Court considered the question
whether Norway's actions were contrary to
international law (I.C.J. Reports 1951, p. 132).
The question of the law to be applied was
therefore not considered in the terms of the view
of the Applicant in these cases, and there is no
reason to adopt a different course in the case now
before the Court.
FN4 I.C.J. Reports 1950, p. 276.
------------------------------------------------------------
---------------------------------------------------------
III. The Development of the Law of the Sea
1. The Court has said that the delimitation of sea
areas depends upon international law (I.C.J.
Reports 1951, p. 132). What are the rules of
international law to be applied to the delimitation
made by Iceland?
The existence of such rules has been denied by
the Icelandic Prime Minister in a speech, in
which he said:
"I cannot see that our proposed extension of
fisheries jurisdiction is contrary to any accepted
international law. It is a fact that there are no
generally accepted rules in international law on
the territorial limit." (Iceland and the Law of the
Sea, 1972, p. 31, quoted in the Memorial on the
merits of the Federal Republic of Germany, Part
IV, p. 96, para. 58.)
The terms used are of a polemical nature; they
come from one of the Parties to the dispute. But it
has also been possible to make the following
objective comment:
"... in plain words, the really grave issue is not
what breadth is presently accepted, but whether
the issue is governed by international law at all
FN1".
------------------------------------------------------------
------------------------------------------------
FN1 Brownlie, Principles of International Law,
2nd ed., Oxford, 1973, p. 196.
------------------------------------------------------------
------------------------------------------------
In my opinion, the changes, the increasingly rapid
development of technical conditions for the
exploitation of the resources of the sea have
resulted in a visible lagging behind of the old
rules; there is a crisis in the law of the sea, but
that should not stand in the way of the search for
a just legal solution of this case. I think it would
be useful to examine this development before
considering the law to be applied. I do not
propose to repeat here the well-known history of
the law of the sea, but only to restate what may be
useful to arrive at what I consider the necessary
clarification of some points in order to justify my
opinion on the law to be applied.
2. The opposition between the theses of mare
liberum and mare clausum is of a purely political
nature; it reflects the need to counter, with
Page 50 of 112
arguments of every kind, the claims to hegemony
of the maritime powers; it is the struggle for the
domain or empire of the sea.
"The question ... has been a subject for debate in
our day by the most distinguished minds. In
connexion with this question it has been easy to
observe that many of the disputants hold their
zeal for their own country before their eyes rather
than the truth FN2."
------------------------------------------------------------
------------------------------------------------
FN2 Pufendorf, De jure naturae et gentium,
translated from the Latin by C. H. and W. A.
Oldfather, Carnegie Institute, 1934, IV, 5, 5.
------------------------------------------------------------
------------------------------------------------
On the other hand, the delimitation of sea areas is
considered from a legal point of view when it
concerns the question of mare adjacens. The [p
81] glossator, and then the commentary of Baldo
on D, 1, 8, 2, had already generalized among
jurists the distinction between proprietas, usus,
jurisdictio out protectio.
The high seas, res communis omnium, is not
something that lends itself to ownership; its use is
common to everybody, and this applies also to
fishing. The sea unquam fuit a communione
hominum separatum, and unlike land and rivers,
there is no reason to divide it up; fish stocks in
the sea are inexhaustible and it would be
iniquitous to divide up ownership in them or the
right to fish for them (iniqua nullo tempore
praescribuntur) FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 Grotius, Mare liberum sive de iure, quod
Batavis competit ad Indicana commercia,
dissertatio, Ed. de H. Cocceius, Lausannae, 1752,
IV, p. 469.
------------------------------------------------------------
--------------------------------------------------------
The mare adjacens is subject to the jurisdictio et
protectio of the ruler of the territory. Over that
area the potestas of the master of the coast is
recognized without difficulty 2. Its foundation is
the fact that the adjacent sea is necessary to the
defence of the territory itself ; the coastal zone
has the same value as a moat3 or a rampart 4.
------------------------------------------------------------
---------------------------------------------------------
FN2 Grotius recognized that the imperium in
maris portionem could exist by reason of the
territory, quatenus ex terra cogi possunt, qui in
proxima maris parte versantur, nec minus quam si
in ipsa terra reperirentur. De iure Belli ac Pacis,
II, 3. 13, 2, ed. Amstelaedami, 1735, 1, p. 238.
FN3 Unde dominium maris proximi non ultra
concedimus, quam e terra illi imperari potest, et
tamen eo usque; nulla si quidem sit ratio, cur
mare, quod in alicujus imperio est et potestate,
minus ejusdem esse dicamus, quam fossam in
ejus territorio, Bynkershoek, De dominio maris
dissertatio, chap. II, Opera omnia, Ed. Coloniae
Allobrogum, 1761, II, p. 103.
FN4 Every country ". . . is deemed to be the
master of the sea which washes its coast as far as
it serves it as a rampart". Pufendorf, loc. cit., IV,
5, para. 8. II, p. 276.
------------------------------------------------------------
---------------------------------------------------------
Once jurisdictio over the adjacent sea has been
recognized, there is no difficulty in extending it
to fisheries, with the possibility of excluding
foreign vessels from that area, or of demanding
tribute for permission to fish there 5. The width
of the area of jurisdiction or imperium is justified
by the defence needs of the territory. It was fixed
according to the range of cannon 6, of the naked
eye, of binoculars, or else in miles. The number
of miles varied according to countries and
writers, from the 60 miles attributed to Baldo
down to three or four miles. The thinking of the
18th century has been summed up as follows:
------------------------------------------------------------
---------------------------------------------------------
FN5 On this question, see Cocceius in his
commentary to Grotius' De iure Belli ac Pacis,
ed. Lausannae, 1751, II , p. 143. On the "Sardine
War", see Johnston, The International Law of
Fisheries, 1965, p. 169.
FN6 Potestatem terrae finiri, ubi finitur armorum
vis, Bynkershoek, loc. rit., p. 101.
------------------------------------------------------------
---------------------------------------------------------
"It is not easy to determine just what extent of its
marginal waters a nation may bring within its
Page 51 of 112
jurisdiction. Bodin (De la Republique, Liv. I,
chap. X) claims that, following the common rule
of all maritime nations FN7, the sovereignty of
the Prince extends as far as 30 leagues from the
shore. But this precise determination could only
be based upon a general consent of nations,
which it would be [p 82] difficult to prove. Each
State may regulate as it thinks best the use of
those waters as far as the affairs of its citizens,
either with one another or with the Sovereign, are
concerned; but between nation and nation the
most reasonable rule that can be laid down is that
in general the sovereignty of a State over its
marginal waters extends as far as is necessary for
its safety and as far as it can be effectively
maintained; because on the one hand a nation
may appropriate only so much of common
property, like the sea, as it has need for some
lawful end . . .FN1 "
------------------------------------------------------------
------------------------------------------------
FN7 Barbeyrac comments that Bodin (1, ch. 80,
ult.) agreed with Baldo that in the Law
of Nations the jurisdiction of a prince extends to a
distance of 60 miles from the shores
of his territory, Notes to Pufendorf, loc. cit., p.
276, Note 7.
FN1 Vattel, The Law of Nations, I, ch. 23, para.
289, trans. C. G. Fenwick, Carnegie Institute,
Classics of International Law, p. 108.
------------------------------------------------------------
------------------------------------------------
3. This concept, which could be called the
classical concept, and which predominated until
the middle of this century, is no more than the
development of ancient principles. Sovereignty
over land is considered to extend to the sea
dominated by that land; this marine belt is
equivalent to a territorial sea. The imperium over
the adjacent sea gives rights to and imposes
obligations on a State; these are of great variety
(neutrality, prize, contraband, customs,
lighthouses, etc.) and they include in particular
exclusive fishing rights.
In practice the difficulty to be overcome has been
to reach an agreement fixing the maximum
distance in miles beyond which States are no
longer allowed to extend unilaterally their
fisheries jurisdiction. Has any such rule, ranking
as an international custom, crystallized?

From the 18th century up to the Second World
War the question of the limits of fishing zones
did not give rise to serious problems. It was
possible to say that the law of the sea was a
model of stability in the international community.
The draft regulations concerning the territorial
sea in time of peace, prepared by the Institute of
International Law at its Stockholm session in
1928, well reflected the general opinion: "The
territorial sea extends for three sea miles. An
international custom may justify recognition of a
greater or lesser breadth than three miles FN2."
------------------------------------------------------------
---------------------------------------------------------
FN2 Annuaire de l'Institut de Droit international,
1928, p. 755.
------------------------------------------------------------
---------------------------------------------------------
4. The Declaration of Panama of 3 October 1939
has been regarded as the first symptom of a
withdrawal from the so-called classic conception
of the law of the sea. Twenty-nine nations, under
the aegis of the United States, established a
neutral zone beyond the territorial sea, extending
in some places as far as 300 miles.
The origin of the crisis in the law of the sea with
regard to fisheries is to be found in the
proclamations by President Truman (28
September 1945). The old principle of the
division of the sea into two zones, the territorial
sea and the high seas or free seas, which had up
till then been regarded as dogma, was called in
question or abandoned. A new zone, that of the
continental shelf, was now recognized. In that
zone, the coastal [p 83] State has rights of
exploitation of the natural resources of the sea-
bed and subsoil (the proclamations of President
Truman only contemplated the mineral resources
of the shelf). There was also to be another zone
beyond the territorial sea, that of the superjacent
epi-continental waters, considered as sources of
biological wealth; this was a zone over which the
right to establish reserved areas for the protection
and conservation of fisheries was asserted FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 Spanish and South American precedents are
quoted in Rojahn, Die Anspruche der
lateinamerikanischen Staaten auf
Fischereivorrechte jenseits der
Page 52 of 112
Zwolfmeilengrenze, Hamburg, 1972, pp. 17-19;
but they do not seem to have had any influence.
------------------------------------------------------------
---------------------------------------------------------
The ideas enunciated by President Truman in his
proclamations had consequences unforeseen by
their author. Their success is not to be explained
solely by the political weight of the United
States; it was justified by the changes which had
occurred in the techniques of exploitation of the
sea-bed and fisheries. The theoretical basis of
freedom of fishing in the high seas (the zone
outside the territorial sea), argued by Grotius and
followed by general opinion, had become
unsound. The inexhaustibility of fisheries proved
to be an illusion. The new methods of fishing
made it necessary to take steps for the
conservation of the living resources of the high
seas.
Thus new concepts entered international practice,
marking "a reversal of the traditional ideas on the
liberty of the high seas" and principles were
stated of "a new theory which was soon to throw
international law into confusion, by provoking
ever bolder initiatives FN2". The Truman
Proclamations were subject to carefully drafted
limits and reservations, taking account of the
interests of the States engaged in fishing in the
high seas, but they opened new prospects to
learned speculation, and afforded States plausible
grounds for enlarging their zones of fishery
jurisdiction.
------------------------------------------------------------
---------------------------------------------------------
FN2 Ferron, Le droit international de la mer,
Paris 1960, Vol. II, p. 141.
------------------------------------------------------------
---------------------------------------------------------
The special nature of the continental shelf once
accepted, it should be observed that it is neither
easy nor natural to separate the legal status of the
various elements composing it, since they are
closely linked together. It would seem artificial to
make a distinction between mineral resources and
living resources. De Buen proposed as early as
1916 (at the Madrid Conference) the
incorporation of the continental platform in the
territorial sea, as being the area most propitious to
the development of edible species of fish, and the
most favourable fishing ground.
Thus the difficulty of defining the boundaries and
the structure of the continental platform—and the
difficulty resulting from the existence of coasts
practically without a continental shelf—was to
lead to the substitution, for geological,
bathymetrical and geographical criteria, of the
simplified concept of an epi-continental zone
established by each State beyond its territorial
sea, and varying in the extent.
5. Another trend favouring the enlargement of the
fishery zone flowed [p 84] from the fact that the
idea of protection and conservation of fisheries
grew into the idea of jurisdiction in that
connection over an area extending beyond the
territorial sea. Once the jurisdiction of the coastal
State to safeguard the conservation of fish stocks
was recognized, the special interests of the
inhabitants of that country constituted a basis for
the establishment of preferential or exclusive
rights over that zone in favour of that State.
For one or other of these reasons, the fact is that
following the Truman Proclamations, there was a
sort of chain reaction consisting of a series of
declarations in favour of extension of the
fisheries jurisdiction of States.
On 29 October 1945, Mexico declared that it
claimed the whole area of the continental
platform adjacent to its coasts and all the natural
resources, known or unknown, to be found
therein. On 11 October 1946, Argentina declared
that the epi-continental sea and the Argentinian
continental shelf were subject to national
sovereignty. On 1 May 1947, Nicaragua asserted
sovereignty over the contiguous area of the high
seas or the waters of the continental shelf, up to
200 miles from the coast FN1. It should be
observed that it is in this historical perspective,
and against the background of the trend flowing
from the Truman Proclamations that the Icelandic
Law of 1948 concerning the scientific
conservation of the continental shelf fisheries
should be placed and also interpreted.
------------------------------------------------------------
---------------------------------------------------------
FN1 On the legislative acts and declarations
made at the time by Panama, Peru, Costa Rica,
Nicaragua, Honduras, El Salvador, Brazil,
Page 53 of 112
Ecuador and Venezuela, see Alvarez, Los nuevos
principios del derecho del mar, Montevideo 1961,
pp. 21 ff. and Ferron, op. cir., pp. 157 ff. On the
doctrine of Latin American authors prior to 1961
(Bustamante y Rivero, Ulloa, Garcia Montufar,
Garcia Sayan) see Rojahn, Die Anspruche, p.
144.
The attitude of the Latin American States has
been described as "reactions to what these nations
felt to be a failure of international mechanisms to
respond to fisheries crises": Jacobson, "Bridging
the Gap to International Fisheries Agreement: a
guide for unilateral action", The San Diego Law
Review, Vol. 9, No. 3, May 1972, p. 465.
------------------------------------------------------------
---------------------------------------------------------
The current legal revolution is in the course of
being established thanks to the Santiago
Declaration of 18 August 1952, and the principles
adopted at the 3rd Meeting of the Inter-American
Conference of Legal Advisers held in Mexico in
1956, as well as at other conferences and
meetings of Latin American lawyers.
The claiming of exclusive jurisdiction over
fisheries or of preferential rights over wider and
wider zones—6 sea miles, 12 sea miles, and even
200 sea miles—and the claim by coastal States to
settle unilaterally their fishery jurisdiction, have
naturally led to alarm among the countries
interested in high sea fishing.
6. In order to put an end to such dangerous
uncertainties, the International Law Commission
in 1949 included the law of the sea among the
subjects to be studied with a view to codification.
In the third draft prepared by the Commission for
the United Nations Conference on the Law of the
Sea, the 12-mile rule was laid down as a
compromise formula. The Commission
recognized that international practice was not
uniform [p 85] with regard to the delimitation,
and added: "The Commission considers that
international law does not permit an extension of
the territorial sea beyond 12 miles FN1."
------------------------------------------------------------
---------------------------------------------------------
FN1 Yearbook of the International Law
Commission, 1956, Vol. II , p. 265.
------------------------------------------------------------
---------------------------------------------------------
The 1958 Conference showed the difficulty of
reaching any consensus. The International Law
Commission draft, which would have set a
maximum limit to the extension of the territorial
sea, was blocked. The 12-mile rule was
acceptable neither to the countries who wished to
keep the 3-mile rule nor to those who wished the
possibility of a greater extension to be
recognized.
Each of the opposing tendencies at the
Conference could boast of certain resolutions in
its favour. The conservative trend succeeded in
having freedom of fishing included in the
Convention on the High Seas as one of the four
freedoms of the high seas; the high seas were
there defined as meaning all parts of the sea that
are not included in the territorial sea. The
Convention on the Continental Shelf lays down
that the rights of the coastal State over the
continental shelf do not affect the legal status of
the superjacent waters as high seas; in the
definition of natural resources, over which the
coastal State has sovereign rights, were included,
in addition to mineral resources, living organisms
belonging to sedentary species, and only those
organisms.
The innovating trend could also boast of a certain
measure of success. The Convention on Fishing
and the Conservation of the Living Resources of
the High Seas recognized that the coastal State
has a special interest in the maintenance of the
productivity of the living resources in any area of
the high seas adjacent to its territorial sea, which
in certain circumstances entitles it to adopt
unilateral measures of conservation. The
Conference Resolution on Special Situations
relating to Coastal Fisheries recommended taking
account of the "preferential requirements of the
coastal State resulting from its [economic]
dependence upon the fishery" where it becomes
necessary "to limit the total catch of the stock or
stocks of fish in an area of the high seas adjacent
to the territorial sea".
The Conference left unsolved the two most
important questions, namely that of the maximum
extension of the territorial sea, and that of the
extension of the adjacent zone subject to the
fisheries jurisdiction of the coastal State.
Page 54 of 112
It was in the climate of uncertainty and conflict of
trends experienced during the 1958 Conference
that Iceland issued the decree of 30 June 1958
extending its fishing zone to 12 miles.
The Second Conference on the Law of the Sea
(Geneva 1960) was called to settle the question of
the breadth of the territorial sea and of the limits
of fisheries zones; it was however a failure. But
the 12-mile rule made marked progress.
It is true that the proposal to limit the breadth of
the territorial sea to a maximum of 12 miles was
rejected in committee (by 39 votes to 36, [p 86]
with 13 abstentions), but the compromise
proposal made by the United States and Canada,
contemplating a zone of territorial sea of 6 miles
and a zone of exclusive fisheries jurisdiction of 6
miles, voted on at a plenary session, failed to be
adopted by one vote, one additional vote being
necessary for the text to receive a two-thirds
majority (54 votes in favour, 28 against, and 5
abstentions) FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 The compromise nature of the vote which
occurred should be observed; it should be
examined in relation with the proposal by Brazil,
Cuba and Uruguay on recognition of preferential
rights.
------------------------------------------------------------
---------------------------------------------------------
7. It should be observed that there are different
understandings of the 12-mile rule both among
States and among writers. By some it has been
regarded as a brake on the pressure of new States
anxious to extend still further their fisheries
jurisdiction; for them it is the maximum
permitted extension. By other States it has been
understood as a first stage towards achieving
recognition of the wider extension which they
have in view; for them it is the minimum
extension acceptable.
It was in this atmosphere of conflicting trends,
which came into the open at the Conference of
1960, that the 1961 agreement must be examined.
The trend of ideas opposed to the 3-mile rule had
to be accepted; but the United Kingdom did not
recognize the rule permitting the extension of
fisheries jurisdiction up to the 12-mile limit as a
general rule; it accepted it, but only as a
negotiated rule, and in consideration of the
special interests of Iceland. Iceland for its part did
not recognize the 12-mile rule as the maximum
limit of its fisheries jurisdiction zone; it sought an
extension to 12 miles because that was what it
was possible for it to obtain at the time, but it
regarded it as a provisional extension and
reserved the power of making a further extension,
and applied itself to implementing the Althing
Resolution of 5 May 1959.
8. The failure of the 1958 and 1960 Conferences
prevented any rule as to the maximum limit for
the fisheries zone from crystallizing. The
development of the law of the sea in this field
took place in conditions of anarchy, the dominant
note being a progressive and accelerated
extension of the claims of coastal States FN1.
------------------------------------------------------------
---------------------------------------------------------
FN2 This "creeping jurisdiction" was observable
between 1967 and 1971: Kahden, Die
Inanspruchnahme von Meereszonen und
Meeresbodenzonen durch Kustenstaalen, 2nd ed.
1971, preface.
------------------------------------------------------------
---------------------------------------------------------
In the confusion which reigns in the matter,
several tendencies can be distinguished which, in
my opinion, can be summarized as follows.
In the first place, it should be observed that the
possibility of extending the exclusive fisheries
zone beyond the territorial sea is practically
generally admitted. The resistance set up by some
States to the 12-mile rule is continually
decreasing FN3. Writers in Europe and the
United States also recognize it as the maximum
limit to the extension of the jurisdiction of [p 87]
coastal States. This tendency in favour of the 12-
mile rule has made it possible to say that the 12-
mile limit appears to be "the magic number" for
the great majority of States FN1.
------------------------------------------------------------
---------------------------------------------------------
FN3 Note however the protest by the United
States against the declaration by Canada
extending its coastal zone to 12 miles (May
1970). Japan stated that it did not recognize the
Page 55 of 112
12-mile fishing zone, but in its agreement of 22
June 1965 with Korea is to be found reciprocal
recognition of the 12-mile zone.
FN1 Bouchez, "Some Basic Problems of Coastal
State Jurisdiction and the Future Conference on
the Law of the Sea", Annals of International
Studies, Vol. IV, 1973, p. 155.
------------------------------------------------------------
---------------------------------------------------------
In the other direction, it is apparent that the trend
originating in Latin America towards extending
the zone of fisheries jurisdiction up to the 200-
mile limit appears to be becoming more firmly
established; in this connection one might quote
the Declaration of Montevideo of 8 May 1970,
and the declaration of Santo Domingo of 7 June
1972. This trend is spreading to other continents.
In the report of the Asian-African Legal
Consultative Committee on its 12th Session in
Colombo (18-27 January 1971), it is said that
most of the delegations were ready to accept a
12-mile limit for the territorial sea, but coupled
with an affirmation of the rights of the coastal
State to claim exclusive jurisdiction over an
adjacent zone for economic purposes. See also
the recommendations drafted at Yaounde (20-30
June 1972) FN2.
------------------------------------------------------------
---------------------------------------------------------
FN2 It has been announced in the press that the
77 developing countries meeting in Nairobi
(Kenya) decided to defend the right to a 200 sea-
mile limit for coastal States at the United Nations
Conference in Caracas.
------------------------------------------------------------
---------------------------------------------------------
The seed sown by the Truman Proclamations is
still bearing fruit, and it is from them that
innovating ideas continue to spring concerning
the law of the sea FN3.
------------------------------------------------------------
---------------------------------------------------------
FN3 The tendency to extend fisheries zones in the
interest of coastal populations may also be
observed in countries of the Western group.
The Senate and House of Representatives of
Massachusetts, assembled in General Court,
authorized the Director of the Division of Marine
Fisheries, with the approval of the Governor, to
extend jurisdiction up to 200 miles for the
purposes of conservation and protection of
maritime resources (Massachusetts, An Act
Relative to the Territorial Waters of the
Commonwealth). In 1972, Congress of the State
of Maine requested the Secretary of State and the
delegation to the United States Congress to
extend jurisdiction over fisheries to the whole
extent of the continental shelf (J. H. Samet and R.
L. Fuerst, The Latin-American Approach to the
Law of the Sea, University of North Carolina,
Sea Grant Publication, March 1973, App. A and
B, pp. 150-151). In the United States, there are
conflicts between the states and the Federal
Government. New England is in favour of an
extension of jurisdiction to protect coastal
fisheries. California favours limiting jurisdiction,
taking account of cod fishing in the high seas.
Military interests operate in favour of the 12-mile
limit (Hjertonsson, The New Law of the Sea,
"Influence of the Latin American States on
Recent Developments of the Law of the Sea",
Leiden-Stockholm, 1973, p. 96).
In Canada, the Governor is authorized to
prescribe by Order in Council fishing zones in
areas of the sea adjacent to the coast of Canada
(Law of 16 June 1970 amending the Law on the
Territorial Sea and Fishery Zones, new paras. 4
and 5A).
------------------------------------------------------------
---------------------------------------------------------
The recognition of a third maritime zone, inserted
between the territorial sea and the high seas, is
the basis of a new concept, that of the patrimonial
sea or economic zone. According to the
Declaration of Santo Domingo, the coastal State
has sovereign rights over the renewable and non-
renewable natural resources which are found in
the waters, in the sea-bed and in the subsoil of an
area adjacent to the territorial sea called [p 88]
the patrimonial sea; the area of the territorial sea
and the patrimonial sea, taking into account
geographic circumstances, should not exceed a
maximum of 200 sea-miles.
In the Truman Proclamation, and at the 1958
Conference, reference was made to the natural
resources of the continental shelf over which it
was recognized that the coastal State had an
exclusive right, in order to define the scope
Page 56 of 112
thereof, with a view to respecting the freedom of
fishing in the high seas. At the present time, the
reference to rights over natural resources is taking
a new turn. A point has been reached at which the
right of States is reaffirmed to permanent
sovereignty over all the natural resources of the
sea-bed and subsoil within their national
jurisdiction, and in the superjacent waters. This is
also what was said in General Assembly
resolution 3016 (XXVII), in a recommendation
adopted by the Committee on Natural Resources
of the Economic and Social Council (Session of
February 1973) and in a resolution of the
Economic and Social Council (April-May 1973)
FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 The travaux preparatoires of the Caracas
Conference should be taken into account, though
cum grano salis, as of assistance in ascertaining
the present tendencies amongst States; in addition
they reveal the taking up of positions with a view
to the discussions during the Conference.
------------------------------------------------------------
---------------------------------------------------------
It seems to me that with its Resolution of 1972,
Iceland followed the same tactics as those which
had previously brought it success. It faced the
defendant State with a fait accompli, and did so in
the conviction that the development of the law of
the sea is moving towards a justification of its
decision. Iceland may cherish the hope that the
trends in favour of extension of fisheries zones
will obtain the support of the greater number of
States at the Caracas conference FN2.
------------------------------------------------------------
---------------------------------------------------------
FN2 The Government of' the United Kingdom
has explained, in its reply to a question by a
Member of the Court, that in para. 297 of its
Memorial it intended to make the point "that the
forthcoming Third United Nations Conference on
the Law of the Sea may reveal whether a
consensus can be reached which will bring about
a development in the law so as to permit the kind
of claim which Iceland is now making".
------------------------------------------------------------
---------------------------------------------------------
IV. The Law to Be Applied

1. The complaint brought before the Court by the
Applicant against Iceland is that of having
committed a breach of international law by
unilaterally extending its fisheries zone in 1972.
The Exchange of Notes of 1961 contains the
provision by which Iceland reserved the
possibility of extending its fisheries zone in
implementation of the Althing Resolution of
1959. But the Applicant contends that the
Resolution of 1972 conflicts with the law
established in 1961, and that Iceland cannot act in
this way without proving that the 12-mile rule is
no longer in force (United Kingdom Memorial,
para. 229; Federal Republic Memorial, Part IV,
para. 60). Reference is also made to the disregard
by Iceland of "such long-established legal rights"
of the Applicant (United Kingdom Memorial,
para. 229). [p 89]
In order to express my view in such a way as to
avoid the difficulties resulting from the lack of
clarity of the Applicant's argument, it seems to
me to be as well to deal with the various issues
one by one.
The established rights relied on are said to be
based on "the existing law and established legal
rights" (ibid). The Respondent's rights have a
contractual basis, namely the exchange of Notes.
The Respondent has acquired rights, but rights
which are subject to a pre-condition unspecified
in point of time (dies incertus an et incertus
quando). The right of the Applicant is an
established right subject to a limitation, i.e., up to
the date when Iceland exercises the power it has
reserved of extending its fisheries jurisdiction. By
exercising that power, Iceland does not infringe
any established right of the Applicant to respect
by Iceland of the 12-mile limit. The Applicant is
entitled to appeal to the Court, but only on the
grounds that Iceland has not honoured its
commitment to submit to the Court the dispute
concerning the extension.
Nor is it justified to refer to an established right
under international law in force in 1961. The
situation existing in 1961 is not what is before the
Court. The act complained of by the Applicant is
the 1972 Althing Resolution, that is to say a
different situation, that of an extension which,
although foreseen in 1961, was not effected until
1972. This is a new fact, the legality of which
Page 57 of 112
must be considered solely at the time when it
occurs (tempus regit factum ). It is precisely that
new fact with regard to which it was provided
that in case of dispute between the parties the
matter would be brought before the Court. The
Applicant has no established right to the
extension being perpetually limited to 12 miles,
on the basis of international law in force in 1961
FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 This appears to have been conceded by the
Applicant when in its oral statement it expressed
the view that the 12-mile rule was hot yet in force
in 1961.
------------------------------------------------------------
---------------------------------------------------------
2. The key argument of the Applicant is that the
12-mile rule is the international law in force on
the subject, because it has become a rule of
customary law, and also because it has not been
abrogated by a contrary custom. We must
therefore consider whether the 12-mile rule
amounts to a rule of customary international law.
According to the communis opinio, a customary
international right comes into existence when a
practice crystallizes which has the following
distinguishing marks:
(a) General or universal acceptance. There should
be no doubt as to the attitude of States. The rule
in question must be generally known and
accepted expressly or tacitly. What has led to the
view that international custom is binding is that it
expresses a consensus tacitus generalis, if not as a
sort of tacit agreement, at least as the expression
of a general conviction. For an international
custom to come into existence, the fact that a rule
may be adopted by several States in their
municipal legislation, in treaties and conventions,
or may be applied in arbitral decisions is not
sufficient, if other States adopt a [p 90] different
rule, and it will not be opposable to a State which
still opposes its application (I.C.J. Reports 1951,
p. 131). The existence of a majority trend, and
even its acceptance in an international
convention, does not mean that the convention
has caused the rule to be crystallized or canonized
as a rule of customary law (I.C.J. Reports 1969,
p. 41).
(b) Uniform practice. For a new rule of
international law to be formed, the practice of
States, including those whose interests are
specially affected, must have been substantially
or practically uniform (I.C.J. Reports 1951, p. 25;
I.C.J. Reports 1951, pp. 116 and 131; I.C.J.
Reports 1969, p. 42).
(c) A considerable period of time. It is time which
ripens a practice and transforms it into a custom.
In the texts, such terms are used as praescripta
consuetudo, vetustas, per plurimos annos
observata, diuturnis moribus introductum, etc.
The Court has recognized the possibility of some
relaxation of the requirement of a considerable
length of time, but only on condition that:
"State practice, including that of States whose
interests are specially affected, should have been
both extensive and virtually uniform in the sense
of the provision invoked;—and should moreover
have occurred in such a way as to show a general
recognition that a rule of law or legal obligation
is involved." (I.C.J. Reports 1969, p. 43; see also
p. 45.)
(d) Opinio Juris
"Not only must the acts concerned amount to a
settled practice, but they must also be such, or
carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by
the existence of a rule of law requiring it . . .
States . . . must therefore feel that they are
conforming to what amounts to a legal
obligation." (I.C.J. Reports 1969, p. 44.)
Taking account of these conditions, we must
consider whether the 12-mile rule is in the nature
of an international custom. In order to give an
unambiguous reply to this question it is necessary
when putting it to make a distinction between the
two meanings which may be given to the
expression "12-mile rule".
(i) The 12-mile rule means that States can no
longer object to another State extending its
fisheries jurisdiction zone to 12 miles.
(ii) The 12-mile rule means that States cannot
extend their fishing zone beyond 12 miles.
Her Majesty's Government seems to me to have
given a proper reply to a question put by Judge
Sir Humphrey Waldock, when it was stated on its
Page 58 of 112
behalf that: [p 91]
"It could not safely be said that the new rule had
emerged until Japan, a State whose interests were
certainly specially affected in the meaning of that
principle, decided that it could not effectively
challenge in law the legislation of New Zealand
and the United States. As from that moment, in
our submission, it was reasonable to maintain
that, notwithstanding continuing disagreement on
the breadth of the territorial sea, there was then
by that stage a new rule of law to the effect that a
coastal State was entitled to an exclusive fishery
limit of 12 miles." (CR 74/3, p. 40.)
This is quite correct, and it was possible to take
the view that the resistance of the countries which
continued to oppose extension of exclusive
fisheries jurisdiction to 12 miles was overcome at
that moment. For that reason, it is possible to say
that the 12-mile rule, with that meaning, has
become a customary rule.
But to concede the possibility that States might
claim an exclusive fisheries zone of 12 miles does
not lead as a logical or necessary consequence to
the conclusion that "the figure of 12 miles was
the correct limit in accordance with international
law for the purpose of defining the zone in which
the coastal State is entitled to exclusive fishery
rights" (ibid., p. 40). This statement is an answer
to a different question, which should be examined
separately.
The question is as follows: is there an existing
rule of customary law which forbids States to
extend their fisheries jurisdiction beyond 12
miles? Before replying in the affirmative to this,
it would be necessary to be satisfied that such a
rule meets the conditions required for the birth of
an international custom.
In Part III of the present opinion, which was
devoted to the development of the law of the sea
with regard to fisheries, it was made clear that a
continually increasing number of countries do not
agree to limit their fisheries jurisdiction zone to
12 miles FN1. Before 1961, from the time of the
Truman Proclamations onwards, there were
manifestations contrary to that rule, in legislation,
at Inter-American conferences, and in the
discussions of the International Law Commission
FN2. Since 1961, and in particular in 1972, it is
difficult to regard the trend in favour of the 12-
mile rule as supported by a majority. The 12-mile
rule has at no time been accepted in a general or
universal way as fixing a maximum limit FN3.
------------------------------------------------------------
---------------------------------------------------------
FN1 The 12-mile rule may on the other hand be
regarded as applicable to the limit of the
territorial sea.
FN2 Quotations in Rojahn, Die Anspruche, p.
164.
FN3 On the present majority trend, see
Stevenson, "Who is to Control the Oceans: U.S.
Policy in the 1973 Law of the Sea Conference",
The International Lawyer, VI, No. 3, July 1972.
------------------------------------------------------------
---------------------------------------------------------
It should also be noted that before and after 1961,
during the period which may be regarded as that
of the coming into existence of the rule, Iceland,
which is certainly a State whose interests are
specially affected, made known its opposition to
the rule expressly and persistently FN4. [p 92]
According to the most authoritative writers, and
following the doctrine of the Court itself (I.C.J.
Reports 1950, p. 65; I.C.J. Reports 1951, p. 131;
I.C. J. Reports 1969, p. 42, para. 73) the express
will of a State during such a period prevents the
coming into existence of a custom. The majority
principle does not apply, even if a majority exists.
To apply it would be contrary to the principles of
sovereignty and equality of States.
------------------------------------------------------------
---------------------------------------------------------
FN4 Quotations in Rojalhn, "Die Fischereigrenze
Islands vom 1 September 1972 im Lichte
rnaritimer Abgrenzungsprinzipien des
Internationalen Gerichtshofes", Archiv des
Volkerrechts, Vol. XVI, No. I (1973), pp. 39, 41,
43, 47; see also Nelson, "The Patrimonial Sea",
International and Comparative Law Quarterly,
October 1973, p. 673, Note 29.
------------------------------------------------------------
---------------------------------------------------------
In the 1961 Exchange of Notes, Iceland denies by
implication that the 12-mile rule is a rule of
customary international law limiting the extent of
the fishery zone. This is the meaning which
should be attributed to the direct reference to the
Page 59 of 112
1959 Resolution and the indirect reference to the
1948 Law. A reservation was made in favour of a
zone extending to the boundary of the continental
shelf. I do not consider that this reservation
should be interpreted as being subject to there
being a change in international law. There is only
one limitation on the reservation made, namely
that in case of dispute as to the extension, the
question was to be brought before the Court. It
may be supposed that the Icelandic Government
might have intended, as a matter of political
prudence, to await the most favourable moment
from the point of view of international opinion in
order to carry out the announced extension, but
that is another matter.
3. Nor do I consider that the authority of the 1958
conventions can be invoked in favour of the 12-
mile rule. Article 24 of the Convention on the
Territorial Sea and the Contiguous Zone
mentions a limit of 12 miles for the contiguous
zone, but in four specific fields (customs, and
fiscal, immigration or sanitary regulations) and
does not envisage fisheries. Nor is this an
oversight: the question of fisheries was in
everyone's mind. This is a case in which it may
be well to apply the old adage inclusio unius
exclusio alterius.
Article 2 of the Convention on the High Seas has
also been cited as evidence that Iceland has
violated, by its 1972 Resolution, the principle of
freedom of fishing in the high seas enshrined in
Article 2 of the Convention on the High Seas
FN1*. It is true that in zones forming part of the
high seas "fishing . . . could only be shared and
not exclusive" (separate opinion of Sir Gerald
Fitzmaurice, I.C.J. Reports 1973, p. 69, para. 5).
But I am afraid that to do no more than apply this
criterion would be to beg the question, because it
would be to admit by implication that the extent
of the high seas was mathematically fixed by
international law. But this is far from being the
case. The extent of the territorial sea has not been
established. The practice of States shows that the
territorial sea has been extended, for example,
from 3 to 4 miles, or from 4 to 12 miles, on each
occasion at the expense of the high seas. Can it
not be extended [p 93] beyond 12 miles when
circumstances or special reasons justify it? It
should also be observed that since the 1960
Conference on the Law of the Sea there has been
a. trend, which cannot be overlooked, toward
recognition of a third zone, between the territorial
sea and the high seas, over which States can
claim a form of jurisdiction, without any
pretension to sovereignty FN1. Can this not be
extended beyond 12 miles? While it does not
seem necessary to reply to these questions, it is
difficult to see how the implementation of the
1959 Althing Resolution, which was envisaged in
the 1961 Exchange of Notes, can in 1972 be
contrary to international law vis-à-vis the United
Kingdom, if it is not conceded that between 1961
and 1972 the 12-mile rule entered customary law.
Has the 12-mile rule, having found the door
closed, crept in by the window?
------------------------------------------------------------
---------------------------------------------------------
FN1* If the Icelandic Resolution of 1972 is open
to criticism it is on the ground that it is contrary
to the Exchange of Notes, and has not been duly
justified.
FN1 This is recognized in the proposal to limit
territorial waters to 6 miles and the zone of
exclusive fishing rights to a further 6 miles.
------------------------------------------------------------
---------------------------------------------------------
It seems to me also that it is not possible to base
any useful argument whatever on the Convention
on the Continental Shelf, or on the comments on
it by the Court to the effect that the coastal State
has "no jurisdiction over the superjacent waters"
of the continental shelf (I.C.J. Reports 1969, p.
37, para. 59). The significance of these is that a
State has no jurisdiction over the superjacent
waters by virtue of its rights over the continental
shelf, but this reservation concerns the regime of
the superjacent waters in so far as they appertain
to the high seas, and not the superjacent waters
when they are regarded as territorial waters,
contiguous zone, or fishing zone subject to the
jurisdiction of a State.
There are no well-founded arguments in favour of
the binding character of the 12-mile rule; those
built upon ad hoc interpretations of articles in the
1958 conventions do not convince. The 1958
Conference failed in its attempt to fix a limit to
fisheries jurisdiction. How can one deduce from
the conventions what the parties to the
Conference refused to say?
4. Another question should be examined,
Page 60 of 112
although it has not been raised by the Applicant.
The extension effected by Iceland in 1972 was
disputed by the United Kingdom and, in violation
of the compromissory clause of the 1961
Exchange of Notes, Iceland has refused to appear
before the Court. It should be considered whether
the consequence of Iceland having acted in this
way is that the extension which it has decreed is
not opposable to the United Kingdom, and
whether the Court should confine itself to stating
as much in its Judgment.
I do not consider that this argument has a sound
legal basis either in the Parties' agreement, or in
the Statute of the Court, or in the law of treaties.
The 1961 Exchange of Notes recognized that
Iceland had the power to extend its fisheries
jurisdiction on the sole condition that this was
done in implementation of the 1959 Althing
Resolution. It was after the extension, and if there
should be a dispute between the Parties, that the
question could be brought before the Court. This
was not a right conferred on the [p 94] United
Kingdom; the question could be brought before
the Court at the request of either Party. Iceland
could have done so, for example, if the extension
it had decided to make was disregarded by the
Applicant, if, instead of bringing the dispute
before the Court, the Applicant had sent its fleet
to protect its fishing vessels. The Notes contain
no penal clause or clause providing any sanction
if one of the Parties failed to appear.
The Statute of the Court (Art. 53.), in harmony
with modern procedural law, does not treat a
party in default as guilty, and is far from
regarding failure to appear as a ficta confessio.
The Court, using its own means, and taking
account of the facts of which it is aware and of
the applicable law, must ascertain whether the
extension is valid or not and to what extent it may
be valid.
Finally, the Applicant does not raise the non-
fulfilment of Iceland's duty to submit the dispute
to the Court as a ground for abrogation of the
treaty, and for its being absolved from its
obligations toward Iceland; on the contrary, the
Applicant contends that the agreement is still in
force.
5. I cannot see that there is any other customary
rule fixing the extent of the fishery zone. The
200-mile rule cannot be regarded as an accepted
one, and as thus conferring on States the right to
extend their jurisdiction to that extent. Despite
the progress which it has made in recent years, it
is not marked either by the uniformity or the
general acceptance which it would require in
order to be regarded as a customary rule, even of
regional extent FN1
------------------------------------------------------------
---------------------------------------------------------
FN1 Garcia Amador observes that the differences
relate to the very nature of the claims, Latin-
America and the Law of the Sea, University of
Rhode Island, Occasional Paper No. 14, 1972, p.
1. On the protests of States and of writers, see
Rojahn, "Zur zukunftigen Rechtsordnung des
Festlandsockels und der Fischerei auf dem Hohen
Meer", Jahrbuch fur internationales Recht, Vol.
XV, 1971, p. 407.
------------------------------------------------------------
---------------------------------------------------------
Against the contentions of the Applicant, Judge
Padilla Nervo has argued that:
"The progressive development of international
law entails the recognition of the concept of the
patrimonial sea, which extends from the
territorial waters to a distance fixed by the coastal
State concerned, in exercise of its sovereign
rights, for the purpose of protecting the resources
on which its economic development and the
livelihood of its people depends." (Dissenting
opinion, I.C.J. Reports 1973, p. 41.)
The view of Judge Padilla Nervo must be rejected
for several reasons. The patrimonial sea is a
compromise concept, which is worthy of
consideration but which does not meet the
conditions required of a rule of law. The
countries represented at Santo Domingo did not
claim that their proposal concerning a zone of
patrimonial sea should be applicable to all Latin
American States, or that it was generally favoured
by them, but they regarded it as a contribution to
the working out of an eventual joint Latin
American formula FN2. [p 95]
------------------------------------------------------------
---------------------------------------------------------
FN2 Castaneda, "The Concept of Patrimonial Sea
in International Law", Indian Journal of
International Law, Vol. 12, No. 4, October 1972,
Page 61 of 112
p. 538.
------------------------------------------------------------
---------------------------------------------------------
Nor should it be overlooked that the task of
encouraging the progressive development of
international law, for which the initiative belongs
to the General Assembly (United Nations
Charter, Art. 13), was entrusted to the
International Law Commission (Statute of the
Commission, Art. 15). The Court is not a
legislative body (I.C.J. Reports 1966, p. 48); its
function is to decide in accordance with
international law such disputes as are submitted
to it (Statute, Art. 38).
Finally it should be observed that the question of
the sovereign rights of States as to the fixing of
zones of jurisdiction has been badly expressed.
The Court has made clear what is truly within the
national competence of each State:
"The delimitation of sea areas has always an
international aspect; it cannot be dependent
merely upon the will of the coastal State as
expressed in its municipal law. Although it is true
that the act of delimitation is necessarily a
unilateral act, because only the coastal State is
competent to undertake it, the validity of the
delimitation with regard to other States depends
upon international law." (I.C.J. Reports 1951, p.
132.)
6. Our examination of these questions up to this
point leads to the pessimistic conclusion that
there is in international law no binding and
uniform rule fixing the maximum extent of the
jurisdiction of States with regard to fisheries.
From this conclusion it has been deduced that
there is a legal vacuum, but in my opinion this
deduction is not based on conclusive reasons.
The Prime Minister of Iceland, adopting the same
line as is to be found in declarations by Latin
American States, and the writings of authors from
those countries, has stated in a speech before the
Icelandic Parliament:
"Since there are no generally agreed rules on the
width of the territorial limit in terms of
international law, it must be in the power of every
State to decide its territorial limit within a
reasonable distance." (Cited from a pamphlet
entitled Iceland and the Law of the Sea, issued by
the Government of Iceland in 1972, pp. 31-32;
quotation in Part IV, para. 58, of the Memorial of
the Federal Republic of Germany.) FN1
------------------------------------------------------------
------------------------------------------------
FN1 For quotations of Latin American writing in
the same sense, see Rojahn, Die Anspruche, p.
168. See also the statement by the Icelandic
delegate in the General Assembly on 17
December 1973 (quoted in CR 74/1, pp. 61-62).
------------------------------------------------------------
------------------------------------------------
From an opposite point of view, and by way of
reductio ad absurdum, it has been said that:
"...so soon as it is admitted that international law
governs the question of the breadth of the
territorial sea, it follows automatically that
international law must also prescribe a standard
maximum [p 96] breadth, universally valid and
obligatory in principle ... If this is not so, then
international law would not govern the question
of the extent of the territorial sea . . ."
(Fitzmaurice in XXXI BYIL, 1954, p. 386.)
It would of course be better for legal security if a
mathematical rule existed. But law also has
"safety valve" rules, which provide flexibility in
the legal rules, and permit of more just solutions
for individual cases to be found at the expense of
legal security (e.g., the concepts of good faith,
bonos mores, comitas gentium, misuse of right,
droits de voisinage). In another case which also
concerned the delimitation of zones of
jurisdiction with regard to fisheries, the Court
showed how it was necessary to take into account
considerations which: ". . . bring to light certain
criteria which, though not entirely precise, can
provide courts with an adequate basis for their
decisions, which can be adapted to the diverse
facts in question" and for this purpose, there was:
"... 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" (I.C.J. Reports 1951, p. 133) FN1.
------------------------------------------------------------
Page 62 of 112
------------------------------------------------
FN1 It has been said with regard to this judgment
that it contains implicit recognition "of the futility
of the quest for uniform rules to determine the
extent of exclusive fishery rights for wholly
different situations". The advice of the author of
this comment is that to resolve the questions
arising in this field, efforts should be made to
ensure "that the settlement be as rational,
equitable and expert as humanly possible".
Douglas Johnston, The International Law of
Fisheries, Yale University Press, 1965, p. 248.
The conclusion of regional agreements is also to
be recommended: see Vigne, Le role des interêts
economiques dans revolution du droit de la mer,
Geneva, 1971, p. 119.
------------------------------------------------------------
------------------------------------------------
The flexibility of a rule is not a reason for
denying its existence. Failing a rule for the
mathematical delimitation of the zones, "there are
still rules and principles of law to be applied"
(I.C.J. Reports 1969, p. 46, para. 83).
The defeatist idea that the determination of
fisheries jurisdiction zones is a question of
municipal law, within the national competence of
each State, must be rejected. It is contrary to the
principle of the freedom of the high seas, the
principle which underlies the statement by the
Court quoted above, to the effect that the validity
erga omnes of the delimitation of sea areas is a
matter of international law (I.C.J. Reports 1951,
p. 132).
To leave to the unfettered will of each State the
uncontrolled power to lay down the limits of
exclusive fishing zones is contrary to the spirit of
international law. The principle of equal rights of
peoples (United Nations Charter, Art. 1, para. 2)
does not permit of the unilateral creation of
monopolies over zones of the high seas, at the
expense of other States. [p 97]
It is generally conceded, even by the Latin
American States, that the high seas are free, and
that freedom of fishing is one of the four
freedoms of the seas FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 This is the principle enshrined in Articles 1
and 2 of the 1958 Geneva Convention on the
High Seas. This Convention lays down on this
point general principles of international law
established long before their formulation in the
Convention (I.C.J. Reports 1969. p. 39, para. 65).
------------------------------------------------------------
---------------------------------------------------------
The high seas are not res nullius to be
appropriated by the first-comer, nor by the most
powerful FN2. They belong to the community of
peoples, or to mankind FN3. The high seas are
regarded as res omnium communis, and the use
of them belongs equally to all peoples. The
appropriation of an exclusive fisheries zone in an
area hitherto considered as part of the free seas is
equivalent to deprivation of other peoples of their
rights. The extension of its jurisdiction over the
adjacent sea by a coastal State presupposes a
reduction of the freedom of fishing of other
States, and such respective increase and loss of
power calls for legal justification. At all times,
States have endeavoured to justify their claims in
one way or another. According to Vattel (op. cit.,
above), there must be "some lawful end" for the
appropriation of something which is common
property. Judge Alvarez contended that States
might alter the extent of the territorial sea
"provided that they furnish adequate grounds to
justify the change" (individual opinion, I.C.J.
Reports 1951, p. 150) FN4.
------------------------------------------------------------
---------------------------------------------------------
FN2 This is, I think, the general opinion. On the
question of the nature of the high seas, see
Jenisch, Das Recht zur Vornahme milit‫ن‬rischer
Ubungen und Versuche auf Hoher See in
Friedenszeiten, Hamburg, 1970, pp. 43-52.
FN3 General Assembly resolution 2749 (XXV)
of 17 December 1970 refers in paragraph 1 to the
common heritage of mankind. On the idea of
fishing zones as "property devoted to a purpose"
(Zweckvermogen) and relevant references, see
Rojahn, Die Anspruche, p. 171; on the concept of
coastal nations as trustees for the international
community, see President Nixon's statement of 23
May 1970, quoted by Rojahn in "Zur
zukunftigen", p. 425.
FN4 Quotations on the criterion of what is
reasonable will be found in Brownlie, pp. 196
and 215. The Prime Minister of Iceland has
referred to what is "reasonable" (Memorial of the
Page 63 of 112
Federal Republic of Germany, Part IV, para. 58).
See also I.C.J. Reports 1951, p. 131 "moderate
and reasonable"; I.C.J. Reports 1969, pp. 52 and
54, paras. 98 and 101 (D) (3): "reasonable degree
of proportionality". But the criterion of what is
reasonable should be determined objectively.
------------------------------------------------------------
---------------------------------------------------------
7. I think that the principle of the freedom of the
high seas is as valid as ever it was, but it does not
operate in isolation, it must be applied in
accordance with existing circumstances and the
views currently held. In the time of Grotius, and
up to the end of the Second World War, the
principle could be expressed in absolute terms;
today, reality is otherwise, and compels us to
express it more moderately, and to harmonize it
with other secondary principles.
The case before the Court requires a just solution
to be found to the conflict which is emerging
between the principle of the freedom of the high
seas with regard to fisheries, and the trends in
favour of extension of the zone of jurisdiction of
coastal States. But for this purpose it should be
borne in mind that the Court does not have to
decide a general and [p 98] abstract question, but
a dispute between two countries, for the
settlement of which the positions and
relationships of the Parties should primarily be
considered.
The consideration of "the close dependence of the
territorial sea upon the land domain" (I.C.J.
Reports 1951, p. 133) also underlies the
recognized extent of the new zone of fisheries
jurisdiction. But the establishment of jurisdiction
over the fishing zones must be justified by the
special interest of the coastal State, and by the
existence of reasons permitting of the recognition
that that State has preferential or priority rights.
The 1958 Conference recognized the concepts of
"special interest", "preferential requirements" and
"just treatment" (Convention on Fishing and
Conservation of the Living Resources of the High
Seas, Art. 6; Resolution on Special Situations
Relating to Coastal Fisheries). The scope of these
concepts is limited to fishery conservation, and
the situation of countries whose coastal
population depends on fishing. At the 1960
Conference, Brazil, Cuba and Uruguay proposed
a text in which it was said that "the coastal State
has the faculty of claiming preferential fishing
rights in any area of the high seas adjacent to its
exclusive fishing zone . . ."; this draft furthermore
almost obtained unanimity, but as has already
been stated, it failed to be adopted, along with the
proposal by Canada and the United States.
Although these concepts have not been enshrined
in a convention, and despite the restrictions
subject to which they were advanced, in fact what
is happening to them is what happened to the
Truman Proclamations, they are the "starting
point of the positive law on the subject" (I.C.J.
Re-ports 1969, pp. 32-33). They are accepted as
something natural. As examples of this
development, one might mention the
recommendation of the American Bar
Association of August 1964 (para. 1 (b), quoted
by Johnston, op. cit., p. 252, note 346), the draft
of the Inter-American Committee of 1956, the
Statement by President Nixon of 23 May 1970
(quotations in Rojahn, "Zur zukunftigen", p. 412),
and the proposal of the United States according to
Stevenson (loc. cit., pp. 469-470). In United
Nations General Assembly resolution 2750 C
(XXV) of 17 December 1970, in which the
subjects to be dealt with by the Conference on the
Law of the Sea are laid down, is included the
question of the preferential rights of coastal
States. The Government of the United Kingdom
"accepts that the concept of preferential fishing
rights of coastal States and the spirit of the
proposals embodied in the three-Power
amendment are applicable, are relevant, to the
solution of the present dispute" (CR 74/3, pp. 16-
17) FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 See also CR 74/1, pp. 82-83.
------------------------------------------------------------
---------------------------------------------------------
Along with the special interest and the
preferential rights of the coastal State, account
should be taken of the historic rights of the
countries concerned with high sea fishing. The
acquisition of rights over the sea by prescription
is not admitted, but long usage should be
respected, and [p 99]
that for the same reasons as for the interests of the
coastal State. It is contrary to the concept of
Page 64 of 112
justice to disregard situations which have been
established for years, the capital invested, the
establishment of industries, the protein needs of
populations, and above all the confidence
inspired by a respect for the status quo
concerning the use of the high seas as common
property.
8. The difficulties in the way of harmonizing
these interests are not insurmountable. This
practical possibility of effecting a delimitation of
the respective rights is well demonstrated, for
example, in the negotiations with a view to fixing
the different countries' fishing quotas in the
North-West Atlantic, and the agreements
concerning fisheries in the region of the Faroe
Isles (CR 74/3, pp. 48-55).
The conduct of the parties results from
recognition of their respective interests. Study of
the Exchanges of Notes of 1961, and the
documents supplementary thereto (the
Resolutions of 1948 and 1959), shows that the
right unilaterally to declare an extension of
jurisdiction, as reserved by Iceland, is not an
absolute right. It requires justification. Extension
is contemplated if it becomes necessary for
reasons relating both to the conservation of
fisheries and the needs of the Icelandic people.
That reservation was accepted by the Applicant.
Iceland for its part tacitly recognized the
historical rights of the Applicant in 1961 and in
1972. There is thus mutual recognition of
preferential rights and historic rights, coinciding
with the present trends in practice, and with what
writers have argued to be desirable.
In the North Sea Continental Shelf cases, the
Court was in a situation which was to some
extent analagous to the present situation,
inasmuch as there was no mathematical rule to be
applied to the delimitation of adjacent zones of
the continental shelf. It did not follow from a
denial that the equidistance rule was a legal rule
that another "single equivalent rule" had to be
found. Failing a single rule enabling the areas to
be delimited, the Court stated that nonetheless
"there are still rules and principles of law to be
applied" {I.C.J. Reports 1969, p. 46, para. 83).
When the General Assembly decided to convene
the Conference on the Law of the Sea, it said that
its purpose would be "the establishment of an
equitable international regime" (resolution 2750
C (XXV) of 17 December 1970). The Court
applies "equitable principles", which, "on a
foundation of very general precepts of justice and
good faith" lead to actual rules of law.
"It is not a question of applying equity simply as
a matter of abstract justice, but of applying a rule
of law which itself requires the application of
equitable principles, in accordance with the ideas
which have always underlain the development of
the legal regime of the continental shelf in this
field . . ." (I.C.J. Reports 1969, pp. 46-47, para.
85.)
There is no need to demonstrate and prove what
is a matter of general [p 100] knowledge and
general recognition, namely the changes which
have occurred in fishing techniques, the risk of
exhaustion of fish stocks resulting therefrom, and
the increasing protein requirements of ever more
numerous populations.
9. It cannot be concealed that it is difficult to see
how the concepts of special rights, preferential
rights and historic rights can be brought under the
heading of one of the sources of international
law. It is not easy to prove the existence of a
general practice accepted as law, nor would these
concepts appear to form part of the general
principles of law recognized by civilized nations.
But it does appear possible to overcome the
difficulty resulting from the unfortunate drafting
of Article 38 of the Statute with the assistance of
the teachings of the most highly qualified writers.
One cannot make a sharp division between
customary law and the principles of law. At the
origin of the modern doctrine, in the historical
school to which legal science owes the
foundations of the theory of custom, they can be
seen to be closely united. Savigny teaches us that
practice (usages) is not the foundation of
customary law, but that it is the sign by which the
existence of a custom may be known. The custom
is produced by the community of conviction, not
by the will of men, whose acts only manifest this
community of ideas FN1. This observation is still
of assistance. In order to be binding as a legal
rule, the general conviction (opinio communis)
does not have to fulfil all the conditions
necessary for the emergence of a custom. This is
what explains the value of opinio juris, and why
it may confer on one single act the possibility of
Page 65 of 112
becoming "the starting point of the positive law"
(I.C.J. Reports 1969, pp. 32-33).
------------------------------------------------------------
---------------------------------------------------------
FN1 Savigny, System des heutigen romischen
Rechts (1840), 1, paras. 12 and 18. Puchta,
Pandekten, para. 12, Fifth Edition (1850), p. 19;
Cursus der Institutionen, 1, para. 13, Ninth
Edition (1881), pp. 18 and 19. The Court has
referred to usages accepted as expressing
principles of law: P.C.I.J., Series A, No. 10
(1927), p. 18.
------------------------------------------------------------
---------------------------------------------------------
V. Procedural Questions
The Court is also faced with difficult questions of
procedure. Should the Court confine itself to
upholding or rejecting the submissions of the
Applicant, or should it endeavour to do justice by
deciding the question of the extension?
The first difficulty lies in ascertaining the
meaning of the compromissory clause. The Court
examined its history and its significance in the
Judgment of 2 February 1973 on jurisdiction.
According to the documents known to the Court,
Iceland did not wish to be bound definitively and
permanently by the 12-mile limit; it wished to
preserve full freedom to extend its fisheries
jurisdiction and to implement the Althing
Resolution of 1959 unilaterally. The United
Kingdom showed itself ready to accept [p 101]
the reservation by Iceland of this power to
implement the Althing Resolution, on condition
that the extension was in accordance with an
international agreement embodying a generally
accepted rule of law in relation to fishery limits,
or in conformity with a rule of international law,
established by general consent, which would
permit such an extension (United Kingdom
Memorial on jurisdiction, para. 29).
The two Parties held tenaciously to their
positions. The form proposed by the United
Kingdom might appear to reserve a right of veto
in respect of any future attempt to extend
jurisdiction; the opposition of the United
Kingdom would be sufficient to prevent the
emergence of a new general customary law which
would permit a further extension. On the other
hand, it was very much in Iceland's interests to
preserve its freedom to extend its fishery zone,
and thus to be able to take advantage of the time
which could be foreseen when the trend in favour
of the extension of the fisheries jurisdiction of
coastal States would have acquired sufficient
momentum in general opinion—and it preferred
arbitration to the jurisdiction of the Court.
The impossibility of reconciling such inconsistent
points of view resulted in the adoption of the
neutral formula of the compromissory clause to
which the Parties agreed: "in case of a dispute in
relation to such extension, the matter shall, at the
request of either party, be referred to the
International Court of Justice."
The form of words adopted results from a
compromise; neither of the Parties succeeded in
carrying its point, but both the terms and the
object of the clause appear to be clear: the Court
has the mission of finding a solution to the
dispute which, it was to be feared, would arise as
to the extension of the fisheries zone.
Nevertheless, the interpretation of the clause may
give rise to some doubts. Does it limit the task of
the Court to saying whether the extension
effected by Iceland is or is not in accordance with
law? Is the role of the Court to resolve the dispute
by saying how far and subject to what con-ditions
the extension is in accordance with the law? On
the second hypothesis, the Court would have to
examine the nature of the extension which was
contemplated by the Exchange of Notes of 1961
in relation to the Althing Resolution of 1959 and
Law of 1958—that is to say to take account of the
special situation of Iceland and its priority rights
over the continental shelf.
In a separate opinion, Sir Gerald Fitzmaurice has
said that: "The question of conservation has
therefore no relevance to the jurisdictional issue
now before the Court, which involves its
competence to adjudicate upon the dispute
occasioned by Iceland's claim unilaterally to
assert exclusive jurisdiction for fishery purposes
up to a distance of 50 nautical miles from and
around her coasts." (I.C.J. Reports 1973, pp. 26-
27.) This [p 102] observation, in my opinion,
must be interpreted in relation to the Judgment on
the Court's jurisdiction, and not in relation to the
phase of the procedure concerning the merits. In
Page 66 of 112
that Judgment, the Court said that it would "avoid
not only all expressions of opinion on matters of
substance, but also any pronouncement which
might prejudge or appear to prejudge any
eventual decision on the merits" (ibid., p. 7, para.
11).
It will be as well to observe, all the same, that in
that Judgment, the Court recalled that in its Order
of 17 August 1972 it had recognized the
exceptional dependence of Iceland on its
fisheries, and stated that "from this point of view
account must be taken of the need for the
conservation of fish stocks in the Iceland area"
(I.C.J. Reports 1973, p. 20, para. 41, quoting
I.C.J. Reports 1972, pp. 16 and 17).
"The meaning of the expression extension of
fisheries 'jurisdiction' in the compromissory
clause must be sought in the context of this
Althing Resolution [that of 1959] and in the
complete text of the 1961 Exchange of Notes"
(I.C.J. Reports 1973, p. 8, para. 14). It does not
appear that the jurisdiction of the Court should be
confined to answering yes or no to the claim
made before it that the extension is contrary to
existing international law. The "matter" having
been brought before the Court, the Court must
take cognizance of it as a whole and not in part.
Once the Court had declared in its Judgment that
it had jurisdiction, it should not leave the dispute
open. It should seek a solution to the matter of the
extension, in accordance with such guidelines as
may be deduced from the Exchange of Notes of
1961 and the principles of law. That solution may
well consist of saying how far the extension is in
accordance with law, and how it should be
corrected or rectified in order to be just and
equitable.
The skilful way in which the Applicant has
drafted its submissions has faced the Court with
another problem of procedural law. Should it
confine itself to replying to the claims expressed
in the Application? A municipal tribunal would
be in a difficulty in view of the rule which forbids
it to give judgment ultra petita. But the function
of the Court is wider, and is not limited on
grounds of pure form. The Court is not bound by
the narrow rules of the litis contestatio, especially
when the Respondent fails to appear.
The jurisdiction of the Court results from the
1961 Exchange of Notes, and not only from the
will of the Applicant. The compromissory clause
enables the matter of the extension to be brought
before the Court, so that it can accomplish its
function as principal judicial organ of the United
Nations. The function of the Court is to seek the
solution of the dispute before it (Charter, Arts. 33
and 95), and thus to contribute to the pacific
settlement of disputes between States. When one
Party fails to appear, the other does not have the
power of narrowing down the role of the Court.
[p 103]
VI. Equitable Solution
Is it open to the Court to find for itself an
equitable solution? Is it preferable for it to lay
down guidelines so that the Parties can reach an
equitable agreement?
It is open to the Court, it seems to me, to take the
initiative and examine proprio motu the factual
elements in the case. By making orders for the
conduct of the case, it can entrust qualified
individuals or commissions with the task of
carrying out enquiries or giving expert opinions,
before or after the oral stage of the proceedings
(Statute, Arts. 48 and 50). With this information
to hand, the Court would be able to balance the
interests involved and decide according to
principles of equity FN1. This procedure was not
followed by the Court in 1969, and would not
seem to be a wise course today. Iceland, by
failing to appear, persists in refusing to assist the
Court, and the Parties are either engaged in
negotiation or have expressed the intention of
negotiating.
------------------------------------------------------------
---------------------------------------------------------
FN1 The Court thought it appropriate to submit
for expert opinion certain figures and estimates of
a technical nature (Corfu Channel, I.C.J. Reports
1949, p. 237), when Albania did not appear.
However, the circumstances in that case were
quite different.
------------------------------------------------------------
---------------------------------------------------------
The example of the 1969 Judgment should be
followed; there are several reasons for doing so.
The Icelandic Law of 1948 makes an express
reservation for agreements with other countries to
Page 67 of 112
which Iceland was or might become a party. In
the Resolution adopted by the Althing on 15
February 1972 it was stated that efforts to reach a
solution of the problems connected with the
extension should be continued through
discussions with the United Kingdom and Federal
Republic. The agreement of 13 November 1973
between the United Kingdom and Iceland
expresses the hope that the dispute will be
terminated by an agreement before the expiration
of two years (13 November 1975). The
Government of the Federal Republic for its part
has stated that the Court cannot assume the role
of a legislator for the better management of the
fishery resources of the oceans, and goes on:
"But the Court may be disposed, and this would
certainly be within its judicial functions in
deciding the dispute between the Parties, to give
the Parties some guidance as to the principles
which the Parties should take into account in their
negotiations for the most equitable management
of the fishery resources in the waters of the high
seas around Iceland .. ." (Memorial of the Federal
Republic of Germany, Part IV, para. 149.)
In 1969 the Court stated that "in the matter of
delimitation" there were certain "basic legal
notions", and continued:
"Those principles being that delimitation must be
the object of agreement between the States
concerned, and that such agreement must be
arrived at in accordance with equitable principles.
On a foundation of very general precepts of
Justice and good faith, actual [p 104] rules of law
are here involved which govern the delimitation
of adjacent continental shelves." (I.C.J. Reports
1969, pp. 46-47, para. 85.)
For the purposes of the case now before the
Court, no mathematical rule can be found which
would enable the zone of exclusive fisheries
jurisdiction to be delimited, but it should be
observed that guidelines do exist for reaching an
equitable delimitation. The special interest of
Iceland in the adoption of measures for
conservation of fish in the zone of the continental
shelf, and in consideration being given in priority
to the needs of its population and its industry, is
recognized. On the other hand, so far as possible
these rights must be reconciled with the historic
interests or rights of the Applicant. The actual
catch potential of each Party, without risk of
exhaustion of the stock, must be considered.
Provision should therefore be made for reserved
zones, catch quotas, limitation on number of
vessels, types of permitted vessels, size of mesh
of nets, times of fishing, transition period,
periodic revision of agreements, etc.
The Court could, following the method of the
1969 Judgment, decide that the Parties are under
an obligation to continue negotiations in such a
way that "in the particular case, and taking all the
circumstances into account, equitable principles
are applied" (I.C.J. Reports 1969, p. 47, para. 85).
This obligation to negotiate is "not only to enter
into negotiations, but also to pursue them as far
as possible, with a view to concluding
agreements" (P.C.I.J., Series A/B, No. 42, 1931,
p. 116—a form of words adopted in I.C.J.
Reports 1969, p. 48, para. 87).
"As the Permanent Court of International Justice
said in its Order of 19 August 1929 in the case of
the Free Zones of Upper Savoy and the District of
Gex, the judicial settlement of international
disputes 'is simply an alternative to the direct and
friendly settlement of such disputes between the
Parties' (P.C.I.J., Series A, No. 22, at p. 13)."
(I.C.J. Reports 1969, p. 47, para. 87.)
VII. The Submissions
I would add that the following points could well
have been brought out in the Judgment. The
extension decided on by Iceland in 1972, to the
extent that it was intended to implement the 1959
Althing Resolution, was not in itself invalid as
against the United Kingdom. On the other hand,
Iceland's statement that it regarded the 1961
agreement as no longer in force was invalid, for it
was the validity of that agreement which entitled
Iceland to implement the 1959 Resolution. Once
the dispute had been brought before the Court, it
was for the Court to decide on the validity of the
extension; and it was bound to do so taking into
account the 1961 agreement, which bound the
Parties, and the law of the sea. It is for this end
that the Court should lay down guidelines to
define the conditions on which the extension may
be regarded as legally justified.
(Signed) F. de Castro. [p 105]
Page 68 of 112
SEPARATE OPINION OF JUDGE SIR
HUMPHREY WALDOCK
1. I am in general agreement with both the
operative part and the reasoning of the Judgment
of the Court. As, however, there are some aspects
of the case which I consider should have received
more prominence in the Judgment, I feel it
incumbent on me to deal with them in this
separate opinion.
***
2. The Judgment refers to the Exchange of Notes
of 11 March 1961 and draws certain conclusions
from it regarding the United Kingdom's
recognition of Iceland's exceptional dependence
on coastal fisheries and regarding Iceland's
recognition of the United Kingdom's traditional
fisheries in the waters around Iceland. It does not,
however, give the 1961 Exchange of Notes the
importance which, in my opinion, that agreement
necessarily has as a treaty establishing a
particular legal regime governing the relations
between the parties with respect to fishing in
those waters. The 1961 Exchange of Notes,
which was negotiated and concluded immediately
after the Second United Nations Conference on
the Law of the Sea had failed to resolve the
problem of fishery limits, had as its express
object the settlement of an existing fishery
dispute between Iceland and the United
Kingdom. This it did upon terms which lay down
specific rules to cover the case of a subsequent
claim by Iceland to extend her fishery jurisdiction
beyond the 12-mile limit assented to by the
United Kingdom in that agreement. The result, in
my view, is that the starting point for determining
the rights and obligations of the Parties in the
present case has to be the 1961 Exchange of
Notes which, by its Judgment of 2 February
1973, the Court has held to be valid, in force and
applicable to the extension of Iceland's fishery
jurisdiction now in question before the Court.
3. The 1961 Exchange of Notes has to be read in
the light of the fishery dispute which it was
designed to settle. Under varying Icelandic
fishery limits, United Kingdom fishing vessels
had fished in the waters around Iceland for some
centuries, before the conclusion of the Anglo-
Danish Fishery Convention of 24 June 1901. By
that Convention Denmark, which was then
internationally responsible for the foreign
relations of Iceland, in effect agreed to apply to
the waters around Iceland the pro-[p 106]visions
of the North Sea Fisheries Convention of 1882
regarding fishery limits and the regulation of
fisheries. In particular, Article 2 of the 1901
Convention provided:
"The subjects of His Majesty the King of
Denmark shall enjoy the exclusive right of
fishery within the distance of 3 miles from low-
water mark along the whole extent of the coasts
of the said islands, as well as of the dependent
islets, rocks and banks.
As regards bays, the distance of 3 miles shall be
measured from a straight line drawn across the
bay, in the part nearest the entrance, at the first
point where the width does not exceed 10 miles."
The Convention, which was subject to
termination by either party on giving two years'
notice, remained in force until 3 October 1951,
governing the fishery relations between the
United Kingdom and Iceland until that date.
Meanwhile, Iceland's separate international
personality was being increasingly recognized
and she was separately represented at The Hague
Codification Conference of 1930 convened to
codify, inter alia, the law of territorial waters. At
that Conference her delegate argued in favour of
a 4-mile limit for Iceland as having a historical
basis and being "a fair limit, provided it were
possible to have some rules for protecting the
fisheries in certain areas outside the territorial
waters". The Conference having failed to reach
any agreement on the limit of the territorial sea,
British fishing vessels continued to fish in the
waters around Iceland up to the 3-mile limit
under the 1901 Convention, even if at a very
reduced rate during the 1939-1945 War and
immediately thereafter.
4. The end of the Second World War, however,
proved to be a turning point in the history of
Icelandic fisheries. On 17 June 1944 the Althing
proclaimed the establishment of the Republic of
Iceland and Iceland became fully independent.
The following year saw the issue by President
Truman, on 28 September 1945, of two
Proclamations claiming for the United States,
respectively, jurisdiction over the natural
Page 69 of 112
resources of the subsoil and sea-bed of the
continental shelf contiguous to the United States
and the right, either alone or together with other
interested States, to establish fishery conservation
zones in areas of the high seas contiguous to its
coasts. The new doctrines advanced in these
Proclamations, and especially the invocation of
the continental shelf as a legal concept, provided
the stimulus for a variety of new maritime claims
in different countries, including Iceland, where
the public were already restive about the fishing
of foreign vessels up to three miles from their
shores.
5. So it was that in 1948 the Althing passed a law
entitled "Law Concerning the Scientific
Conservation of the Continental Shelf Fisher-[p
107]ies", which included the following
provisions:
"Article 1. The Ministry of Fisheries shall issue
regulations establishing explicitly bounded
conservation zones within the limits of the
continental shelf of Iceland; wherein all fisheries
shall be subject to Icelandic rules and control;
Provided that the conservation measures now in
effect shall in no way be reduced. The Ministry
shall further issue the necessary regulations for
the protection of the fishing grounds within the
said zones. . .
Article 2. The regulations promulgated under
Article 1 of the present law shall be enforced only
to the extent compatible with agreements with
other countries to which Iceland is or may
become a party."
These provisions, if they may have owed some of
their inspiration to the two United States
Proclamations, were not based on the same
principle as either of those Proclamations. The
continental shelf Proclamation issued by
President Truman asserted a claim to jurisdiction
and control over the natural resources only of the
subsoil and sea-bed of the continental shelf,
expressly declaring that it in no way affected the
character as high seas of the waters above it.
Iceland's Law of 1948, on the other hand,
asserted a claim to be entitled to establish fishery
conservation zones in the waters of the high seas
above her continental shelf and to exclusive
jurisdiction and control therein. Indeed, it was not
until 1969 and by a quite separate law that
Iceland proclaimed her sovereign rights in respect
of the natural resources of the continental shelf
itself (United Nations Legislative Series,
ST/LEG/SER.B/15, p. 364). Again, President
Truman's fishery Proclamation, unlike Iceland's
Law of 1948, was not related to the continental
shelf and made explicit provision for the
participation of other States in the conservation
measures.
6. Moreover, the Expose des Motifs
accompanying the Law of 1948 made it plain
that, although expressed as essentially a
conservation measure, the Law was intended to
be an enabling Act authorizing the Fisheries
Ministry to extend Iceland's fisheries jurisdiction
over areas of the continental shelf as and when
the Ministry judged it appropriate (United
Nations Legislative Series, ST/LEG/SER.B/6, pp.
514-515). In the following year, on 3 October
1949, the Government of Iceland gave notice of
her denunciation of the Anglo-Danish
Convention of 1901, with the result that the
Convention, in accordance with its terms, ceased
to be in force two years later, i.e., on 3 October
1951. During that interval, in the course of the
Anglo-Norwegian Fisheries case, the United
Kingdom had recognized Norway's historic claim
to a 4-mile territorial sea and the Court itself had
endorsed the validity of the system of straight
baselines applied by Norway along the bays and
islets off the Norwegian coast (I.C.J. Reports
1951, pp. 126 and 132-139). Aware, no doubt, of
these [p 108] developments, Iceland early in 1952
informed the United Kingdom of her intention to
issue new fishery regulations in pursuance of the.
Law of 1948; and on 19 March of that year
promulgated regulations which provided for a
fishery zone extending four miles to seaward of
straight baselines drawn along the outermost
points of the coasts, islands and rocks and across
the openings of bays, and prohibited all foreign
fishing activities within that zone.
7. Iceland's 1952 Fisheries Regulations
encountered protests from the United Kingdom
with respect to the 4-mile claim and certain of the
straight baselines, the compatibility of which with
the principles laid down in the Anglo-Norwegian
Fisheries case it called into question. The fishing
industry in the United Kingdom also reacted
against the new Regulations by trying to prevent
Icelandic vessels from landing their catches in the
Page 70 of 112
United Kingdom. After various abortive attempts
to solve the dispute, a modus vivendi was reached
in 1956, under the auspices of the Organization
for European Economic Co-operation. Under it
there was to be no further extension of Iceland's
fishery limits pending the General Assembly's
discussion of the International Law Commission's
report on the law of the sea, a discussion which
resulted in the convening at Geneva in 1958 of
the first United Nations Conference on the Law
of the Sea.
8. The Conference, although it succeeded in
adopting four major Conventions on the Law of
the Sea, failed to reach agreement either on the
limit of the territorial sea or on the extent of a
State's exclusive fishery rights. On these
questions it had to content itself with
recommending the convening of a second Law of
the Sea Conference specifically for the purpose of
trying to settle them. Even so, the Geneva
Conference of 1958 was not without its
implications with regard to Iceland's fishery
limits. Thus, by Articles 1 and 2 of the High Seas
Convention, the Conference agreed that the high
seas comprise "all parts of the sea that are not
included in the territorial sea or in the internal
waters of a State", and that the freedom of the
high seas comprises "inter alia, both for coastal
and non-coastal States . . . Freedom of fishing".
By Articles 1 and 2 of the Continental Shelf
Convention it further agreed that the rights
attaching to a coastal State in virtue of its
adjacent continental shelf relate solely to the
natural resources of the sea-bed and subsoil,
including only such living resources as belong to
sedentary species; and that these rights of the
coastal State "do not affect the legal status of the
superjacent waters as high seas". Clearly,
Iceland's claim in her Law of 1948 to be entitled
to establish her fishery jurisdiction over the
waters of all her continental shelf did not find any
justification in these provisions of the High Seas
and Continental Shelf Conventions adopted by
the 1958 Geneva Conference. [p 109]
9. Similarly, the Convention on Fishing and
Conservation of the Living Resources of the High
Seas took a different approach to the conservation
of fishery resources outside the territorial sea
from that of the Law of 1948. Reflecting the
approach of President Truman's fishery
Proclamation rather than of the Icelandic Law,
the Geneva Conference recognized that "a coastal
State has a special interest in the maintenance of
the productivity of the living resources in any
area of the high seas adjacent to its territorial
sea", but did not allow any exclusive rights of
jurisdiction to coastal States outside their
territorial sea. Instead, it placed a general
obligation on non-coastal States to enter into
negotiations with the coastal State, at the latter's
request, "with a view to prescribing by agreement
the measures necessary for the conservation of
the living resources of the high seas in that area"
(emphasis added). True, if such negotiations were
requested by a coastal State and had not led to an
agreement within six months, the Convention
empowered the coastal State to adopt unilateral
measures of conservation; but it did so only under
strictly circumscribed conditions and pending the
settlement of any disagreement as to their validity
by a special commission. Thus, in this
Convention the 1958 Conference left fishery
conservation in waters outside the territorial sea
essentially a matter to be agreed between the
coastal State and any other States concerned and,
in the event of disagreement, to be decided by an
independent commission. In consequence,
Iceland's Law of 1948 could equally not find its
justification in the Convention on Fishing and
Conservation of the Living Resources of the High
Seas.
10. In the Territorial Sea and Contiguous Zone
Convention, the 1958 Conference settled the rules
governing the baselines for delimiting the
territorial sea, and incorporated in them, subject
to minor variations, the straight baseline system
sanctioned by the Court in the Anglo-Norwegian
Fisheries case. It also recognized that a coastal
State has full sovereignty and so, by implication,
exclusive fishery rights within its territorial sea.
But it failed to reach agreement on the extent of
the territorial sea, though in prescribing that the
contiguous zone may not extend beyond 12 miles
from the baseline, it implied that a fortiori the
territorial sea may not extend beyond that limit. It
follows that this Convention, like the others
adopted at the 1958 Conference, did not provide
Iceland with a legal basis for the continental shelf
fisheries claim enunciated in her Law of 1948.
11. Two other developments at the 1958
Conference require to be noticed, since they
contributed to shaping the course of the present
Page 71 of 112
dispute. The first is the emergence at the
Conference of the concept of the preferential
position of a coastal State whose people are
specially dependent upon coastal fisheries. As
paragraph 56 of the Judgment recalls, [p 110]
although an Icelandic proposal embodying this
concept failed to obtain the necessary majority,
the Conference adopted a resolution concerning
"the situation of countries or territories whose
people are overwhelmingly dependent on coastal
fisheries for their livelihood or economic
development". This resolution, entitled "Special
Situations relating to Coastal Fisheries",
recognized that "such situations call for
exceptional measures befitting particular needs",
and made the recommendations which are set out
in that paragraph of the Judgment. In such
"special situations" the resolution in effect
advocated that, if catch-limitation becomes
necessary for the purpose of conservation, non-
coastal States should collaborate with the coastal
State to establish agreed conservation measures
which recognize such preferential requirements
of the latter as result from its dependence on the
fishery in question. Thus, even in the case of a
State specially dependent on coastal fisheries,
like Iceland, the resolution did not envisage the
unilateral assumption of exclusive rights by the
coastal State. On the other hand, it clearly did
envisage that they should have a certain
preference in the exploitation of the fisheries in
adjacent areas of the high seas.
12. The other development of the 1958
Conference requiring to be noticed is the
ventilation first by Canada, and then by the
United States, of the concept of a contiguous
zone of exclusive fisheries as a possible means of
compromising the differences between those who
advocated a 3-mile territorial sea and those who
considered that a coastal State should be at liberty
to choose any breadth for the territorial sea up to
12 miles. At this Conference the version of the
compromise to attract most support was that of
the United States which provided for a 6-mile
territorial sea and a further 6-mile contiguous
zone of exclusive fisheries, subject to the proviso
that States, the nationals of which had fished in
the fishery zone regularly for the past five years
should have the right to continue to do so. But the
United States' proposal did not obtain the
necessary two-thirds majority in the voting and,
as already indicated, no agreement was reached at
the Conference on the questions of the breadth of
the territorial sea or of the extent of a State's
exclusive fishery rights.
13. Soon after the conclusion of the Conference,
as the Judgment relates, Iceland announced her
intention to reserve exclusively for Icelandic
fishermen the right of fishing within 12 miles
from her baselines and further to expand her
exclusive fishing zone by modifying those
baselines; and to this intention she gave effect by
the issue on 30 June 1958 of new "Regulations
concerning the Fisheries Limits off Iceland".
Article 1 of these Regulations proclaimed a 12-
mile fishery limit around Iceland drawn from new
baselines and Article 2 prohibited all fishing
activities by foreign vessels within the new
fishery limit. The Regulations, as they expressly
stated, were issued under the power conferred on
the Ministry of Fisheries by the Althing in the
Law of 1948 "Concerning the Scientific [p 111]
Conservation of the Continental Shelf Fisheries".
Their immediate inspiration, however, seems to
have been the trend at the 1958 Conference
towards allowing a 12-mile contiguous zone of
exclusive fisheries as a compromise to resolve the
differences regarding the breadth of the territorial
sea.
14. The validity of the new Regulations was
immediately challenged by the United Kingdom
and various attempts were made to settle the
resulting dispute by negotiation which, however,
failed to produce any solution before the second
United Nations Conference on the Law of the Sea
began in March 1960. During the course of these
negotiations, on 5 May 1959, the Althing passed
a resolution which requires mention as it later
became an element in the 1961 Exchange of
Notes. This resolution, inter alia, stated:
". . . the Althing declares that it considers that
Iceland has an indisputable right to fishery limits
of 12 miles; that recognition should be obtained
of its rights to the entire continental shelf area in
conformity with the policy adopted by the Law of
1948, concerning the scientific conservation of
the continental shelf fisheries, and that fishery
limits of less than 12 miles from baselines around
the country are out of the question". (Emphasis
added.)
The Althing thus made it clear that the 1958
Regulations asserting a claim to a 12-mile fishery
Page 72 of 112
limit in no way implied any modification by
Iceland of her objective of extending her
exclusive fishery zone over "the entire
continental shelf area".
15. The period between the 1958 and 1960
Conferences also saw the conclusion of a fishery
conservation convention by 14 States interested
in the fisheries of the North-East Atlantic. This
was the North-East Atlantic Fisheries Convention
of 24 January 1959, which embraced the
Icelandic area and to which Iceland and the
United Kingdom are parties FN1. The
Convention set up for the North-East Atlantic
Area a regime for the conservation and
exploitation of fisheries, operated by a Fishery
Commission and by Regional Committees and
similar to the regime created a decade earlier for
the North-West Atlantic by the North-West
Atlantic Fishery Convention of 8 February 1949.
The 1959 Convention is expressed to apply to all
the waters situated within the North-East Atlantic
area, but under Article 2 nothing in the
Convention is to be "deemed to affect the rights,
claims or views of any contracting State in regard
to the extent of jurisdiction over fisheries". [p
112]
------------------------------------------------------------
---------------------------------------------------------
FN1 As also is the Federal Republic of Germany,
Applicant in the other Fisheries Jurisdiction case
now before the Court.
------------------------------------------------------------
---------------------------------------------------------
16. The Second Conference on the Law of the
Sea, held in Geneva in March and April 1960,
failed to reach agreement on what had become
the twin questions of the breadth of the territorial
sea and the extent of exclusive fisheries. At the
Conference, attention again centred on the
possibility of solving these questions on the basis
of a 6-mile territorial sea plus a further 6-mile
contiguous zone of exclusive fisheries subject to
a short phase-out period for States having
existing fisheries within the 6-mile contiguous
fishery zone. Moreover, it was a joint United
States-Canadian proposal in that form, providing
for a 10-year phase-out period and also for
preferential fishing rights for a coastal State in a
situation of special dependence on adjacent
fisheries, which was the text that paragraph 52 of
the Judgment refers to as having failed of
adoption by only one vote.
***
17. Meanwhile, the dispute between the United
Kingdom and Iceland concerning both the 12-
mile limit and the new baselines promulgated in
the 1958 Regulations still subsisted; and they
undertook a series of negotiations from 1 October
1960 until the end of that year with a view to its
settlement. These negotiations, as was only to be
expected, were conducted by the Parties in the
context not only of the previous history of the
dispute but of the comprehensive review of the
law of the sea which had just taken place at the
first and second Geneva Conferences on the Law
of the Sea.
18. Thus, at the opening meeting on 1 October
1960 the Icelandic delegate recalled the views
expressed by Iceland at those Conferences. He
stressed that Iceland is in a unique position in that
her people are dependent entirely upon the
coastal fisheries; that it was essential for her to
safeguard her coastal fisheries; that she did not
consider conservation measures alone to be
sufficient and that it was therefore her policy to
secure exclusive jurisdiction "in accordance with
international law". He also referred to the fact
that a 6 + 6 solution, with an adjustment period of
10 years, had nearly been reached at the second
Conference. He further said that two proposals
tabled by the Icelandic delegation had received
considerable support: namely, that countries in
special situations should receive preferential
treatment even beyond 12 miles; and that a tran-
sitional period should not apply to special
situation countries.
19. The United Kingdom, in its opening
statement, also recalled the compromise proposal
of the United States and Canada for a 12-mile [p
113] fishery limit, subject to a 10-year
transitional period for States having existing
fisheries between the 6 and 12-mile limits. It
observed that a bilateral agreement had just been
concluded between the United Kingdom and
Norway based upon that compromise proposal
and subject to a 10-year transitional period for
United Kingdom fishing vessels. At the same
time, the United Kingdom reaffirmed its
recognition of Iceland's special situation as a
Page 73 of 112
country whose economy depends mainly upon its
fisheries and conceded that the United States-
Canada formula would, for this reason, need to be
modified to take account of that factor. That
modification, it suggested, should be the
reduction of the transitional period of United
Kingdom fishing from ten to five years.
20. The negotiations continued with proposals
and counter-proposals from each side. The
Icelandic delegates insistently pressed for the
reservation to Icelandic fishermen of certain areas
even outside the 12-mile limit as being essential,
in their view, to solve the problem of densely
fished areas. The United Kingdom delegation no
less insistently contested that view and objected
that in the light of the scientific evidence
concerning the fisheries, the reservation of areas
outside the 12-mile limit could not be justified on
grounds of conservation; while offering to
examine together with the Icelandic delegation
any proposals for conservation measures in
particular areas or for policing regulations to
avoid difficulties in any areas of more dense
fishing, they declined to accede to Iceland's
demand for reserved areas outside the 12-mile
limit.
21. The compromise by which the dispute was
ultimately settled in the 1961 Exchange of Notes
is set out in paragraph 26 of the Judgment. In
substance, the Parties agreed to settle the dispute
on the basis of: a 12-mile fishery zone around
Iceland; baselines as promulgated in the 1958
Regulations subject to four modifications; a 3-
year transitional period for United Kingdom
fishing between the 6-mile and 12-mile limits;
exclusion of United Kingdom fishing vessels
from seven specified areas between the 6-mile
and 12-mile limits; a clause providing for the
con-tingency of any further initiative taken by
Iceland to extend her fishery jurisdiction in
implementation of the Althing Resolution of 5
May 1959. Thus, while accepting the reduction of
the transitional period still further from five to
three years as well as restrictions within the
transitional zone even during that period, the
United Kingdom did not accept any Icelandic
rights of jurisdiction outside the 12-mile limit. On
the contrary it made its whole acceptance of the
package settlement conditional upon Iceland's
acceptance of a provision regulating the position
between the Parties in the event of any future
initiative taken by Iceland under the Althing
Resolution of 5 May 1959 to extend her
jurisdiction. It further emphasized that its
acceptance of the settlement was "in view of the
[p 114] exceptional dependence of the Icelandic
nation upon coastal fisheries for their livelihood
and economic development".
22. Thus, whatever differences there may have
been in the views of the two countries regarding
the applicable rule of general international law,
Iceland and the United Kingdom agreed in 1961
that the 12-mile limit, which was the only fishery
limit that had come near to general acceptance at
the 1960 Conference, should thereafter constitute
the limit of Iceland's fishery jurisdiction as
between themselves. They further agreed that this
12-mile limit should remain in force between
them unless and until an extension of Iceland's
fishery jurisdiction should become opposable to
the United Kingdom in accordance with the final
clause in the Exchange of Notes which provided:
"The Icelandic Government will continue to work
for the implementation of the Althing Resolution
of 5 May 1959 regarding the extension of
fisheries jurisdiction around Iceland, but shall
give to the United Kingdom Government six
months' notice of such extension and, in case of a
dispute in relation to such extension, the matter
shall, at the request of either party, be referred to
the International Court of Justice."
This clause, as the Court stressed in its Judgment
on the jurisdiction of the Court (I.C.J. Reports
1973, p. 3), is not a mere compromissory clause
ancillary to the main provisions of the agreement.
It was a basic condition of the settlement by
which Iceland obtained the United Kingdom's
recognition of Iceland's 12-mile limit, her
enlarged baselines, the brief three-year
transitional period and the exclusion of United
Kingdom vessels from seven areas even during
the transitional period.
23. In that Judgment the Court traced the origins
of the compromissory clause in the negotiations
leading up to the conclusion of the 1961
Exchange of Notes (para. 18):
"The records of these negotiations which were
drawn up by and have been brought to the Court's
attention by the Appplicant, as well as certain
Page 74 of 112
documents exchanged between the two
Governments, show that, as early as 5 October
1960, it had become apparent that the United
Kingdom would accept in principle Iceland's
right to exclusive fisheries jurisdiction within the
12-mile limit following the end of a transitional
period. However, the Government of the United
Kingdom sought an assurance that there would be
no further extensions of Icelandic fisheries
jurisdiction excluding British vessels, in
implementation of the Althing resolution, except
in conformity with international law. In the
course of the discussions concerning this point
both parties accepted the notion that disputes
arising from such further extensions should be
submitted to third-party decision." (Emphasis
added.) [p 115]
Having then traced the history of the drafting of
the clause, the Court concluded (paras. 21-23):
"The history of the negotiations not only shows
the intentions of the parties but also explains the
significance of the six months' notice required to
be given by the Government of Iceland to the
United Kingdom Government, for on 2 December
1960 the United Kingdom representatives stated
that the assurance they were seeking should
provide, inter alia, that, 'pending the Court's
decision, any measure taken to give effect to such
a rule will not apply to British vessels'. The
Foreign Minister of Iceland is recorded as having
replied on the same date that the most difficult
feature of the problem of the assurance was how
to deal with the point that 'if there was a dispute,
no measure to apply an extension on fishery
limits would be taken pending reference to the
International Court'.
The idea of a six months' notice to be given by
Iceland was first discussed on 3 December 1960
and was embodied in the formula advanced by
the Icelandic delegation on that same date, which
is transcribed in paragraph 19 above. This
requirement of notice was agreed to by the
parties. It may be assumed that they considered
that such a period would allow sufficient time to
settle the question through negotiations or, if no
settlement were reached, to submit the whole
issue to the Court, including, in accordance with
the statutory powers possessed by the Court, the
applicability of the measures of exclusion to
British vessels pendente lite . . .

This history reinforces the view that the Court
has jurisdiction in this case, and adds emphasis to
the point that the real intention of the parties was
to give the United Kingdom Government an
effective assurance which constituted a sine qua
non and not merely a severable condition of the
whole agreement: namely, the right to challenge
before the Court the validity of any further
extension of Icelandic fisheries jurisdiction in the
waters above its continental shelf beyond the 12-
mile limit." (Emphasis added.)
This view of the compromissory clause, which I
share, is amply justified by the context of the
clause in the settlement embodied in the 1961
Exchange of Notes and by the record of the
negotiations.
24. It follows, in my opinion, that under the very
terms of the 1961 Exchange of Notes a
subsequent extension by Iceland of her fishery
jurisdiction beyond the 12-mile limit agreed to in
that treaty is not opposable to the United
Kingdom if that extension does not comply with
the conditions laid down in the compromissory
clause. [p 116]
* measures to enforce the Regulations of 14 July
25. The principal facts relating to Iceland's
subsequent extension of her fishery jurisdiction to
50 miles are summarized in paragraphs 27-34 of
the Judgment. When Iceland made a public
announcement of her intention to extend her
fishery limit to 50 miles from her baselines, she
at the same time announced that she considered
the 1961 Exchange of Notes as "terminated". On
the United Kingdom's objecting that it considered
Iceland's intended extension of her fishery limit
to have no basis in international law and
reminding her of the compromissory clause in the
1961 Exchange of Notes, Iceland repeated her
claim that the compromissory clause was no
longer in force. Similarly, when in an aide-
memoire of 24 February 1972 Iceland gave to the
United Kingdom formal notice of her intention to
proceed to the extension of her fishery limit not
later than 1 September of that year, she reasserted
her thesis that the provisions of the Exchange of
Notes were "no longer applicable" and
"consequently terminated". Again, when on 14
April 1972 the United Kingdom filed an
Page 75 of 112
Application bringing the present case before the
Court, Iceland informed the Court, in a letter of
29 May 1972, that the Agreement of 11 March
1961 was not of a permanent nature, that its
object and purpose had been fully achieved, and
that it was no longer applicable and had
terminated; that there was on 14 April 1972 no
basis under the Statute for the Court to exercise
jurisdiction; and that she was not willing to
confer jurisdiction on the Court and would not
appoint an agent. Furthermore, although the
Court had not yet pronounced on its jurisdiction,
Iceland proceeded, on 14 July 1972, to issue new
Regulations extending her fishery limit to 50
miles as from 1 September of that year.
26. When the issue of the new Regulations led
the United Kingdom to file a request for the
indication of interim measures of protection,
Iceland in a telegram to the Court of 29 July 1972
reiterated her view that there was no basis for the
exercise of the Court's jurisdiction in the case,
asserted that there was consequently no basis
either for the request for an indication of interim
measures and took no part in the proceedings. On
17 August 1972 the Court made its Order for
interim measures in which, inter alia, it indicated
that, pending its final decision in the pro-
ceedings, Iceland should refrain from taking any
1972 against vessels registered in the United
Kingdom and engaged in fishing activities in the
waters around Iceland outside the 12-mile fishery
zone. Notwithstanding this Order of the Court,
however, Iceland proceeded to enforce her new
Regulations against United Kingdom vessels as
soon as they came into effect on 1 September
1972. In a Note of 28 August 1972 to the United
Kingdom, Iceland explained that she did not
consider the Order to be binding upon her "since
the Court has no jurisdiction in the matter".
27. So long as Iceland's claim, that the 1961
Exchange of Notes was [p 117] no longer
applicable between her and the United Kingdom,
remained undecided, the question whether the
enforcement of her new Regulations against the
United Kingdom violated that agreement could
perhaps be considered as being in doubt. In its
Judgment of 2 February 1973, however, the Court
rejected seriatim all Iceland's objections to the
application of the 1961 Exchange of Notes to the
present dispute and upheld its jurisdiction to
pronounce upon the merits. That Judgment, as
Iceland could not fail to be aware, was binding
upon her under Article 36, paragraph 6, of the
Statute of the Court and res judicata for the
purposes of the present case. Yet, even after the
handing down of that Judgment, Iceland persisted
in her efforts to enforce the new 50-mile limit
against United Kingdom vessels and, as is
evidenced by her telegram to the Court of 14
January 1974, in denying the Court's competence
to adjudicate upon the dispute. Whatever may
have been the considerations that led Iceland to
repudiate her obligations under the
compromissory clause of the 1961 Exchange of
Notes, the clear implication of the Court's
Judgment of 2 February 1973 is that she lacked
any legal justification for thus attempting to
revoke the assurance which she had given to the
United Kingdom in that Agreement.
*
28. The comprehensive character of Iceland's
repudiation of the assurance which she had given
in the 1961 Exchange of Notes needs little
emphasis in the light of the facts recited above.
By denying the Court's competence to decide the
dispute in relation to the extension of her fishery
jurisdiction, by denying the Court's power to
indicate interim measures and by disregarding the
Court's Order indicating that she should refrain
from taking measures to enforce the extension
against United Kingdom vessels pendente lite,
Iceland in effect tore up the assurance which she
had given in 1961 and sought unilaterally to
impose the new extension upon the United
Kingdom. It follows that Iceland's extension of
her fishery jurisdiction promulgated in 1972 does
not comply with the conditions laid down in the
compromissory clause of the 1961 Exchange of
Notes. It further follows, in my opinion, that the
extension is not opposable to the United
Kingdom in the present proceedings.
29. It is true that the object of the compromissory
clause was to enable either Party, and more
especially the United Kingdom, to have the
question of the validity of any further extension
of Iceland's fishery jurisdiction determined by the
Court; and that, as the records of the negotiations
show, the clause was directed to the possibility of
some future development in maritime
international law. It is also true that the United
Kingdom has invoked the clause and asked for a
Page 76 of 112
determination of the invalidity of the new
extension under maritime international law; [p
118] and that the Court has upheld its jurisdiction
to pronounce upon the merits. In my opinion,
however, Iceland's repudiation of the
compromissory clause, and of the assurance
which she thereby gave in the 1961 Exchange of
Notes, constitutes an initial and conclusive
ground of the invalidity of the extension as
against the United Kingdom. To decide otherwise
would be to give Iceland the benefit of her own
wrong by leaving the question of invalidity open
before the Court. At the same time, by giving
effect to this initial ground of invalidity, which
derives from general principles of international
law, the Court would be fulfilling the object of
the compromissory clause, no less than by
pronouncing upon the validity of the extension
under maritime international law.
30. Consequently, I do not think that it would be
correct to regard Iceland's total refusal of the
Court's jurisdiction as having the effect only of
exposing her to a judgment in default of
appearance under Article 53 of the Statute. To
attribute to it so limited an effect would not, in
my view, be consistent with the object of the
compromissory clause or compatible with the
Court's finding that the assurance given to the
United Kingdom in the clause was intended to be
not merely a "severable condition" but a "sine
qua non of the whole agreement". The
compromis-sory clause, it follows from that
finding, is an integral part of the law applicable
between Iceland and the United Kingdom with
regard to an extension of Iceland's fishery
jurisdiction, and, as such, is also part of the law to
be applied by the Court in deciding upon the
validity of such an extension.
31. Accordingly, in my opinion, Iceland's total
repudiation of the assurance which she gave in
the 1961 Exchange of Notes constitutes an
additional, and quite fundamental, ground for
finding that Iceland's extension of the fishery
jurisdiction in 1972 is not opposable to the
United Kingdom in the present proceedings. That
in itself would, I think, suffice to justify the Court
in upholding the second and third submissions of
the United Kingdom. Unlike the first submission
which asks the Court to declare the extension to
be without foundation in international law and
invalid erga omnes, these two submissions
specifically challenge Iceland's right to assert an
exclusive fisheries jurisdiction, as against the
United, Kingdom, beyond the limits agreed to in
the Exchange of Notes of 1961. At the public
sitting of 29 March 1974, in reply to a question
from a Member of the Court, counsel for the
United Kingdom explained that the first three
submissions of the United Kingdom are not so
connected that the second and third cannot stand
without the first, and that it is therefore open to
the Court to adjudicate on the second and third
without adjudicating upon the first. Nor does
counsel seem to have intended to modify that
statement when he added: "it being, of course,
understood and accepted that submissions (b) and
(c) are based on general international law and are,
of course, not confined merely to the effect of the
Exchange of Notes". General international law,
no doubt, forms an element in the second and
third submissions since it is the United
Kingdom's thesis that the 12-mile [p 119] limit
agreed to in 1961 is at the same time the
generally accepted limit of exclusive fishery
jurisdiction. But what differentiates these
submissions from the first submission is the
express reliance which they place on the
agreement between the Parties in the 1961
Exchange of Notes regarding a 12-mile fishery
limit around Iceland.
32. My view therefore is that, in addition to the
reasons given in the Judgment, Iceland's
repudiation of her obligations under the 1961
Exchange of Notes would in itself suffice to
justify subparagraphs 1 and 2 of the operative
part of the Judgment which in effect upheld the
second and third of the United Kingdom's final
submissions.
**
33. As to the first submission, it follows that I
agree with the Court that for the purposes of the
present Judgment it is not, strictly speaking,
necessary to pronounce upon the question raised
by that submission, namely, whether the
extension of Iceland's fishery limit to 50 miles is
without foundation in international law and is
invalid. Framed in that way, the submission
appears to ask the Court to hold that the extension
was ipso jure illegal and therefore invalid erga
omnes; and this view of the submission is
confirmed by the statement of counsel at the
Page 77 of 112
public sitting on 25 March 1974 when, inter alia,
he said: "This answers the question whether an
extension of an exclusive fisheries zone beyond
12 miles would be illegal, it would." Although I
consider that Iceland's extension of her fishery
limit beyond the 12-mile limit agreed to in 1961
would not be opposable to the United Kingdom
under general international law as well as under
the Exchanges of Notes, I should have more
hesitation in upholding the proposition advanced
in the first submission. The reason is that it does
not seem to me to formulate the issue in the
manner in which it presents itself in modern
maritime international law.
34. After the failure of The Hague Codification
Conference of 1930 to establish the 3-mile limit
as a universal rule and obligatory limit for the
breadth of the territorial sea, the question arose as
to what, if any, is the rule of international law
concerning the breadth of the territorial sea. The
prevailing opinion was that, after the failure of
the Conference, the 3-mile limit remained a limit
which could be said to be generally accepted and,
therefore, ipso jure, valid and enforceable against
any other State; but that a claim in excess of that
limit could no longer be said to be ipso jure
contrary to international law and invalid erga
omnes; and that the validity of such a claim as
against another State would depend on whether it
was accepted or acquiesced in by that State (cf.
G. Gidel, Droit international public de la mer,
1934, Vol. 3, pp. 134-135). [p 120]
35. Since 1930 a considerable number of new
claims to maritime jurisdiction have been
advanced by coastal States, whether to a larger
territorial sea or to other forms of maritime
jurisdiction. In the absence of clearly established
general rules, the legal issue has continued to
present itself in terms of the opposability of the
claim to each other State rather than of the
absolute legality or illegality of the claim erga
omnes; in other words, in terms of the acceptance
or acquiescence of other States. At the two
Geneva Conferences on the Law of the Sea of
1958 and 1960 the 12-mile limit figured
prominently in the debates both with respect to
the breadth of the territorial sea and the extent of
the exclusive fishery zone, though adopted at
those Conferences in regard to neither. In
fisheries, as paragraph 52 of the Judgment relates,
the law evolved through State practice and a
coastal State's right to an exclusive fishery zone
up to 12 miles from its baselines appears to have
become generally accepted. Larger claims have
certainly been advanced by individual States and
the third United Nations Law of the Sea
Conference is already in session. But these larger
claims, while accepted by some States, are
rejected by others and beyond the 12-mile limit
general acceptance does not exist, nor, as
paragraph 53 of the Judgment observes, can the
Court anticipate the law before the legislator has
laid it down. Therefore, an extension of fisheries
jurisdiction beyond 12 miles is not, in my
opinion, opposable to another State unless shown
to have been accepted or acquiesced in by that
State.
36. In the present instance, Iceland's unilateral
extension of her exclusive fishery limits from 12
to 50 miles as from 1 September 1972 was at
once objected to by the United Kingdom.
Consequently, if it were necessary to rest the
Judgment on this point, I would consider the
Court justified in holding that Iceland's extension
of her fishery jurisdiction beyond the 12-mile
limit agreed to in the 1961 Exchange of Notes is
also not opposable to the United Kingdom under
general international law.
***
37. The Judgment, however, lays the emphasis on
Iceland's obligation to respect the United
Kingdom's existing fishing rights, the United
Kingdom's obligation, in turn, to respect Iceland's
preferential rights as a coastal State specially
dependent on the fisheries in adjacent waters, the
resulting obligation of both countries to
undertake negotiations in good faith for the
equitable solution of their differences regarding
their respective fishing rights and their duty to
examine together such measures as may be
required for the conservation and development
and equitable exploitation of the fishery resources
in the disputed waters. On this aspect [p 121] of
the case I need only add a few observations
regarding the competence of the Court under the
compromissory clause to adjudicate upon these
issues, a question which is examined in
paragraphs 43-48 of the Judgment. 1 fully
subscribe to the reasoning developed in those
paragraphs which I believe to be borne out by the
records of both the negotiations leading to the
Page 78 of 112
conclusion of the 1961 Exchange of Notes and of
the dispute concerning Iceland's extension of her
fishery jurisdiction to 50 miles.
38. Even the brief account of the 1960
negotiations given in paragraphs 18-22 of this
opinion shows that preferential rights,
conservation and the traditional fishing rights of
the United Kingdom were very much a subject of
the differences between the Parties in those
negotiations. The opening statements of either
side on 1 October 1960 set the framework for the
negotiations, and it is clear that from the outset
Iceland invoked her exceptional dependence on
her coastal fisheries, referring specifically to her
proposal at the 1960 Conference that countries in
special situations should receive preferential
treatment even beyond 12 miles. The United
Kingdom, on the other hand, while acceding to
Iceland's claim to be a "special situation" country,
took a quite different view of the preferential
treatment to which Iceland was entitled in virtue
of her special situation; for it took the position
that this might entitle Iceland merely to a
reduction of the phase-out period for British
vessels. In subsequent meetings the Icelandic
delegation fought hard for areas to be entirely
reserved to Icelandic fishermen outside the 12-
mile limit; so much so that those areas were
referred to at the meeting of 5 October 1960 as a
more or less continuous belt of water around the
Icelandic coast. Indeed, the Icelandic delegation
seems to have suggested that this might actually
amount to a further belt of 12 miles from which
all United Kingdom fishing should be excluded.
The response of the United Kingdom delegation
was that this could not conceivably be justified
either on grounds of conservation or on practical
grounds of density of fishing.
39. In short, running through the negotiations
were arguments concerning preferential
treatment, reserved areas outside the 12-mile
limit, conservation and dense fishing. It was in
this context and in face of the constant pressure
of the Icelandic delegation for reserved areas
outside the 12-mile limit, as well as in the context
of Iceland's declared policy of seeking to extend
her fishery jurisdiction over the whole continental
shelf, that the United Kingdom delegation raised
the question of a guarantee against a further
extension of Iceland's fishery jurisdiction except
in conformity with international law. Indeed,
when the question of a gua-[p 122]rantee was
first raised at the meeting of 5 October 1960, it
was in the context of a discussion as to what
would be the position after the transitional period
in regard to the reserved areas outside the 12-mile
limit which had been demanded by Iceland.
40. It is true that the guarantee soon assumed a
broader aspect in the discussions and was then
expressed to provide an assurance against the
exclusion of United Kingdom vessels from any
area outside the 12-mile limit except in
conformity with a generally accepted rule of
international law. In other formulations it was
referred to as an assurance against any extension
of Iceland's "fishery limits", but in its final
version it was expressed in the entirely general
form "extension of fisheries jurisdiction around
Iceland" and linked to the Althing Resolution of 5
May 1959 concerning Iceland's policy of seeking
recognition of her "rights" to the whole
continental shelf. That Resolution was itself
linked to Iceland's 1948 "Law concerning the
Scientific Conservation of the Continental Shelf
Fisheries" which, although expressed simply as a
conservation measure, was an "enabling" Act
authorizing the fisheries minister to extend
Iceland's fisheries jurisdiction over areas of the
continental shelf as and when he judged it
appropriate (see paras. 5 and 6 of this opinion).
41. Although Iceland's primary objective has, no
doubt, been to extend her exclusive fishery rights
over more and more areas of the continental
shelf, it does not seem to me justifiable to regard
either the Law of 1948 or the Althing Resolution
of 1959 as relating only to extensions of Iceland's
exclusive fishery limits as the means for
expanding her claims to the fishery resources of
the continental shelf. Quite apart from the express
reference to "conservation" as the motif for the
Law of 1948, it is clear not only from the
proceedings of the 1958 and 1960 Conferences
but also from the records of the 1960 negotiations
that Iceland was ready to make use of any
concept, and especially those of "preferential
rights" and "conservation zones" as a means of
furthering her fisheries objectives. Consequently,
in my opinion, it would be altogether too narrow
an interpretation of the compromissory clause to
interpret the reference in it to the Althing
Resolution of 1959 as confining the Court's
competence to a dispute in relation to an
Page 79 of 112
extension of Iceland's exclusive fishery limits and
nothing else. The compromissory clause itself
does not refer to an extension of fishery limits but
to an extension of fishery jurisdiction, a term apt
to cover any form of an attempt by Iceland to
extend her authority over fisheries outside the 12-
mile limit. [p 123]
42. In addition, as I have indicated, such a narrow
interpretation does not seem consistent with the
travaux preparatoires of the compromissory
clause. Equally, it does not seem to me consistent
with the Court's conclusion, in its Judgment of 2
February 1973, that:
". .. the real intention of the parties was to give
the United Kingdom Government an effective
assurance ... : namely, the right to challenge
before the Court the validity of any further
extension of Icelandic fisheries jurisdiction in the
waters above its continental shelf . . ." (I.C.J.
Reports 1973, p. 13, para. 23; emphasis added).
If, instead of extending her exclusive fishery limit
pure and simple, Iceland had introduced measures
greatly to restrict, or render unprofitable, foreign
fishing but in the guise of a "preferential" or
"conservation" regime, it would make nonsense
of the "effective assurance"—the "sine qua non of
the whole agreement" in the Exchange of
Notes—to interpret it as not covering such
measures. Nor should it be overlooked that the
"extension of fisheries jurisdiction" effected by
Iceland's 1972 Regulations was in fact expressed
in those Regulations to be an application of the
Law of 1948 concerning "Scientific Conservation
of the Continental Shelf Fisheries".
Consequently, it seems to me evident that the
Court's competence must be understood as
covering questions of preferential rights and
conservation, and more especially when raised in
direct connection with a dispute in relation to an
extension of Iceland's zone of exclusive fisheries.
*
43. There remains, however, the question whether
the present "dispute" does involve the questions
of preferential rights and conservation. I share the
view of the Court that, although occasioned by
Iceland's unilateral extension of her fishery
jurisdiction, the present dispute at the same time
clearly includes differences regarding those
matters. This seems to me sufficiently established
by the account of the dispute given in paragraphs
17-29 of the United Kingdom's Memorial on the
merits which show that the differences between
the Parties were not limited to the question of the
validity of the extension of the exclusive fishery
zone, as such, but involved Iceland's claims to
exclusive fishery limits by reason of her right to
preferential treatment and her claims to be
entitled to take unilateral conservation measures.
44. Thus, in the very first explanation of the
extension offered by the Icelandic Government,
in an aide-memoire of 31 August 1971 (Annex 3
of the Memorial on the merits), it justified the
measure by reference to [p 124] its need to
maintain the resources of the sea and to
"measures of protection essential to safeguard the
vital interests of the Icelandic people in the seas
surrounding its coasts". Moreover it reiterated
this justification in an aide-memoire of 24
February 1972, enclosing a Memorandum
entitled Fisheries Jurisdiction in Iceland and
containing material designed to support that
justification. The United Kingdom objected that
an extension of the exclusive fishery limit was
not a necessary means of achieving conservation
and offered to examine with Iceland agreed
catch-limitation schemes in areas outside the 12-
mile zone. Iceland disputed the efficacy of
multilateral conservation measures, now arguing
that the problem was not one of conservation but
of division of stocks. The United Kingdom
objected that it had fishing rights in the waters
around Iceland which were firmly based on
traditional use, specific agreement and customary
law. It repeated its catch-limitation proposal,
referring in this connection to the North-East
Atlantic Fisheries Commission and reminding
Iceland that under the Special Situations
Resolution of 26 April 1958 any such catch-
limitation arrangement would have to recognize
any preferential rights of the coastal State
resulting from its dependence on the fisheries
concerned. As to the question of preferential
rights, it is true that Iceland showed some
tendency to invoke a trend in favour of according
priority rights to coastal States in general and not
merely in special situations. But, that the dispute
involved Iceland's claim to preferential rights is
further evidenced by her Note of 11 August 1972
to the United Kingdom (Annex 10 of the
Memorial on the merits); for the Icelandic
Page 80 of 112
Government there recalled:
"In the discussions between representatives of the
Icelandic and British Governments in July 1972
on the question of fisheries limits the Icelandic
side made quite clear its willingness to continue
the discussions.
The Icelandic representatives laid main emphasis
on receiving from the British side positive replies
to two fundamental points:
1. Recognition of preferential rights for Icelandic
vessels as to fishing outside the 12-mile limit.
2. That Icelandic authorities should have full
rights and be in a position to enforce the
regulations established with regard to fishing
inside the 50-mile limit."
In that Note, it is true, Iceland was thinking in
terms only of an interim agreement regarding
United Kingdom fishing, but it shows that "pre-[p
125]ferential rights" were very much part of
Iceland's armoury of legal argument in the
dispute.
45. A "dispute", as has frequently been said both
by the Permanent Court of Internationa! Justice
and by this Court FN1, is: "a disagreement on a
point of law or fact, a conflict of legal views or of
interests between two persons." In the present
instance it seems to me clear that the "dis-
agreement on a point of law" and the "conflict of
legal views or of interests", though occasioned by
Iceland's extension of her fishery limit, included
disagreements and conflicts as to whether
Iceland's right to preferential treatment entitled
her to exclusive fishery rights, whether exclusive
rights may be claimed in the name of
conservation, whether conservation measures
may be taken unilaterally and whether Iceland's
claims should prevail over the United Kingdom's
traditional rights in the waters in dispute.
Accordingly, I think the Court fully justified in
concluding that these issues form an integral part
of a dispute in relation to an extension of fisheries
jurisdiction around Iceland within the meaning of
the compromissory clause.
------------------------------------------------------------
---------------------------------------------------------
FN1 E.g., Mavrommatis Palestine Concessions
case, P.C.I.J., Series A, No. 2, at p. 11; Right of
Passage over Indian Territory case, I.C.J. Reports
1960 at p. 34.
------------------------------------------------------------
---------------------------------------------------------
46. As to the question of the Court's competence
in the event of the failure of the parties to resolve
the dispute by negotiation or other means of their
own choice, I agree with the Court that this
question is hypothetical and does not call for its
consideration in the present proceedings. Under
Article 60 of the Statute the Judgment is "final
and without appeal". It thus constitutes a final
disposal of the case brought before the Court by
the Application of 14 April 1972, subject only to
the right reserved to any party by that Article to
request the Court to construe the Judgment in the
event of a dispute as to its meaning or scope.
Consequently, should some other dispute
between the parties as to their respective fishery
rights in the waters around Iceland be brought
before the Court unilaterally by either of them it
would be for the Court, in the light of the
particular circumstances of that dispute, then to
determine its jurisdiction to entertain the case and
the validity of any objections that might then be
raised to the exercise of its jurisdiction.
(Signed) H. Waldock. [p126]
DISSENTING OPINION OF JUDGE GROS
[Translation ]
I consider that Iceland's claim to establish an
exclusive fishing zone over the superjacent
waters of the continental shelf is contrary to the
rules of international law, but the reasoning
which leads me to that opinion, and my analysis
of the dispute itself, are different from what is
contained in the Judgment, from both the
reasoning and the decision of the Court; a
judgment of the Court comprises the reasoning
part and the operative clause, and to understand
the scope of the judgment it is not possible to
separate either of these elements from the other,
and an elliptical operative clause only reveals its
meaning when read with the reasoning leading up
to it. Adapting myself to the method adopted by
the Court, I have cast a negative vote on the
questions which it has selected; I must explain
how I understood the Court's mission in the
Page 81 of 112
present case, the meaning of the question put to
it, the answer to be given thereto, and thus the
reasons supporting my dissenting opinion.
1. The first question which was raised for the
Court in this merits-phase of the case was to
determine what its task was. The Court has
recognized in its Judgment of 2 February 1973 on
jurisdiction that the Exchange of Notes of 11
March 1961 contained in its penultimate
paragraph, a "compromissory clause" which
conferred jurisdiction on the Court to give
judgment in any dispute which might arise
concerning the extension of fisheries jurisdiction
around Iceland. Examination of that agreement
and of the negotiations which led up to its being
concluded leads me to an interpretation different
from that in the Judgment as to the definition of
the disputes which could be brought before the
Court.
2. The basic principle of the Court's jurisdiction is
the acceptance of that jurisdiction by the Parties;
whether what is in question is a compromissory
clause providing for the jurisdiction, or a special
agreement, the rule is that interpretation cannot
extend the jurisdiction which has been
recognized. It should be added in the present case
that, Iceland having failed to appear, and Article
53 of the Statute being applied by the Court, it is
particularly necessary to satisfy oneself that the
Court is passing upon a dispute which has been
defined as justiciable by Tceland and the United
Kingdom, and not some other dispute constructed
during consideration of the case by the Court. An
obligation to bring a dispute before a court is
always reciprocal and of equal extent for each
State which has accepted it; hence the need to
proceed to a special verification in this case, since
Iceland has not co-operated in the precise
definition of the dispute. I have stated on another
occasion that I disagreed with the penalizing
approach of the Court with regard to a State
which fails to appear, in its interpretation of
Article 53 (Fisheries Jurisdiction, I.C.J. [p 127]
Reports 1973, p. 307); the present phase has
strengthened my conviction on this point.
3. The Exchange of Notes of 1961 would not
appear to leave room for any doubt, and I will
quote the English text which is the authoritative
text:
"The Icelandic Government will continue to work
for the implementation of the Althing Resolution
of May 5, 1959, regarding the extension of
fisheries jurisdiction around Iceland, but shall
give to the United Kingdom Government six
months' notice of such extension and, in case of a
dispute in relation to such extension, the matter
shall, at the request of either party, be referred to
the International Court of Justice."
Thus the reference is to a possible dispute in
relation to the extension by the Government of
Iceland of its fisheries jurisdiction around Iceland
in relation to the limits recognized in the 1961
agreement. The Court, in its Judgment of 2
February 1973, stated in the last explanatory
paragraph on this point:
"The compromissory clause enabled either of the
parties to submit to the Court any dispute
between them relating to an extension of
Icelandic fisheries jurisdiction in the waters
above its continental shelf beyond the 12-mile
limit. The present dispute is exactly of the
character anticipated in the compromissory clause
of the Exchange of Notes." (I.C.J. Reports 1973,
p. 21, para. 43; emphasis added.)
It is important to note that the formula underlined
may be found in paragraphs 11, 14, 15, 16, 17,
18, 19, 20, 21, 22, 27, 28, 40 and 41 of the
Judgment. To rely on the form of words used in
the operative clause of the 1973 Judgment in
order to assert that the Court found that it had
jurisdiction to entertain the Application, with the
implication that the content of that Application
binds the Court, is to disregard, first the inherent
connection between the reasoning of the 1973
Judgment, which is based solely on the concept
of extension of fisheries jurisdiction, and the
form of the operative clause; and secondly the
rule that it is the 1961 treaty which determines
what the subject-matter of the justiciable dispute
is, and not the Application or the submissions of
one of the Parties. The Court should decide what
the extent of its jurisdiction is, without being
bound by the argument addressed to it on the
point.
I have quoted the original-language text of the
Judgment to avoid any ambiguity resulting from
translation, and to show that I cannot accept the
argument that a form of words as precise as
Page 82 of 112
"dispute in relation to the extension of fisheries
jurisdiction" can be interpreted as impliedly
including any connected question which one of
the Parties may have had occasion to refer to in
the course of the negotiations preceding the 1961
agreement, if the other Party refused to make that
question the subject of the agreement itself. That
an idea or even a proposal may have been [p 128]
put forward in the course of negotiations is not
sufficient for them to survive rejection, and
acceptance of that rejection by the author of such
proposals; any other view of the matter would
enable multiple disputes to be artificially created,
simply by the introduction into a negotiation, as a
matter of principle, of various problems. No
negotiations could be usefully carried on if courts
had such freedom to extend their results. It would
become necessary to draw up minutes of
agreement as to the meaning of the most
important articles of a treaty, and then, as
suspicion increased, of all its articles.
In the present case, it is clear that the 1961
agreement only contemplated one sort of dispute
as justiciable, namely the extension of Iceland's
fisheries jurisdiction.
4. If any confirmation from a textual source were
necessary on this point, it should be recalled that
the only passage where any more general
consideration is mentioned is in the United
Kingdom reply to the Icelandic Note of 11 March
1961, in the last paragraph and in the following
form:
"I have the honour to confirm that in view of the
exceptional dependence of the Icelandic nation
upon coastal fisheries for their livelihood and
economic development, and without prejudice to
the rights of the United Kingdom under
international law towards a third party, the
contents of Your Excellency's Note are
acceptable to the United Kingdom and the
settlement of the dispute has been accomplished
on the terms stated therein." (Application, p. 25.)
Nothing further need be said; this is an opinion
held by the Government of the United Kingdom,
and not a term of the agreement.
5. The kind of dispute which the parties to the
1961 agreement had in contemplation, and which
they agreed to bring before the Court, was pegged
to a legal point which was specially defined, in a
limited way, and because assurances, which were
also special and precise, had been sought and
obtained on this one point. If, as I hold, this
definition of the justiciable dispute has not been
applied in the present Judgment, the Court has
gone beyond the bounds of its jurisdiction.
Iceland, which is absent from the proceedings,
has from the outset disputed that the Court has
any jurisdiction, and this claim was rejected in
the Judgment of 2 February 1973 by an almost
unanimous Court, which observed that the
dispute was exactly of the character anticipated in
the 1961 agreement (cf. para. 3 above) and that
that agreement was still in force and applicable.
The Judgment on the merits, on the other hand,
departs from the definition of the dispute on
which judgment is to be given on two points:
(a) in that it does not decide the precise question
of law contemplated in the compromissory clause
of 1961, i.e., the conformity with inter-
[p129]national law of the extension to 50 miles of
Iceland's fisheries jurisdiction;
(b) in that it adopts an extensive interpretation, in
relation to the text, of the/1961 agreement on the
scope of the Court's jurisdiction, as if it had read:
any dispute on any question whatever connected
with a modification of the fisheries regime fixed
by the present agreement.
With some internal contradiction, the Judgment
simultaneously declines to exercise the
jurisdiction conferred upon the Court by the 1961
agreement and exercises jurisdiction which was
not created by that agreement. Study of the
records of the negotiations which led to the 1961
agreement will show that this is so.
6. A first series of meetings took place between 1
October and 4 December 1960, and a second
series between 17 and 20 December 1960
(documents deposited in the Registry of the Court
by the United Kingdom on 13 October 1972
FN1).
------------------------------------------------------------
---------------------------------------------------------
FN1 I note that the Government of Iceland,
having been informed of the deposit of these
records and of the possibility of consulting them
in the Registry of the Court, did not take
Page 83 of 112
advantage of this possibility. The records
prepared by the United Kingdom delegation to
these negotiations have been widely used by the
United Kingdom in its pleadings and by the Court
in its Judgment of 2 February 1973. The Court
has not been able to take cognizance of any
similar record on the Icelandic side.
------------------------------------------------------------
---------------------------------------------------------
At the first meeting the views of the Icelandic
Government were explained extremely clearly as
being a claim to exclusive fisheries jurisdiction,
but "in accordance with international law", and
for the time being it was a matter of obtaining the
United Kingdom's recognition of the 12-mile
limit. These talks also show that the Icelandic
Government was already talking of establishing a
more or less continuous belt of reserved waters
around Iceland, possibly extending for 12 miles,
from which British ships would be barred from
navigation as well as fishing, and it is at this point
that the British idea appears of the necessary
guarantee against any fresh extension of the
fishing zone, if the 12-mile limit were recognized
in the current negotiations.
United Kingdom delegation:
"Moreover, we should need to have some
guarantee in any agreement that after the
transitional period the Icelandic Government
would not seek to exclude our vessels from any
of the waters outside 12 miles, unless of course
there were to be some change in the general rule
of international law agreed under United Nations
auspices. Would your Government be prepared to
give us such a guarantee in any agreement?"
(Records, p. 14.)
This request for a guarantee is repeated
incessantly (cf. para. 8 on p. 17, and para. 14: ". .
. an assurance that there would be no further
extensions towards the Continental Shelf"), and
the first formulation of a guarantee was provided
by the Government of Iceland in these terms: [p
130]
"The Icelandic Government reserves its right to
extend fisheries jurisdiction in Icelandic waters in
conformity with international law. Such
extension would, however, be based either on an
agreement (bilateral or multilateral) or decisions
of the Icelandic Government which would be
subject to arbitration at the request of appropriate
parties." (Records, p. 20.)
(See also page 27 where the link between what
was to be included in the proposed agreement and
the "guarantee" is openly recognized, and what
was included in the agreement was no more than
the adjustment of the jurisdiction of Iceland in a
12-mile fishing zone; further, the Icelandic
delegate only refers to an "assurance" in respect
of a possible extension of jurisdiction after the
agreement, never in respect of anything else, cf.
page 31.)
7. The basic element to which the guarantee
which was contemplated related was thus clearly
the extension of fishing rights claimed by Iceland
over waters beyond the 12-mile limit, in
accordance with whatever the current state of
international law might be at the chosen moment;
the means contemplated by Iceland were
negotiation, bilateral or multilateral, or a
unilateral decision of the Icelandic Government
which would be subject to arbitration. At no time
during the further talks on this question of the
guarantee does it appear that there was any
modification of this position taken up by Iceland
as to the content of the commitment which it
contemplated undertaking, and the form of words
proposed by the Icelandic delegation (and
reproduced in para. 6 above) was gradually
altered to what ultimately became the penultimate
paragraph of the Exchange of Notes of 1961 (see
text in para. 3 above). The United Kingdom
position was an immediate recognition that any
extension of fishery limits effected in accordance
with international law would be opposable to the
United Kingdom; on the other hand, an
agreement would be necessary, not a unilateral
decision, even with the possibility of arbitration.
Thus the British counter-proposal was the
following:
"Except in accordance with the terms of any
subsequent agreement between the United
Kingdom and Iceland, or of any subsequent
multilateral agreement which embodies a
generally accepted rule of law in relation to
fishing limits, the Icelandic Government will not
take any action to exclude vessels registered in
the territory of the United Kingdom from fishing
in any area outside the 12-mile limit." (Records,
Page 84 of 112
p. 33.)
8. The immediate response of the Icelandic
delegate, after studying this text, was that it was
necessary to "leave the Icelandic Government's
hands 'untied' " in respect of possible further
extensions of fishery jurisdiction, in particular, he
explained, by applying customary law which
developed more easily than treaty law as the two
Geneva Conferences had shown (ibid., p. 33, last
paragraph). The point was taken up by a [p 131]
member of the British delegation who said that a
unilateral extension was not acceptable, even
when based on custom; the Icelandic
representative then confirmed that there was a
conflict of views on this by saying that "further
extension beyond 12 miles would only be on a
basis of a change either of international law or of
customary law" (ibid., p. 34, para. 2).
9. At the following meeting the point in dispute
was defined by the United Kingdom delegation as
follows:
"They appreciated Mr. Andersen's desire that the
draft should cover the possibility of a further
extension of Icelandic fishery limits in
conformity with a new rule of customary law, as
distinct from an international agreement. The
difficulty, however, would be how to establish
that such a customary rule existed. In the United
Kingdom view such a rule would not only have to
reflect the practice of a number of States, but also
be generally accepted, i.e., established by general
consent and recognized as such by the
International Court of Justice." (Records, p. 38.)
The same day, the United Kingdom delegation
handed to the other party the following draft:
"Assurance by the Icelandic Government on no
extensions of fishery limits beyond 12 miles
The Icelandic Government will not take any
action to exclude vessels registered in the United
Kingdom from fishing in any area outside the 12-
mile limit except in accordance with the terms of
a subsequent international agreement embodying
a generally accepted rule of law in relation to
fishery limits, or in conformity with a rule of
international law, established by general consent
and recognized as such by the International Court
of Justice, which would permit such an extension
of fishery jurisdiction." (Records, p. 40.)
10. There can therefore be no doubt as to the
concrete expression of the legal point in issue
between the two States; Iceland was proposing to
take a unilateral decision, based upon
international law—treaty law or customary law—
according to its own assessment of the state of the
law at the time of a fresh extension of the fishery
limits, and the United Kingdom was asking that
the existence of the rule permitting the extension
should be susceptible of being decided by the
Court (cf. a revised draft of the assurance quoted
in para. 9 above: "Any dispute as to whether such
a rule exists may be referred at the request of
either party to the International Court of Justice."
(Records, Annex 2, para. 6, p. 40.)). According to
the United Kingdom delegation, the assurance
would have to cover three essential points:
"(1) The Icelandic Government will not claim an
extension of [p 132] fishery limits beyond 12
miles except in accordance with a rule of
international law which has been clearly
established (a) by embodiment in an international
agreement, or (b) accepted by general consent as
a rule of customary international law.
(2) Any dispute about whether such a rule of
international law has been established shall be
submitted to the International Court of Justice:
and pending the Court's decision, any measure
taken to give effect to such a rule will not apply
to British vessels.
(3) The assurance on this point will form an
essential part of the agreement.
If these three points could be met then Her
Majesty's Government would do all they could to
help the Icelandic Government on the form and
presentation of the assurance. In particular, if a
reference to the Althing's Resolution of May 5
1959 was important, they would have no
objection to including one." (Records, p. 42,
emphasis added in para. 2.)
I take note of the mention of the Resolution of 5
May 1959, to which the United Kingdom did not
object, but which was left as entirely under the
responsibility of Iceland, and was not
incorporated in the agreement so as to become
one of the terms thereof. The Icelandic Law
remains what it was, without it being possible for
the United Kingdom to invoke it, if it were not
observed by Iceland, in support of an
Page 85 of 112
international claim based on the idea that an
extension of Iceland's jurisdiction would only be
lawful if carried out on the basis and in the spirit
of the Law of 1948.
The Icelandic delegate replied to the British
proposed text that while the formula proposed in
London was not acceptable to his Government:
"there did not seem to be any real differences of
opinion between the two sides. The Iceland
Government must state that their aim was the
Continental Shelf. They were, however, ready to
state their intention to base their action on rules
of international law and also their willingness to
submit any dispute to the International Court"
(Records, pp. 42-43, para. 7).
What was contemplated was clearly a dispute
over a future action by Iceland, announced quite
unequivocally, directed to exclusive jurisdiction
over the waters of the continental shelf, and that a
judicial decision should be obtained on such an
action according to international law, and no
more, but that is what the British party was
seeking. On 2 December 1960 the Icelandic
delegate said that the most difficult feature of the
problem of the assurance was to meet the British
requirement that no measure to apply an
extension would be taken pending reference to
the International Court of a dispute relating to
such measures (Records, p. 44, para. 5, in fine).[p
133]
11. The last meeting of the first series of talks
confirms that the essential feature of the
assurance would be that "it would ... be for the
International Court to decide whether [any act
extending Icelandic jurisdiction] was in fact in
accordance with International Law" (Records, p.
46, para. 3).
It was at this point that the British proposal
appears, for six months' advance notice before
any extension, making it possible to refer the
matter to the Court before the measure was
actually applied (Records, p. 46, para. 6), and the
drafting of the penultimate paragraph of the
Exchange of Notes of 1961 thereafter progressed
more easily. The United Kingdom delegation
proposed three draft texts, and each of these
contained in one form or another the basic idea
that possible disputes would relate to the question
whether a rule of international law exists
permitting an extension of Icelandic fisheries
jurisdiction (Records, p. 48 and p. 49, para. 5).
Annex A at page 50 gives the final version of the
text expressing in concrete form the British views
on the guarantee which should result from the
referral of the matter to the Court to ensure that
any fresh extension of Iceland's jurisdiction
would be in accordance with international law.
12. This detailed study of the negotiations is
necessary to dissipate any doubt as to what was
involved in the commitment to judicial settlement
undertaken by Iceland and the United Kingdom
in March 1961. There was never any question of
"guaranteeing" the United Kingdom against
anything other than possible Icelandic measures
to extend its fisheries jurisdiction, of which the
United Kingdom was already aware, affecting the
superjacent waters of the continental shelf, by
means of a recourse to judicial settlement limited
to the question of the conformity of such
measures with international law. All the drafts
which were discussed are quite clear on this
point, up to the final text of the Exchange of
Notes of March 1961, where the reference to the
conformity of the measures with international law
disappears. Examination of the records relating to
the disappearance of these terms supplies the
explanation of it. The United Kingdom obtained
what it had always asked for, but to spare
Icelandic feelings, it accepted a form of words
which was less explicit than the drafts which had
been discussed; this is recorded expressis verbis
in the Record for 5 December 1960, page 48,
paragraph 1.
It is thus apparent how little in accordance with
historical truth it would be to deduce, from this
purely formal concession by the British
Government, that there was a transformation and
extension of the system of a jurisdictional
guarantee which that Government had
unceasingly sought as a condition sine qua non of
any agreement with Iceland. The United
Kingdom wished to be assured of possible
examination by the Court, according to
international law, of any subsequent measure
extending Iceland's jurisdiction as it was to be
recognized in the contem-plated agreement; it
obtained this assurance as it had been negotiated,
and finally accepted by Iceland on the
understanding that the formulation should be
Page 86 of 112
pitched in a low key. [p 134]
13. The second series of talks, held from 17 to 20
December 1960, confirms that the United
Kingdom was seeking a "watertight" agreement
on the basis of an assurance that Iceland "would
not attempt to extend [its fishery limits] beyond
12 miles . . . otherwise than with the agreement of
the International Court" (Record for 17
December, p. 3, para. 15; again on 18 December,
p. 4, para. 3, in the same terms). Furthermore the
Icelandic delegate said that this form of
assurance, accepted in principle by Iceland,
"would have the additional advantage, from the
British point of view, of including an undertaking
by the Icelandic Government to the effect that the
existing base-lines would not be altered otherwise
than with the agreement of the International
Court". This again confirms, if it were necessary,
that the dispute contemplated involved the
examination according to international law of the
extension of the limits, and nothing else. This
was also to draw inspiration from the Court's
Judgment in the Fisheries case in 1951, where it
was said that: "the method employed for the
delimitation of the fisheries zone ... is not
contrary to international law" (I.C.J. Reports
1951, p. 143). For completeness the identical
terminology used on 19 December 1960 by the
Foreign Minister of Iceland should be mentioned:
"recognition by Her Majesty's Government of
Iceland's 12-mile fishery jurisdiction in return for
an assurance against further extension" (Records,
p. 5, para. 1).
14. The Judgment also invokes (para. 32) the
attempts to negotiate an interim agreement in
1972, which were unsuccessful, in support of the
contention that Iceland agreed to negotiate on the
basis of a preferential right. In 1972 Iceland only
entered into negotiations with several States in
order to fix very short adjustment periods in
respect of its Regulations extending exclusive
jurisdiction to 50 miles, which it never for a
moment contemplated withdrawing or modifying
(cf. para. 25 below) and, as regards the United
Kingdom, the kind of discussion which took
place is indicated by the Note of the Icelandic
Government of 11 August 1972 (Annex 10 to the
United Kingdom Memorial), the very one in
which it is claimed that a request by Iceland for a
discussion of preferential rights can be found, for
it ends with the following words: "(c) The term of
the agreement would expire on 1 June, 1974."
This Note of 11 August 1972 dates from after the
hearing held by the Court, in Iceland's absence,
on 1 August 1972, on the request for interim
measures of protection, and is prior to the Order
of 17 August 1972, which Iceland has not
accepted: what was contemplated was an
agreement for less than two years, and the
Icelandic Government stated that it intended to
"have full rights ... to enforce the regulations [of
14 July 1972]. . . inside the 50-mile limit".
The abortive negotiations of 1972 are totally
irrelevant to the definition of the subject of the
dispute; on the Icelandic side they were directed
to the conclusion of an agreement leading to the
extinction of the rights of the United Kingdom in
1974, and organizing an interim regime until [p
135] then, the Regulations of 14 July being kept
in force, in application of the Althing Resolution
of 15 February 1972, which only contemplated
transitional agreements. Confirmation of this is
supplied by an Icelandic Memorandum of 19
January 1973 (Annex 13 to the Memorial),
proposing an agreement to be in force until 1
September 1974, i.e., for 18 months only. Finally
the fact that the agreement ultimately concluded
on 13 November 1973 entirely reserved the legal
position of each party cannot be overlooked, and
for Iceland that position was not a claim to
preferential rights but to exclusive jurisdiction
extending to 50 miles. That the United Kingdom
may have had a different conception of Iceland's
rights is not an element of interpretation of the
position of that State.
15. The history of the negotiation of the text
founding the jurisdiction of the Court in the
present case explains—if there were any need, the
text being clear—the laconic provision in the
penultimate paragraph of the 1961 agreement.
When Iceland entered into an undertaking in
1961 it did so to a limited extent. The Court
should give an answer on the only question which
could be brought before it; since it has not done
so, it has not exercised the jurisdiction conferred
by the agreement. I have made it clear for my
own part that I regarded the extension from 12 to
50 sea miles as contrary to general international
law, and therefore non-opposable to any State
fishing in the waters adjacent to the 12-mile limit
around Iceland. The Court stated in its Judgment
Page 87 of 112
in the North Sea Continental Shelf cases that:
"The coastal State has no jurisdiction over the
superjacent waters." (I.C.J. Reports 1969, p. 37,
para. 59.) The claim of Iceland is expressly in
relation to those waters. As to the lawfulness of
an encroachment into sea areas which all States
fishing in the area, without exception, regarded as
forming part of the high seas on 1 September
1972, it is unarguable that it was lawful; Articles
1 and 2 of the Convention on the High Seas and
Article 24 of the Convention on the Territorial
Sea are provisions which are in force, and since
the only argument relied on to exclude them is
that they are outdated, no reply on this point is
needed; the calling of a third codifying
Conference in July 1974 amply demon-strates
that certain procedures, and agreement, are
necessary to replace codifying texts. Until
different texts have been regularly adopted, the
law of the sea is recorded in the texts in force.
It has also been said that a claim extending
beyond 12 miles is not ipso jure unlawful,
because there have been many claims of this
kind; but by conceding that these claims are also
not ipso jure lawful one admits that acceptance by
others is necessary to make them opposable.
What could a claim which was disputed by all the
States concerned in a given legal situation be, if it
were not unlawful? But since all States fishing in
the Icelandic waters in question are opposed to
the extension, what is the reason for not stating
this and drawing the necessary conclusion?
There is no escaping the fact that if the States
which oppose the extension cannot do so on the
basis of a rule of international law, their
opposition is ineffective, and this must be said;
but if they can base their opposition on such a
rule, it is equally necessary not to hesitate to say
that. It is [p 136] the accumulation and the
constancy of the opposition which should have
obliged the Court to make a general
pronouncement in the present case.
This was in fact the purpose of the first
submission of the United Kingdom, which is not
answered in the Judgment; furthermore the Agent
said in the course of his argument that it was
understood and accepted "that submissions (b)
and (c) are based on general international law and
are of course not confined merely to the effect of
the Exchange of Notes". The Court has decided
entirely otherwise. As a result of its refusal to
give judgment on the conformity of the 50-mile
extension with general international law, the
Court has had to treat the 1961 agreement as the
sole ground of non-opposability of that extension
to the United Kingdom, interpreting that
agreement as a recognition by Iceland that the
Court has jurisdiction for any dispute concerning
any measure relating in any way to fisheries.
16. Going beyond the events of 1961, it should be
added that analysis of Iceland's position on the
fisheries problem for the last quarter-century and
more leads to the conclusion that that State has
unremittingly advanced, and secured recognition
of, the view that claims as to the extent of the
fishery zone were entirely distinct from problems
of conservation. Thus under the North-West
Atlantic Fisheries Convention of 8 February 1949
(Art. I, para. 2), and then under the North-East
Atlantic Fisheries Convention of 24 January
1959, Iceland was to be one of the parties which
attached the greatest importance to the formal
reservation that those conventions did not affect
the rights, claims, or views of any contracting
State in regard to the extent of jurisdiction over
fisheries.
The constant element in the policy of Iceland
appears to me to be the distinction between limits
of an exclusive fishery zone, and a claim to
preferential rights beyond that zone. These are
two clearly different problems; by asserting, by
means of its Regulations of 14 July 1972,
exclusive fisheries jurisdiction up to a 50-mile
limit Iceland took up its position in the field of its
claims as to the extent of its exclusive fishing
zone, as the two parties to the 1961 agreement
had foreseen; this was the legal point which the
Court was to decide.
***
17. Subparagraph 3 of the operative clause of the
Judgment contains a decision that there is an
obligation to negotiate between Iceland and the
United Kingdom "for the equitable solution of
their differences concerning their respective
fishery rights . ..", and subparagraph 4 indicates
various considerations as guidelines for such
negotiations. I consider that the role of the Court
does not permit of it giving a pronouncement on
these two points, and that by doing so, the Court
Page 88 of 112
has exceeded the bounds of its jurisdiction. [p
137]
18. Subparagraph 3 refers to differences
concerning the "respective" fishery rights of the
two States. There are of course differences, since
Iceland is claiming to exclude the United
Kingdom finally from the area up to 50 miles, but
this claim is made erga omnes, and it is
somewhat unreal to treat as a bilateral problem,
capable of being bilaterally resolved, the effects
of the Icelandic Regulations of 14 July 1972
asserting exclusive jurisdiction over the
superjacent waters of the continental shelf, after
having declined to reply to the question raised as
to the unlawfulness of such Regulations in
international law. Although in subparagraph 4
there are formal safeguards for the position of the
other States, the Court has regarded it as possible,
to isolate, as it were, the bilateral differences and
settle them by the Judgment. This is the first
point that I should deal with before turning to the
substance of subparagraphs 3 and 4 of the
operative clause of the Judgment.
19. The origin of these subparagraphs 3 and 4 of
the operative clause is in the last part of the
United Kingdom's submissions (final submission
(d)) which gave the dispute a wider dimension
than the sole question of the lawfulness of the
unilateral extension of jurisdiction, and on the
basis of that submission problems of conservation
have been extensively discussed in argument. But
the bounds of a judgment are not fixed by a party
in its Application, nor in its final submissions,
nor, a fortiori, in its argument, when the
jurisdiction being exercised is one specially laid
down by a treaty, with a view to bringing before
the Court a precise question of law. Particularly
when the other Party is absent from the
proceedings, the Court cannot simultaneously
decline to reply to the joint request for a
declaratory judgment which was indisputably
made in the 1961 agreement, and decide what the
conditions shall be of negotia-tions over
conservation as to which no-one but the
Applicant has ever asked its opinion, since it
should be remembered that according to Iceland
there are 11 States regularly fishing in the waters
around Iceland (cf. Fisheries Jurisdiction in
Iceland, Reykjavik, February 1972, table 1, p.
14). As for the United Kingdom, its counsel, in
reply to a question on 29 March 1974, stated that
in the United Kingdom's pleadings, the only
States which were regarded as interested or
affected or concerned by the question of fisheries
around Iceland were those which have in the past
fished in that area, that is to say, apart from the
United Kingdom and Iceland, the Federal
Republic of Germany, the Faroes, Belgium and
Norway. Thus questions also arose as to the
nature of the interest in the fisheries of the
geographical area in question, which the
Judgment neither takes into account nor resolves.
20. It is now some considerable time ago that
attention was drawn to the difficulties which
result from submissions being drafted both as a
restatement of the arguments in support of the
claim and as the final definition of what the Court
is asked to decide (cf. "Quelques mots sur les
'conclusions' en procedure internationale", J.
Basdevant, Melanges Tomaso Perassi, p. 175).
The present case affords a fresh example of this.
The Court, which is the sole judge of its
jurisdiction, must therefore sort [p 138] out what
in the submissions is a statement of arguments
and what is the precise statement of the claim; the
claim cannot go beyond the subject of the
jurisdiction conferred upon the Court, and that
jurisdiction was limited to a declaratory decision
as to the conformity of Iceland's unilateral
extension of jurisdiction from 12 to 50 miles with
existing international law on 1 September 1972,
the date on which the Icelandic Regulations were
brought into force.
21. If one reads the second submission in the
United Kingdom's Application it is apparent that
the second part thereof was so drafted that it
could not constitute a claim, but merely an
argument in support of the first part of that
submission, by which the Court was asked to
declare that questions of conservation cannot be
regulated by a unilateral extension of limits to 50
miles, as a sort of consequence of the declaration
asked for as to the non-conformity of the
Icelandic regulations with general international
law, in the first submission of the United
Kingdom. The submission continues with the
following:
"[questions of conservation] are matters that may
be regulated, as between Iceland and the United
Kingdom, by arrangements agreed between those
two countries, whether or not together with other
Page 89 of 112
interested countries and whether in the form of
arrangements reached in accordance with the
North-East Atlantic Fisheries Convention of 24
January, 1959, or in the form of arrangements for
collaboration in accordance with the Resolution
on Special Situations relating to Coastal Fisheries
of 26 April, 1958, or otherwise in the form of
arrangements agreed between them that give
effect to the continuing rights and interests of
both of them in the fisheries of the waters in
question" (Application, para. 21; emphasis
added).
A further version of this submission was given in
the Memorial on the merits (reproduced in para.
11 of the Judgment) where the obligation to
negotiate appears formally expressed, and was to
be maintained as a final submission. The Court
would have exhausted its jurisdiction by saying,
in reply to the first part of the submission, that
questions of conservation cannot be regulated by
a unilateral extension of limits to 50 miles and a
claim by Iceland to exclusive jurisdiction in that
zone.
How could such a general question of law as
conservation involving at least 11 fishing States
be judicially settled "between Iceland and the
United Kingdom . . . whether or not together with
other interested countries"? While it was possible
in 1961 for Iceland and the United Kingdom to
agree on an assurance against any fresh extension
of jurisdiction, the effect of which would be
suspended as between those two States by
recourse to the Court, it is not reasonable to
imagine that a system of conservation of marine
resources concerning 11 States could be worked
out by two of them. The importance of the United
Kingdom's interest in the fisheries around Iceland
is recognized. But the question put to the Court is
not the equitable sharing of the resources of these
fisheries, a suggestion analagous to that which
the Court rejected in its [p 139] Judgment with
regard to the delimitation of the continental shelf
of the North Sea (I.C.J. Reports 1969, p. 13, para.
2, and pp. 21 to 23, paras. 18 to 20), from which
Judgment I would adopt the expression that in the
present case, there is nothing "undivided to share
out" between the United Kingdom and Iceland.
The idea of the "respective" fishing rights is not a
correct description of the position in fact and in
law. The legal status of the fisheries between 12
and 50 miles from Iceland can only be an
objective status, which takes account of the
interests of all States fishing in those waters.
Further, the problems of "fishing rights" in the
waters around Iceland have been under study for
a considerable time with the States concerned,
and Iceland has recognized the need to resolve
those problems with such States, as has also the
United Kingdom.
22. On 22 July 1972—at the height of the Iceland
fishery crisis and one week after the
promulgation of the Icelandic Regulations of 14
July 1972 which constitute the act impugned in
the United Kingdom Application—there was
signed in Brussels an agreement between the
European Economic Community and Iceland in
order to "consolidate and to extend . . . the
economic relations existing between the
Community and Iceland". The first article relates
that "the aim is to foster in the Community and in
Iceland the advance of economic activity [and]
the improvement of living and employment
conditions". The agreement applies to fish
products (Art. 2), to which a Protocol No. 6 is
specially devoted; Article 2 of that Protocol
provides:
"The Community reserves the right not to apply
the provisions of this Protocol if a solution
satisfactory to the Member States of the
Community and to Iceland has not been found for
the economic problems arising from the measures
adopted by Iceland concerning fishing rights."
(Emphasis added.)
In application of this Article 2 of Protocol No. 6,
and at the request or with the approval of member
States of the Community (including the United
Kingdom and the Federal Republic of Germany),
although the agreement with Iceland had come
into force on 1 April 1973, the imple-mentation
of the Protocol on Icelandic fish products has
already been postponed five times, the last time
on 1 April 1974. To prevent Iceland from
benefiting from a customs arrangement granted it
by a treaty because there is an unsettled dispute
over "fishing rights" is, to say the least, to declare
oneself concerned or affected by that dispute.
Thus the European Economic Community has
five times declared its direct interest in coming to
a settlement regarding fishing rights in the waters
round Iceland by refusing to grant Iceland the
implementation of the special tariff provisions
Page 90 of 112
laid down in the agreement of 22 July 1972. This
agreement is moreover mentioned in the White
Book on the fishing dispute published by the
British Government in June 1973 (Cmnd. 5341):
the reference occurs in paragraph 22,
immediately following a paragraph on Anglo-
German co-operation, and we read: [p 140]
"It will be for the Community to declare when a
satisfactory solution to the fisheries dispute has
been achieved and, consequently, when to decide
that the terms of the Protocol should take effect."
23. The common interest evinced by the member
States of the European Economic Community,
and the terms of Article 2, paragraph 1, of the
above-cited Protocol No. 6, alike show that these
States are not indifferent to the elaboration of a
regime for fisheries in the waters round Iceland.
For its part, Iceland, by accepting the agreement
and Protocol No. 6, has recognized the interest of
the European Economic Community in the
settlement of the question of fishing rights. Thus
the memorandum explaining the grounds of the
first proposal to postpone implementation of
Protocol No. 6, submitted by the Commission to
the Council on 20 March 1973, refers to the
"economic problems arising from the measures
adopted by Iceland concerning fishing rights" for
the member States of the Community. This
position of Iceland vis-a-vis the EEC may
usefully be compared with that of Norway in its
agreement of 14 May 1973 with the EEC, which
came into force on 1 July 1973: the concessions
granted therein by the EEC will only be valid
provided Norway respects "fair conditions of
competition"; on 16 April 1973, the date when
the agreement was initialled, the Commission
indicated that all the tariff-reductions granted on
certain fish products of Norwegian origin had
been agreed to subject to the continued
observance of the existing conditions of overall
competition in the fishing sector, which covers
the eventuality of any unilateral extension of the
fishery zone.
As is well known, the member States of the
European Community constitute a majority in the
North-East Atlantic Fisheries Commission; what
is more, an observer of the Community as such
takes part in its work, as is also the case of the
North-West Atlantic Fisheries Commission. The
catch-quotas of the participant Community
members could, according to a proposal made by
the Commission of the Communities to the
Council, be negotiated and administered on a
Community basis.
24. Now an agreement whereby Iceland formally
accepts that treaty provisions of undoubted
economic importance for that country should be
suspended for so long as the problem of the
economic difficulties arising out of the measures
it has taken in respect of fishing rights remains
unresolved would appear to constitute a
recognition by Iceland and the EEC of an
obligation to negotiate. The negotiations concern
the economic consequences of Iceland's claim to
exclusive fisheries jurisdiction, and the context of
the negotiations is no longer, directly, fishing
rights; but what the EEC understood in an
analogous situation has been seen in the instance
of Norway, and the distinction should not be
over-nicely drawn. The question of fishing rights
is necessarily affected by any decision regarding
the economic consequences, whatever solution is
reached for dealing with the economic
consequences and whatever the chosen method;
but the debate is one of wider scope, and extends
to [p 141] general economic relations between all
the countries concerned. While the Court, in
subparagraph 4 of the operative part of the
Judgment, has not sought to define more than the
conservation aspect of fishing rights in the
prescriptions directed to the United Kingdom and
Iceland, the working-documents of the
Community accurately convey an all-round
picture of the various aspects of the problem of
fishing in the waters round Iceland. One more
example: a Danish memorandum on fishing
submitted to the Council on 20 March 1973
recommends, after reviewing the problem of
regions almost wholly dependent on fishing
(Greenland, the Faroes), special measures of both
a structural and a regional nature.
By finding, in the Judgment, that there is a
bilateral obligation to negotiate concerning
"respective" rights of a bilateral character, when
Iceland has accepted a multilateral obligation to
negotiate on much wider bases in institutions and
international bodies which do not come within
the purview of the Court's jurisdiction, the Court
has formulated an obligation which is devoid of
all useful application.
Page 91 of 112
25. The necessity of dealing with the problem of
fisheries in the waters round Iceland
comprehensively and with those States
particularly interested is also accentuated by the
fact that certain States have concluded
agreements of an interim character with Iceland,
as the United Kingdom did on 13 November
1973, in order to mitigate the difficulties caused
them by the application of the Icelandic
Regulations of 14 July 1972. The first
negotiations were conducted with the local
government of the Faroe Islands and enabled
fishermen from these islands to fish within the
50-mile limit (Reykjavik agreements of 15-16
August on bottom-line and handline fishing and
of 19 September 1972 on trawl fishing). A
Danish Note verbale of 23 August 1972 states
that "questions concerning fishing in the North
Atlantic should ... be settled in an international
context" and expresses the hope that negotiations
"with the Parties whose interests are threatened
by the new Icelandic regulations may be resumed
as quickly as possible" (cited in Revue generale
de droit international public, 1974, pp. 343
f.).FN1
------------------------------------------------------------
---------------------------------------------------------
FN1 Quotations translated from French by the
Registry.
------------------------------------------------------------
---------------------------------------------------------
Belgium, on 7 September 1972, concluded with
Iceland an agreement which was renewed for 18
months in March 1974; Article 1 reserves the
position of the parties on the extent of fisheries
jurisdiction, but when the text was transmitted to
the Council of the European Communities, the
following indication was given: "the Belgian
Government considers that, so far as Belgium is
concerned, this agreement constitutes a
satisfactory, albeit temporary solution within the
meaning of Article 2 of Protocol No. 6 to the
EEC-Icelandic Agreement of 22 July 1972".
Another agree-ment was concluded with Norway
on 10 July 1973. These agreements, even when
they reserve the legal position of each of the
States vis-à-vis Iceland, necessarily take account
of the 1972 Regulations which are the source of
the dispute, and Iceland doubtless views them as
provisional accommodations of very limited
duration which have been made pending [p 142]
the general acceptance of its claim. (The
agreement of 19 September 1972 concluded with
the Faroes is subject to denunciation by Iceland at
any time, while it may denounce that of 15-16
August at six months' notice.) Hence all one may
deduce therefrom is an affirmation of the interest
of those States in reaching an objective solution
of the problem. These agreements, added to the
treaty with the EEC which one of them mentions,
give concrete support to the dual conclusion that
there exists a group of specially interested States
concerning which the Court has no means of
knowing what intentions they may have of
negotiating with a view to establishing an
objective fisheries regime, and that it has no
jurisdiction to lay down the law to them, not even
by way of directions for negotiation. The failure
of all these bilateral negotiations to arrive at
anything other than phasing-out agreements
which leave the substantive problem aside shows
that the situation will be resolved solely by a
multilateral agreement corresponding to the
objective character of the regime desired.
26. It was not a series of accidents which caused
these problems to be considered successively
under the auspices of the OEEC (in 1956, in
order to put an end to the difficulties of landing
Icelandic fish catches in British ports) and of
NATO (informal talks in 1958 between
representatives of Iceland, the United Kingdom,
the Federal Republic of Germany and France),
before being raised in the framework of the
European Economic Community and the treaty of
1972, but the recognition of the objective
character of the regime of these fisheries.
If a bilateral agreement with Iceland was possible
in 1961, that was because the essential content of
that agreement consisted of the United Kingdom's
recognition of the 12-mile limit; but in the last
portion of the operative part of its Judgment the
Court passes upon a question regarding a
fisheries regime for the conservation of resources,
and there is nothing bilateral about that. Iceland
pointed this out in clear terms to the United
Kingdom during the London conversations of 3
and 4 November 1971 (United Kingdom
Memorial on the merits, para. 23) before enacting
its 1972 Regulations: Iceland's purpose was to
protect its fishing industry against massive
competition by "super-trawlers" from Spain,
Portugal, Poland, the USSR and Japan and to
Page 92 of 112
facilitate the planned expansion of Iceland's own
fishing industry (it will be noted that Iceland here
adds three States, to the eleven listed in paragraph
19 above, but, in any event, the circle of States
concerned is not unlimited even if such variations
are to be found; it is thus wholly irrelevant to
look into the claims of States which are equally
far removed from the Iceland fishery area and
Iceland's preoccupations). Iceland has wider aims
than conservation. A review of Iceland's
economic problems seen in relation to an
extension of fisheries jurisdiction is to be found
in the already-quoted OECD report of 1972 (in
particular, pp. 32-39). As the Court did not touch
upon this aspect of the situation, I will simply say
that any tribunal that wished to study the regime
of Iceland's fisheries would have found it
indispensable to consider these problems; it is not
sufficient to say in general [p 143] terms that
Iceland is dependent on its coastal fisheries "for
its livelihood and economic development" if no
attempt is made to grasp the economic realities
underlying the phrase. Indeed, for want of all
research on the point, the Court's pronouncement
constitutes simply an abstract reply to an abstract
question. Even from the standpoint adopted by
the Court, whereby a problem of objective regime
may purportedly be resolved by means of
bilateral negotiations, the question should have
been placed within its true dimensions, these
being of wider scope than conservation
procedure, which, in the unique case of Iceland,
is probably not the only factor capable of
reconciling the legitimate interests that stand
confronted (cf. para. 31 below).
27. The obligation to negotiate in the present case
does not originate in a kind of general
undertaking drawn from Article 33 of the Charter,
which is above all a list of means of settlement;
this theory makes of the obligation to negotiate a
universal but an uncertain remedy, since when
negotiations take place without a specific
objective the Parties necessarily remain free to
appraise their desirability and the necessity of
their success. There is only one obligation laid
down in Article 33, that of seeking a solution to
any dispute likely to endanger peace and security,
and parties are left entirely free to adopt the
"peaceful means of their own choice". There is
nothing to authorize selecting one of those
means, negotiation, and turning it into a legal
obligation, when all the other methods remain
open. The danger in this new construction is that
it may have the result of imposing upon States
which are before the Court in relation to a
specific dispute, in the form of directions for
negotiations occasioned by that dispute—but not
on the dispute itself—, rules of conduct which a
mediator or conciliation commission might
propose, though without compulsory effect. Thus
it is as if, in creating the idea of an obligation to
negotiate on account of Article 33, it were desired
to lend one of the means greater effect than the
others. This interpretation would enable the
Court, in any grave dispute, to transform itself
into an arbitrator, conciliator or mediator, as the
case might be, and that is what it has done in the
present instance. Article 33 of the Charter does
not permit this evolution in the role of the Court,
which is contrary both to the Charter and to the
Court's own Statute. In paragraph 100 of its 1969
Judgment the Court said that one must not "over-
systematize" (I.C.J. Reports 1969, p. 54).
The source of the obligation to negotiate in this
case is the legal nature of the fisheries regime
which is the subject of the dispute, and that can
only be actualized by means of negotiation
among all the States concerned; it is there, solely,
that the Court could have found the answer to the
question it had chosen to ask itself and
discovered that it could not incorporate it into its
decision but at most give it a place in the
reasoning of the judgment.
28. To conclude my observations on
subparagraphs 3 and 4 of the operative part: by
virtue of the interpretation placed on the 1961
agreement and the negotiations that enabled it to
be concluded (see in parti-[p 144]cular paras. 25
and 47 of the Judgment) the Court considers that
Iceland has agreed to the inclusion of problems of
conservation (zones and methods), preferential
rights and historic rights within the categories of
dispute which it might find the Court
adjudicating. I have already indicated that it
appeared to me to be an unwavering constant of
Icelandic policy always to distinguish problems
of conservation and preferential rights from the
problem of the extension of fisheries jurisdiction
(para. 16 above) and that the 1961 agreement was
one of the proofs of this. If this position had
shifted in 1961, why is there nothing in the
records to reveal as much? Yet what would have
been the concession in point?—the recognition
Page 93 of 112
that, in relation to any extension beyond the 12-
mile limit of the exclusive fishery zone, any
problems of conservation or preferential and
historic rights might also be referred to
adjudication as elements of a dispute over the
extension of the zone. I must say that I find this
improbable in the absence of any formal
admission on the part of Iceland and considering
its constant attitude of opposition to all confusion
of problems concerning the breadth of the
exclusive fishery zone with problems of the
fishery regime beyond that zone.
***
29. One further point remains to be examined:
what is the effect of this last part of the operative
clause of the Judgment? The interim agreement
of 13 November 1973 is a treaty which the Court
is obviously powerless to modify; and it applies
as an interim agreement until 13 November 1975
"pending a settlement of the substantive dispute
and without prejudice to the legal position or
rights of either Government on the question" (this
is from the first sentence of the agreement). In
1972 the Parties conducted unsuccessful
negotiations directed to the conclusion of an
interim agreement for the duration of the
proceedings before the Court; the agreement of
November 1973 is different: it guarantees the
United Kingdom a certain provisional position
for two years in any event, while expressly
reserving the question of settlement of the
dispute. It is clearly contrary to the first
paragraph of the agreement, cited above, and
contrary to all the probabilities, to say that by
using this expression Iceland agreed that a
decision of the Court on the merits could settle
the dispute. The legal position of Iceland is in fact
recognized by the agreement, and it is reserved—
thus left outside the agreement. If Iceland had
tacitly accepted that the Court should be
empowered to settle the dispute on the merits,
which it has always refused to do, it would thus
have recognized the jurisdiction of the Court.
That amounts to saying that it would have
granted what in its eyes was a favourable position
to the United Kingdom for two years, and in
addition recognized that the Court would give
judgment on the merits of a dispute as to which
Article 7 of the agreement indicates that the
Parties are aware that it will no doubt be still in
existence in November 1975: "Its termination
[that of the agree-[p 145]ment] will not affect the
legal position of either Government with respect
to the substantive dispute." Comparison of this
Article 7 with the first paragraph seems to me to
leave no room for doubt. Furthermore, the history
of Article 7 was already available in a British
document (White Book, Ann. A, Doc. 9) which
reproduces the counter-proposals for an interim
agreement made by the United Kingdom on 3-4
May 1973 in the course of talks in Reykjavik.
The Icelandic ministers had asked that at these
talks the question should be examined whether, if
an interim arrangement were agreed, the
proceedings before the Court could be suspended
(White Book, Ann. A, Doc. 6 (f), p. 16). The
draft counter-proposal of the United Kingdom
shows how the negotiations went on this point
(White Book, Ann. A, doc. 9, para. 6) and my
colleague, Judge Petren, has demonstrated in his
dissenting opinion that Iceland refused to accept a
form of words for Article 7 which would have
provided for an obligation to negotiate with the
United Kingdom on the merits before Novembei
1975; that obligation having been formally
excluded, it is impossible to go against the clear
text of the treaty and impose it. The 1973
agreement, which maintains the legal position of
the Parties as they stand at present and as they
may be in November 1975, therefore prevents the
bilateral obligation to negotiate pronounced by
the Court from having any effect. The two
Governments could of course decide to negotiate
tomorrow, if they so wish, but there is nothing to
oblige them to do so, and the 1973 agreement
recognizes this.
This is not all. The general considerations in
subparagraph 4 of the operative clause of the
Judgment, being intended for bilateral Anglo-
Icelandic negotiations, are in danger of being
overtaken by events by November 1975. If it is
suggested that before November 1975 the United
Kingdom could come back to the Court, in one
way or another, I should explain briefly that it
seems to me that the position is otherwise.
30. The Judgment (subpara. 4 of the operative
clause) is not applicable until 1975, since the
interim settlement for British fishing was reached
with the reservation of any settlement on the
merits. This again confirms the abstract, not to
say illusory, aspect of this final part of the
operative clause. It also follows from this that any
Page 94 of 112
change in international law in this field will
render the Judgment obsolete.
Paragraph 76 of the Judgment states that the
agreement of November 1973 does not relieve the
Parties from their obligation to negotiate; even if
such a bilateral obligation existed, which has here
been contested, the 1973 agreement broke new
ground, where modification is not possible, as
defined in the following way by the Prime
Minister of the United Kingdom in the House of
Commons:
"Our position at the World Court remains exactly
as it is, and the agreement is without prejudice to
the case of either country in this matter. This is an
interim agreement covering two years from the
moment of signature this afternoon, in the
expectation that the Conference on the Law of the
Sea will be able to reach firm conclu-[p
146]sions. We all know the difficulties facing a
conference on the law of the sea, but both
Governments hope that it will have been possible
by the expiration of this agreement to reach
agreement on the law of the sea and that that will
then govern the situation." (Hansard, Commons,
13 November 1973, column 252; emphasis
added.)
If the British Government recognizes that the
agreement is without prejudice to the legal
position of the Icelandic Government, and is not
contemplating any possibility prior to the
expiration of the agreement other than general
agreement on the law of the sea in connection
with the proceedings of the Third Conference on
the Law of the Sea, it definitely appears that the
two Governments considered that the 1973
agreement "relieved" them from bilateral
negotiation for so long as no general agreement
has been reached in the general framework of the
proceedings in progress. These statements would
also appear to exclude the hypothesis of any
return to the Court prior to the termination of the
agreement of November 1973, to seek judgment
on the substantive dispute, which is agreed to be
reserved.
31. Since a dissenting or separate opinion should
be kept within limits, I will not deal with other
points on which I also disagree with the
Judgment,—with the exception of one of these.
The invocation of the Judgment in the North Sea
Continental Shelf cases to support the present
decision, with regard to the recognition of a
bilateral obligation to negotiate and the reference
to equity in paragraphs 75 and 78 of the
Judgment and in the final part of the operative
clause, is unjustified. The present legal position is
quite distinct, since it was the special agreements
which had decided that the task of actually fixing
the boundaries should be reserved to the Parties,
who undertook to do so "on the basis of, and in
accordance with, the principles and rules of
international law found by the Court to be
applicable" (I.C.J. Reports 1969, p. 13, para. 2 of
the Judgment). Thus in 1969 the Court did
exactly the opposite of what it has done today,
when instead of giving a judicial statement of the
state of international law on the subject, and
leaving the application thereof to the Parties, the
Judgment disregards the obligation to state the
law, and falls back on an obligation to negotiate
which was not provided for in the 1961
agreement by the two States. Furthermore, in
1969 the delimitation of the continental shelf only
concerned the three States which were Parties
before the Court, and they alone were competent
to effect it. That is not the case here for the
matters which the Court has sought to resolve in
subparagraph 4 of the operative clause: that is,
the bilateral organization of a fishery
conservation regime while there is a multilateral
obligation to negotiate.
Since I also attach particular importance to the
question of equity, I would recall that the Court
on that occasion took the greatest possible
precautions in its drafting specifically in order to
prevent its observations being treated as of
general application. The inequity of the
geographical [p 147] situation was simple, and
was the result of the natural configuration of the
coast; the adjustment involved a single operation,
which was also simple, namely, as just a
modification as possible of the boundary. The
fisheries situation of Iceland is quite unrelated to
this, since it involves interests which are of their
nature extremely diverse; to inject the concept of
equity into a recommendation of negotiations is
not sufficient to make it applicable, because of
the circumstance, which is unique in the world, of
the absolute economic dependence of a State on
fisheries. "Equality is to be reckoned within the
same plane, and it is not such natural inequalities
as these that equity could remedy" (I.C.J. Reports
1969, p. 50, para. 91). To hold the balance
Page 95 of 112
between the economic survival of a people and
the interests of the fishing industry of other States
raises a problem of the balanced economic
development of all, according to economic
criteria, in which fishing is only one of the
elements taken into account, and of which the
bases are international interdependence and
solidarity. The concepts of rate of economic
growth, industrial diversification, vulnerability of
an economy faced with the "caprices" of nature,
population structure and growth, use of energy,
investment needs, development of external
markets for fish products, regularization of such
markets, foreign participation in Icelandic
undertakings, industrial development funds,
among many others, define the economic
interests of Iceland in obtaining a certain
settlement of the fisheries problem. Not merely
have these expressions never been used, but it is
clear that differences of views on these questions
do not give rise to justiciable disputes, since these
are problems of economic interests which are not
the concern of the Court. But the Court cannot
make them disappear by refusing to see anything
but a conservation problem; the balance of facts
and interests is broken.
***
32. In effect the Judgment decides that Iceland
did not have the right to extend its fisheries limits
from 12 to 50 miles on grounds of conservation,
which will be generally conceded, but this is to
choose a ground which is not that of Iceland, after
having avoided deciding that, in the present state
of existing law, the extension to 50 miles is not
opposable to the fishing States, whatever ground
may be relied on for such an extension, including
the interests of Iceland as it has explained them;
but to disregard a line of argument amounts to
rejecting it. Then, sticking to this single theme of
conservation, the Court constructs for the two
parties to a dispute a system of consultation on
conservation problems as if the solution of these
could take the place of the only decision which
was contemplated in 1961, namely that on the
lawfulness of any fresh extension of limits
beyond 12 miles. To respond to a dispute over a
claim to exclusive jurisdiction by giving
guidelines for a conservation agreement is not a
fulfilment of the Court's task; even if the Court
thought that the question raised under the
agreement was too narrow, it is the question
which was [p 148] defined by the parties. An
agreement can never define anything other than
what was subject to negotiation at the appropriate
time between the parties who concluded it; as the
Court has said: "no party can impose its terms on
the other party" (I.C.J. Reports 1950, p. 139). Nor
can a court impose its interpretation of an
agreement on the States which concluded it, so as
to make it say something more than, or something
different from, what it says. Here again the Court
has already spoken:
". . . though it is certain that the Parties, being
free to dispose of their rights, might . . . embody
in their agreement any provisions they might
devise . . ., it in no way follows that the Court
enjoys the same freedom; as this freedom, being
contrary to the proper func-tions of the Court,
could in any case only be enjoyed by it if such
freedom resulted from a clear and explicit
provision ..." (Free Zones of Upper Savoy and the
District of Gex, Order of 6 December 1930,
P.C.I.J., Series A, No. 24, p. 11).
33. By centring its decision around problems of
conservation which are not the subject of the
dispute which arose in 1972 as a result of
Iceland's extension of its fisheries jurisdiction
from 12 to 50 miles, the Court has raised an
abstract question to which it has given, in the last
part of the operative clause of the Judgment, an
abstract reply. In contentious cases, the Court is
bound by what it is asked to adjudge; when it
applies Article 53 of the Statute, the rule is still
stricter, since the Court must satisfy itself that it
is not going further or in a direction other than
what was agreed to by the State which is absent
from the proceedings, in the instrument which
established the competence of the tribunal. Thus
the Court observed in the Ambatielos case that:
"in the absence of a clear agreement between the
Parties ... the Court has no jurisdiction to go into
all the merits of the present case" (I.C.J. Reports
1952, p. 39); the least that can be said is that the
problems of conservation were not the subject of
such discussion in 1960 between the United
Kingdom and Iceland, and that it is difficult to
see by what unequivocal agreement it could have
become a dispute in itself under the Exchange of
Notes of 1961.
34. The Court has not fulfilled its mission in the
present case, since is has not decided the legal
Page 96 of 112
question which the Parties to the 1961 agreement
had envisaged laying before it, for purposes
which they were free to decide upon, and since it
has dealt with the problem of the conservation of
Icelandic fisheries as being the substance of the
dispute. Such a judgment cannot therefore be
effective for the settlement of the real substantive
dispute, even if there were an intention to achieve
this, as appears from paragraph 48 and from
certain covert allusions in the text.
The real task of the Court is still to "decide in
accordance with international law such disputes
as are submitted to it" (Art. 38 of the Statute). To
introduce into international relations an idea that
the decisions of the Court may be given
according to what on each occasion the majority
thought to be both just and convenient, would be
to effect a profound transformation. It will be
sufficient to quote the Court itself: [p 149]
"Having thus defined . . . the legal relations
between the Parties. . ., the Court has completed
its task. It is unable to give any practical advice
as to the various courses which might be
followed with a view to terminating the asylum,
since, by doing so, it would depart from its
judicial function. But it can be assumed that the
Parties, now that their mutual legal relations have
been made clear, will be able to find a practical . .
. solution . . ." (I.C.J. Reports 1951, p. 83.)
That this new concept must be rejected as in
contradiction with the role of an international
tribunal appears to me to be clear, simply from
the observation that an international court is not a
federal tribunal; the States—of which there are
now not many—which come before the Court do
not do so to receive advice, but to obtain judicial
confirmation of the treaty commitments which
they have entered into, according to established
international law, in relation to a situation with
which they are well acquainted. The Court saw
all this in the Judgment in the Fisheries case, in
which the special nature of the situation was the
dominant feature in the decision (I.C.J. Reports
1951, Judgment of 18 December 1951); by
seeking to effect, under cover of a case limited to
Icelandic fisheries, a pronouncement of universal
effect, the Court contradicts its whole previous
attitude. As long ago as 1963, Charles De
Visscher wrote in his commentary on judicial
interpretation:

"The function of interpretation is not to perfect a
legal instrument with a view to adapting it more
or less precisely to what one may be tempted to
envisage as the full realisation of an objective
which was logically postulated, but to shed light
on what was in fact the will of the Parties."
There could be no better response to the
philosophy which inspires the Judgment and the
postulates it contains (particularly paras. 44-48).
(Signed) Andre Gros. [p 150]
DISSENTING OPINION OF JUDGE PETREN
[ Translation ]
To my regret, I have felt obliged to vote against
the Judgment and to append this dissenting
opinion.
The main reason why I felt unable to vote for the
Judgment lay in the broad construction placed by
the Court on the agreement concluded between
the Parties by their 1961 Exchange of Notes,
which constitutes the sole basis of the Court's
jurisdiction to deal with the present case. In that
respect I, like my colleague Judge Ignacio-Pinto,
share the view expressed by our colleagues
Judges Gros and Onyeama in their dissenting
opinions, to which I may therefore refer the
reader. I need here say no more than that the only
question upon which the 1961 agreement entitles
the Court to adjudicate is whether a measure
whereby Iceland extends its zone of exclusive
fisheries jurisdiction beyond a distance of 12
nautical miles from the baselines of its territorial
waters is well founded in international law.
Certain passages of the Judgment appear to
partake of the notion that the disputed extension
by Iceland of its fishery zone from the 12-mile to
the 50-mile limit is without foundation in
international law. Thus paragraph 53 of the
Judgment, after alluding to the contemporary
tendencies of a number of States to extend their
fishery zones beyond the 12-mile limit, concludes
by observing that "the Court, as a court of law,
cannot render judgment sub specie legis ferendae,
or anticipate the law before the legislator has laid
it down". Paragraph 67 reflects the same attitude
even more clearly, for it states that "Iceland's
unilateral action . . . constitutes an infringement
Page 97 of 112
of the principle enshrined in Article 2 of the 1958
Geneva Convention on the High Seas", and that
presupposes that the waters lying between the 12-
mile and the 50-mile limit do not form part of
Iceland's fishery zone. This notwithstanding, the
operative paragraph of the Judgment confines
itself in subparagraph 1 to finding that the
Regulations on fishery limits promulgated by the
Government of Iceland are not opposable to the
United Kingdom, and it appears from the
paragraphs immediately preceding the operative
part that this finding is based on considerations
which are wholly different in nature from the
question whether the extension of Iceland's
fishery zone is in conformity with international
law. In the reasoning which leads up to the
operative paragraph of the Judgment the Court
notes the existence, beyond the 12-mile limit, of
historic British fishing rights which debar Iceland
from opposing to the United Kingdom the
extension of its fishery zone. To this the Court
adds that, as a coastal State, Iceland enjoys
preferential rights in the waters adjacent to the
12-mile limit and that the two Parties are under
an obligation to negotiate with a view to striking
a just balance between these two categories of
right. [p 151]
In short, the operative paragraph does not give
any reply to the primordial question raised by the
first submission of the British Government,
namely whether the challenged extension of
Iceland's fishery zone has or has not any
foundation in international law. All that the
British Government is told is that the United
Kingdom possesses historic rights in waters
concerning which the operative part of the
Judgment fails to indicate whether they form part
of Iceland's fishery zone or are adjacent thereto. It
seems to me that the Parties were entitled to
receive clarification on that point, more
especially because, as the Court itself admits in
paragraph 69 of the Judgment, the historic rights
which a non-coastal State may assert within the
fishery zone of a coastal State have an inherently
shorter lifespan than those applying to the
adjacent waters. Furthermore, it is obvious that
one may speak of the preferential rights of the
coastal State only with reference to waters
beyond the fishery zone, an area within which
that State enjoys a jurisdiction that is in principle
exclusive.
The absence of any reply to the question whether
the extension by Iceland of its fishery zone is in
conformity with international law leaves in the
Judgment a void which is all the more
conspicuous for the fact that the problem is raised
by the United Kingdom's very first submission. It
is true that counsel for the United Kingdom was
led, by a question put by a Member of the Court,
to state during the oral proceedings that his
Government's second and third submissions could
stand without the first and that it was in its view
therefore open to the Court to adjudicate upon
them without adjudicating upon the first. But that
does not mean that the first submission was
withdrawn or in any way detract from its
primordial importance in the present case,
considering the position adopted by Iceland in
extending its fishery zone.
Even if the United Kingdom had withdrawn its
first submission during the oral proceedings, that
would not have dispensed the Court from
adjudicating upon the conformity of Iceland's
present extension of its fishery zone with
international law, for Iceland, which has
constantly asserted that this measure is well
founded in international law, has not consented to
the Court's not examining the validity of that
contention. Both Parties were therefore entitled to
expect the Court to make a finding upon it.
While the documentation placed at the Court's
disposal shows that the dispute concerns the
breadth of fishery zone which Iceland is entitled
to claim, there is on the other hand nothing to
indicate any disagreement between the Parties as
to the principles which should govern the
regulation, in the waters adjacent to the fishery
zone and in a framework of agreed conservation
measures, of the relationships between the
preferential rights of Iceland as the coastal State
and the rights of other States whose vessels fish
in the same region. It is by no means certain that
the Court's intervention will be necessary to help
the Parties regulate their fishery relations once
the limit of the fishery zone attributable to
Iceland is fixed. The present difficulties are
caused by the recent extension of the [p 152]
fishery zone and the challenge brought against it
by the United Kingdom.
Furthermore, I consider that the 1961 agreement
between the Parties does not confer jurisdiction
Page 98 of 112
upon the Court to make any pronouncement with
regard to such preferential or historic rights as
may exist within the waters adjacent to the
Icelandic fishery zone. I am therefore unable to
concur in the reasoning expounded by the Court
in paragraphs 65 and 67 of the Judgment,
according to which the agreement concluded
between the Parties in 1961 recognized the
existence of the historic rights of the United
Kingdom, thus conferring a title upon the United
Kingdom and correlative jurisdiction upon the
Court. In paragraph 69 the Court even finds it
possible to treat these rights as being as perennial
as those of Iceland. Yet the substantive
provisions of the 1961 Exchange of Notes do not
contain any reference to recognition of the United
Kingdom's historic rights in the waters adjacent
to the 12-mile fishery zone attributed to Iceland.
Although it is reasonable to suppose, as
paragraph 65 of the Judgment does, that it was
out of regard for British interests that Iceland
undertook to give the United Kingdom six
months' notice of any new measure for the
extension of its fishery limits, it is not in my view
possible to say that recognition of the United
Kingdom's historic rights in the area now in
dispute was covered by the agreement of 1961,
where they are not even mentioned. It is true that
pending its final judgment the Court indicated
interim measures of protection restricting the
British catch in the disputed waters; but that
obviously could not signify that it regarded itself
as competent also to order such measures in its
final judgment. What other type of interim
measures would appear more natural, pending a
judgment fixing the breadth of a fishery zone?
The argument which paragraph 46 of the
Judgment seeks to draw from paragraph 12 of the
Order of 17 August 1972 is in my view based on
a false interpretation of the latter. If the Court had
found that the extension of Iceland's fishery zone
was in itself consistent with prevailing
international law, the question of the treatment
proper to any interests of the United Kingdom
within that zone—whether, for example, they
should be dealt with by means of a period of
adjustment—might have arisen as a related
question calling for an answer from the Court.
But there is no basis in the 1961 agreement for
the Court to broach questions concerning certain
historic rights of the United Kingdom and
measures of conservation without first settling the
question of the limits of Iceland's fishery zone.

By not settling the primordial question submitted
to the Court in the present case, the Judgment
also sidesteps the question whether the 1961
agreement prohibits Iceland from implementing a
measure extending its fishery zone without
waiting for the Court's judgment, once the United
Kingdom has referred the matter to the Court. If
Iceland is so prohibited, the enforcement of a
measure extending its fishery zone might
constitute a breach of the obligation to wait for
the Court's pronouncement, without the measure
in itself being contrary to the law of the sea. In
such event, would the measure still be non-
opposable to the United Kingdom? The content
of the British record of the negotiations which led
up to the 1961 [p 153] agreement seems to me
rather to indicate that the only guarantee the
agreement offers the United Kingdom against the
immediate application of a further extension of
the Icelandic fishery zone is the six months'
notice. This is evidently designed to enable the
United Kingdom to seise the Court in time for it
to indicate interim measures of protection before
the date fixed for the entry into force of the
disputed extension. Thus the immediate
protection of the interests of the United Kingdom
would depend on the Court's appraisal of the
situation and the effect, binding or otherwise, to
be attributed to the interim measures.
For years Iceland has been pursuing a consistent
policy aiming at the gradual extension of its
fishery zone. This policy is in tune with the
similar trends, referred to in paragraph 53 of the
Judgment, which have been emerging in many
parts of the world in recent years and whose
importance at the present time is clear from the
preparatory documents of the Third Conference
on the Law of the Sea, as also from the
statements which have already been made at the
Conference itself by numerous governments.
Iceland considered that it could rely upon the
rising trend of customary law towards the
recognition of extended fishery zones. Whether
Iceland was or was not mistaken in this, the
question remains whether, by enforcing the
extension of its fishery zone vis-à-vis the United
Kingdom without waiting for the Court to give
judgment, it was guilty of an infringement of the
1961 agreement which was sufficient in itself to
render the measure extending the fishery zone
non-opposable to the United Kingdom. To
Page 99 of 112
answer this question in the affirmative could have
the result of preventing Iceland, through long
years of judicial proceedings, from benefiting like
other coastal States from an evolution in its
favour of customary law. The present case itself
would afford an example of this, if Iceland
eventually proved to be legally entitled to extend
its fishery zone.
The question of the prolongation of the effects of
the jurisdictional clause of the 1961 agreement
has, however, several aspects. One might for
example enquire whether that clause, which was
framed with the next, already foreseen stage of
the extension of Iceland's fishery zone in view,
was meant to restrict the Icelandic Government's
freedom of action for so long as the 1961
agreement remained in force and thus to open the
door to repeated applications to the Court. The
circumstances in which the agreement was
concluded do not appear to me to indicate that
such was the intention of the Icelandic
Government. Even from the standpoint of the
present Judgment, the problem of the duration of
the effects of the jurisdictional clause of the 1961
agreement is not absent. It arises, in particular, in
connection with the negotiations which the
Parties, the Judgment stipulates, have an
obligation to undertake; for in my view the
Parties are entitled to know whether the Court
would consider itself competent to continue to
deal with their dispute in the event that the
negotiations did not take place or were
unsuccessful. What, for example, will be the
situation if the dispute is not settled before the
expiry of the interim agreement between the
Parties (13 November 1975)? Would the [p 154]
present Judgment then have the effect of
prohibiting Iceland from proceeding, without
waiting for a new judgment of the Court, and
with effect vis-à-vis the United Kingdom, to the
extension of limits to which it might be entitled
on account of the evolution of international law?
It appears to me that the question whether the
Court could again exercise jurisdiction if the
negotiations which should take place by virtue of
the Judgment came to nothing can be answered
by analysing the interpretation of the 1961
agreement on which the Judgment is based.
Without settling the question whether the recent
extension by Iceland of its fishery zone is in
conformity with international law, the Court finds
that it is not opposable to the United Kingdom on
account of the latter's historic rights, and that it is
necessary to establish, within a framework of
agreed measures of conservation, a regime
wherein these historic rights will be balanced
against the preferential rights of Iceland as the
coastal State. The Court therefore considers itself
competent to pronounce upon questions of
preferential and historic rights and measures of
conservation in the disputed waters independently
of any consideration of the basis, if any, in
international law of an extension of Iceland's
fishery zone. At the same time the Court creates
an obligation upon the Parties to undertake
negotiations on these points while taking into
consideration a series of recommendations
enunciated in the Judgment. Yet these are matters
which, if they concern waters outside the fishery
zones of coastal States, require by their very
nature to be regulated on a multilateral basis with
the participation of all those States whose
interests are at stake. There are international
instruments which provide procedures to that end
without envisaging reference to the Court. So far
as the North-East Atlantic is concerned, the
Federal Republic of Germany is the only State,
apart from the United Kingdom, to have
expressed any desire that the Court should deal
with such questions, but the Court, by deciding
not to join the parallel cases instituted by these
two States, deprived itself of the possibility of
prescribing joint negotiations between them and
Iceland.
In its Judgment of 2 February 1973 the Court
found that the 1961 agreement was still in force.
Iceland will doubtless be inclined to maintain the
extension of its fishery zone, since the Court has
declared it unlawful only vis-à-vis the United
Kingdom and—by its Judgment in the other
case—the Federal Republic of Germany. Hence
the possibility must be foreseen of further
disputes between the Parties over the exercise of
their rights in the belt between the 12-mile and
the 50-mile limit. It is also possible that disputes
may arise between the Parties over the
interpretation or application of the guidelines laid
down by the Court for the conduct of the
negotiations it has directed them to undertake. As
the Judgment shows that the Court, by
considering it could leave aside the question of
the conformity with international law of Iceland's
extension of its fishery zone, regards itself as
Page 100 of 112
competent to deal with questions of fishing rights
and conservation measures beyond the 12-mile
limit, there is no escaping the conclusion that,
according to the logic of the Judgment, a [p 155]
whole series of disputes born of the situation
created by the Judgment would be referable to the
Court.
In the light of the foregoing considerations, I am
of the view that in the present Judgment the Court
has considerably exceeded the jurisdiction
conferred upon it by the 1961 agreement.
***
While not pronouncing upon the above-
mentioned questions, the Court has devoted a
considerable part of its Judgment to the effects,
for the present proceedings, of the interim
agreement concluded between the Parties on 13
November 1973. There again, I regret to have to
record that my opinion does not coincide with
that of the Court.
The interim agreement was concluded by an
Exchange of Notes, the first of which was a
communication from the Minister for Foreign
Affairs of Iceland to the British Ambassador in
Reykjavik, setting out the agreed terms, while the
second consists of the Ambassador's reply
accepting the contents of the agreement on behalf
of the United Kingdom. The Minister begins by
noting that the arrangements in question were
worked out in the course of discussions between
the two Governments with a view to concluding
an interim agreement relating to fisheries in the
disputed area, pending a settlement of the
substantive dispute and without preju-dice to the
legal position or rights of either Government in
relation thereto. Iceland's negative attitude
towards the Court precludes the idea that the
settlement envisaged by the Parties was that
which might result from a judgment of the Court.
That is also clear from paragraph 7 of the Note,
according to which the agreement would run for
two years from the date of the Exchange of Notes
(13 November 1973). Even the greatest pessimist
could not suppose that the present proceedings
before the Court would last until 13 November
1975. One must therefore conclude that in fixing
this time-limit the Parties must have had
something else in mind. Circumstantial evidence
suggests that this must have been the third United
Nations diplomatic Conference on the Law of the
Sea, which was to open on 22 June 1974. For
example, the United Kingdom, in paragraph 297
of its Memorial on the merits, had held that
Iceland, rather than acting unilaterally to extend
its fishery zone, ought to have awaited the
outcome of the Conference.
That being so, one may, I consider, legitimately
ask whether the pursuit of the proceedings before
the Court during the period covered by the
interim agreement is compatible with that treaty.
In the United Kingdom, the Prime Minister stated
to the House of Commons that the Government's
position before the Court remained exactly what
it was before the conclusion of the interim
agreement, which had been concluded without
prejudice to the case of either Party. It is thus
evident that the United Kingdom does not
interpret the interim agreement as implying that
the proceedings before the Court should be
interrupted. In Iceland, the [p 156] interim
agreement was the subject of an Althing debate
on 12 November 1973. When the Prime Minister
was criticized for not having insisted on the
United Kingdom's discontinuing its proceedings
before the Court, he pointed out that it would
have been illogical of him to do so, given his
position in regard to the 1961 Exchange of Notes
and vis-à-vis the Court: would he not have
appeared to be recognizing the continuing,
validity of the 1961 Exchange of Notes?
(Alpingistiًindi Vmraًur 1973, p. 536.) It
follows that the interim agreement takes no
account of the proceedings before the Court and
could not constitute a bar to the United
Kingdom's pursuance of them. That, however,
does not mean that the agreement should have no
effect on the Court's findings.
The interim agreement lays down, in respect of
the period from 13 November 1973 to 13
November 1975, the conditions under which
British vessels will have the right to fish in the
disputed area. Counsel for the United Kingdom
was asked whether that agreement definitively
regulated, for the period indicated, the relations
of the two Parties, so far as the fisheries in
question were concerned, or whether it would be
possible for the Court to replace that regulation
with another. The reply was that the judgment
would state the rules of customary international
law between the Parties, defining their respective
Page 101 of 112
rights and obligations. However, that would not
mean that the judgment would completely replace
the interim agreement with immediate effect in
the relations between the Parties, for, as the
British Government saw the matter, the
agreement would remain as a treaty in force. In
any event, the Parties would be under a duty fully
to regulate their relations in accordance with the
terms of the judgment as soon as the interim
agreement ceased to be in force, i.e., on 13
November 1975, or at such earlier date as the
Parties might agree. On the other hand, the
judgment would have immediate effect in so far
as it dealt with matters not covered in the
agreement.
Thus the British Government hinted at the
possibility that the Court might regulate, with
immediate effect, certain matters which were left
outside the scope of the interim agreement. But it
failed to indicate the possible substance of these
matters, which must at the same time be covered
by the Application and be relevant to the manner
in which British fishing vessels pursue their
activities in the disputed area. Compare the
Application and the interim agreement as one
may, one still fails to see what matters these
might be.
It must be concluded that the interim agreement
definitively regulated the conditions under which
British vessels have the right to fish in the
disputed area between 13 November 1973 and 13
November 1975. A judgment of the kind sought
by the British Government could therefore not be
implemented before the expiry of the interim
agreement. What the United Kingdom is
requesting of the Court is to state the law which
would have been applicable to the relations
between the Parties in the event that they had not
concluded that agreement. Yet the essence of the
judicial function is to declare the law between the
Parties as it exists, and not to declare what the
law would have been if the existing law had [p
157] not existed. The conclusion of the interim
agreement has therefore had the effect of
rendering the Application of the United Kingdom
without object so far as the period covered by the
agreement is concerned.
As for the period which will begin on the expiry
of the interim agreement, i.e., on 13 November
1975, it is clear to me, above all after the
explanations obtained during the oral
proceedings, that the Application of the United
Kingdom is tantamount to a request that the
Court should define the customary international
law which should govern the conditions under
which British vessels will then be able to fish in
the disputed area. Is it possible for the Court to
accede to such a request?
Like all domains of law, the law of the sea is
subject to evolution. New multilateral or bilateral
international conventions come into being, and
customary law is modified. It is undeniable that
one of the possible results of the Third
Conference on the Law of the Sea, which is being
held at this moment, will be a clarification or
modification of the rules governing the fisheries
jurisdiction of coastal States. In paragraph 297 of
its Memorial on the merits, the British
Government argues that Iceland, rather than take
precipitate and unilateral action, ought properly
to have awaited the outcome of the Conference,
which will be considering such issues as the
breadth of exclusive fishery zones, the
conservation of the living resources of the high
seas, and the special rights of coastal States.
According to the Memorial, the precedent of the
1958 and 1960 Geneva Conferences does not
justify Iceland in assuming that it will be
impossible to reach agreement or decide upon
concerted measures to meet those needs of
Iceland which the community of States as a
whole recognizes to be just and deserving of legal
protection. In fact, the British Government
continued, the 1958 and 1960 Conferences laid
the basis for a general recognition of the validity
of exclusive fishery zones up to a 12-mile limit
and, on that basis, many States negotiated
international agreements, of which the Anglo-
Icelandic Exchange of Notes of 1961 was a case
in point. The 1974 Conference might well
provide an even greater measure of agreement
over new rules to be incorporated into
international law. The Government of the United
Kingdom stressed, however, in paragraph 298 of
its Memorial, that what the Conference might
agree about changes in the existing law was
irrelevant to the present case before the Court.
At the stage of the oral proceedings, the British
Government showed much less optimism with
regard to the results which might be expected
from the Third Conference on the Law of the Sea.
This is clear from the written reply given by
Page 102 of 112
counsel for the United Kingdom to the question
whether it was compatible with the position
adopted in paragraph 297 of the Memorial to
request of the Court a decision intended to
regulate the Parties' relations with regard to
fishing in a non-immediate future. The reply was
to the effect that the 1974 session was widely
expected to be followed by a second session in
1975, and that it appeared far from certain that
any clear outcome would have been produced
before the [p 158] expiry of the interim
agreement; that was why the British Government
had indicated in paragraph 298 of its Memorial
that whatever a new Conference might agree
about changes in the law was beside the point. In
the same reply the Government of the United
Kingdom explained that it intended to take a
positive attitude towards the negotiations on the
many interrelated items with which the
Conference would be dealing, with a view to
contributing to the adoption of a new convention
that might clarify a number of existing issues and
further the progressive development of
international law. Nevertheless, the British
Government continued, even if a convention were
to be concluded reasonably quickly, it would
remain to be seen how long it would take to enter
into force or have an impact upon the
development of international law through State
practice, and it would also remain to be seen
whether Iceland— which had not yet adhered to
any of the Geneva Conventions of 1958— would
become a party to it. Hence, according to the
British Government, the Court's judgment would
constitute an authoritative statement of the rights
and obligations of the Parties under existing law
and might provide a basis for the negotiation of
arrangements to follow those contained in the
interim agreement. For those reasons, the British
Government con-sidered it quite compatible with
the view expressed at the beginning of paragraph
297 of its Memorial that it should seek of the
Court a judgment on the United Kingdom's
submissions.
Dating as it does from 31 July 1973, the United
Kingdom's Memorial on the merits of the case
could not have taken into account the effects of
the interim agreement of 13 November 1973. The
circumstances in which the Memorial was
prepared gave way to a profoundly different
situation once the interim agreement had been
signed, for it is only on 13 November 1975 that
customary international law will again govern the
conditions under which fishing is carried out in
the disputed area. It is true that the British
Government is now of the opinion that, in all
probability, the Third Conference on the Law of
the Sea will still not have changed anything by 13
November 1975. But, given the impossibility of
foreseeing the changes which, even in the near
future, may affect an actively evolving field of
law, 1 find that there is no certainty on which the
Court can base its judgment: there is a very real
possibility that a claim which at the present
moment has no legal justification may prove
tomorrow to be well founded. The Court ought
therefore to decline any request which in effect
calls upon it to declare the customary law of the
future.
I am unable to agree with the view, expounded in
paragraph 41 of the Judgment, that for the Court
to espouse the above conclusions would
inevitably result in discouraging the making of
interim arrangements in future disputes with the
object of reducing friction and avoiding risk to
peace and security. To my mind this argument,
applied to the present case, overlooks the fact that
the interim agreement between the Parties will
remain in force after the delivery of the Judgment
and that the Application does not request the
Court to interpret a treaty of immutable [p 159]
verbal content but to pronounce upon the future
of a customary law in active evolution. If the
interim agreement were destined to expire on the
date of the Judgment, no difficulty would have
arisen, and if the dispute concerned the
interpretation of a treaty, an interim agreement
concerning its application over a given period
would not hinder the Court from ruling before the
end of that period on the interpretation and future
application of the treaty.
However, in subparagraphs 3 and 4 of the
operative part of the Judgment, the Court finds
that the Parties are under mutual obligations to
undertake negotiations concerning their
respective fishery rights in the disputed area,
negotiations in which they must take into account
inter alia certain preferential rights attributable to
Iceland. As the Court's jurisdiction to deal with
the present case is founded solely on the
jurisdictional clause of the 1961 Exchange of
Notes, and as that clause concerns only the
question whether a future extension by Iceland of
its zone of exclusive fisheries jurisdiction would
Page 103 of 112
be in conformity with international law, I
consider that the Court, by imposing on the
Parties an obligation to negotiate in respect of
something else, has exceeded the limits of its
jurisdiction.
But that is not the only reason why I consider that
the Court is not competent to prescribe
negotiations between the Parties.
The written reply to a question put to the Agent
of the United Kingdom reveals that the British
negotiators first proposed the following form of
words for paragraph 7 of the interim agreement of
13 November 1973:
"The agreement will run for two years from the
present date. The Governments will reconsider
the position before that term expires unless they
have in the meantime agreed to a settlement of
the substantive dispute. In the absence of such a
settlement, the termination of this agreement will
not affect the legal position of either Government
with respect to the substantive dispute."
The Government of Iceland, however, requested
the deletion of the central portion of this text, and
paragraph 7 was finally drafted in the following
terms:
"The agreement will run for two years from the
present date. Its termination will not affect the
legal position of either Government with respect
to the substantive dispute."
To my mind, the deletion, at the request of the
Icelandic Government, of the reference to a
reconsideration of the position before the expiry
of the interim agreement and to the possibility of
agreeing in the meantime to a settlement of the
substantive dispute constitutes incontrovertible
evidence that Iceland did not accept any
obligation to enter into fresh negotiations with the
United Kingdom for so long as the interim
agreement remained in force. Consequently, if
Iceland prefers to concentrate upon the new [p
160] Conference on the Law of the Sea without at
the same time negotiating bilaterally with the
United Kingdom, there is nothing to oblige it to
enter into such negotiations.
In my view, it is impossible to overthrow this
conclusion by quoting the North Sea Continental
Shelf Judgment, as paragraph 75 of the present
Judgment does. It must be recalled that the
circumstances of the present case are very
different from those of North Sea Continental
Shelf in which the Parties, by common
agreement, had requested the Court to indicate
the principles and rules of international law
applicable to their dispute and had undertaken to
conclude an agreement in accordance with the
Court's decision. Neither is it, I feel, possible to
regard my interpretation of the interim agreement
of 13 November 1973 as contrary to the Charter
of the United Nations, which also is appealed to
in paragraph 75 of the Judgment. However great
the importance ascribed by the Charter to
negotiations as a peaceful means for the
settlement of disputes, States remain perfectly
free to choose other peaceful means. There is
nothing surprising in the fact that Iceland, on the
eve of the new Conference on the Law of the Sea,
should have refused to accept an obligation to
continue negotiations with the United Kingdom
at bilateral level. As for the Althing resolution of
15 February 1972, cited in paragraph 77 of the
Judgment as ruling out my interpretation of the
interim agreement, I consider, like my colleague
Judge Gros and for the same reasons, that the
Court attributes to this resolution a meaning
which it does not possess. My view, in brief, is
that the particular circumspection and special care
with which the Court considers it has acted in
regard to Iceland (see para. 17 of the Judgment)
should have precluded its outright rejection of an
interpretation of the agreement, on that point,
which, given the prenatal history of that
instrument, I personally find inescapable.
***
For all these reasons, I consider that the
Application of the United Kingdom is without
object with regard both to the period from 13
November 1973 to 13 November 1975 and to the
subsequent period.
***
There remains the period between the putting into
effect of the Icelandic Regulations which are in
dispute (1 September 1972) and the coming into
force of the interim agreement (13 November
1973). In my view, it is only so far as that period
is concerned that is it necessary to consider
Page 104 of 112
whether Iceland's extension of its fishery zone
was from the beginning, and subsequently
remained, contrary to international law. It was,
moreover, solely in relation to the situation
during that period that I found it necessary to
consider those aspects of the present case with
which I dealt in the first part of this dissenting
opinion. [p 161]
As there does not exist between the two States
any convention on which the Icelandic decision
could be founded, Iceland could seek its
justification only in customary international law.
The first two United Nations Conferences on the
Law of the Sea amply demonstrated that no such
general rule of customary international law
existed in 1958-1960. If there is any general
customary rule that Iceland can rely on, it must
have come into being since 1960. Let us therefore
consider what evolution may have taken place.
It is true that an increasing number of coastal
States, whether by proclaiming the extension of
their territorial waters or by claiming fishery
zones beyond those waters, have claimed an
exclusive fisheries jurisdiction extending up to
the 50-mile or even the 200-mile limit. Never-
theless, even if one confines one's attention to the
zone lying between the 12-mile and the 50-mile
limits, the number of States that have claimed
exclusive fisheries jurisdiction therein cannot be
considered sufficiently large to justify the
conclusion that a new rule of law, generally
accepted as valid by the international community,
is being applied. Furthermore, the States whose
interests are threatened by these claims have
constantly protested. Hence another element
which is necessary to the formation of a new rule
of customary law is missing, namely its
acceptance by those States whose interests it
affects.
In the course of the proceedings before the Court,
attention has been drawn to the recent resolutions
of United Nations organs concerning permanent
sovereignty over natural resources. In its
resolution 3016 (XXVII) of 18 December 1972,
the General Assembly reaffirmed the right of
States to permanent sovereignty over all their
natural resources, on land within their national
boundaries as well as those found in the sea-bed
and the subsoil thereof within their national
jurisdiction and in the superjacent waters.
Approved by 102 votes to 0 with 22 abstentions,
this resolution was followed by a
recommendation and another resolution in similar
terms, the first being adopted by the Committee
on Natural Resources of the Economic and Social
Council, and the second by the Economic and
Social Council itself. The content of these texts,
which are of more recent date than the
Application instituting the present proceedings,
differs on one fundamental point from the
Geneva Convention on the Continental Shelf,
whose provisions are generally regarded as
codifying the law accepted around 1958: the
Convention does not attribute to the coastal State
any exclusive fishing rights with regard to fish
swimming in the waters above the continental
shelf.
The General Assembly resolution is of special
interest in the present proceedings, for Iceland
has referred to the doctrine of the continental
shelf as being the legal basis of the contested
extension of its fishery zone. The question is
therefore whether the innovation represented by
the reference to superjacent waters in the General
Assembly resolution has had the effect of
conferring upon the coastal State a jurisdiction
not inherent in the original concept of the
continental shelf, which would be [p 162]
equivalent to the sudden creation of a new rule of
customary law. Now, without having to go into
the general question of whether a resolution of
the General Assembly can create new law, I must
at all events stress one prerequisite of such
creation, namely that the States voting for the
resolution must truly have envisaged and
accepted the possibility of its immediately
acquiring binding force. But the complexity of
the circumstances in which resolution 3016
(XXVII) was adopted, the statements
accompanying the vote and the well-known
attitude of certain States regarding fishery zones
do not justify the conclusion that the resolution
was passed by a large majority of States with the
intention of creating a new binding rule of law
and of prejudging whatever decision the Third
Conference on the Law of the Sea might take on
the subject. However revelatory the resolution
may be of a current of opinion flowing in favour
of the claims of Iceland and other States, its
adoption by the General Assembly could not have
sufficed to transform the existing law and give
birth to a new general rule of customary law
Page 105 of 112
conferring on the coastal State exclusive fisheries
jurisdiction in the waters above its continental
shelf. This remark applies a fortiori to the various
expressions of doctrinal position or opinion
volunteered by States during the preparatory
stage before the Conference.
***
For the foregoing reasons I consider that the
submissions put forward and maintained by the
United Kingdom should have been rejected as
without object, except in relation to the period
between Iceland's implementation of the
extension of its zone of exclusive fisheries
jurisdiction up to the 50-mile limit (1 September
1972) and the coming into force of the interim
agreement between the Parties (13 November
1973). Considering as I do that the measure
decided by Iceland was without foundation in
international law, I find that its application to
British fishing vessels during the above-
mentioned period constituted an infringement of
international law vis-à-vis the United Kingdom.
In the light of the considerations I have put
forward above, this finding does not mean that,
on the termination of the interim agreement
concluded between the Parties on 13 November
1973, the extension of Iceland's fishery zone
should automatically be considered as still
inconsistent with international law.
The system of the Judgment did not however
enable me to cast a vote expressing my position
in regard to the period from 1 September 1972 to
13 November 1973. The reason is twofold: no
distinction is made between different periods of
application of the Icelandic measure and, in
declaring that measure non-opposable to the
United Kingdom, the Court bases itself solely on
considerations concerning the historic rights [p
163] of the United Kingdom and studiously
avoids pronouncing upon the only question in
respect of which the 1961 agreement conferred
jurisdiction upon it, that of the conformity with
international law of the extension of Iceland's
fishery zone.
No other course was therefore left to me but to
vote against the Judgment in its entirety.
(Signed) S. Petren. [p164]

DISSENTING OPINION OF JUDGE
ONYEAMA
1. Although I agree that the Regulations
concerning the Fishery Limits off Iceland
(Reglugerً urn fiskveiًilandhelgi Islands)
promulgated by the Government of Iceland on 14
July 1972, and constituting a unilateral extension
of the exclusive fishing rights of Iceland to 50
nautical miles from the baselines specified therein
are not opposable to the Government of the
United Kingdom; and, although I agree also that,
in consequence, the Government of Iceland is not
entitled unilaterally to exclude United Kingdom
fishing vessels from areas to seaward of the
fishery limits agreed to in the Exchange of Notes
of 11 March 1961 or unilaterally to impose
restrictions on the activities of those vessels in
such areas, my reasons for reaching these
conclusions are so fundamentally different from
those of the Court that I feel unable to vote for
the first part of the operative clause of the
Judgment for the reasons given by the Court. For
the rest of the Judgment, it is my view that the
Court settled an issue on which the Parties were
not in dispute. In my view the Court's approach to
the entire case has led it to refrain from deciding
the sole dispute before it, and to consider and
settle an issue on which the Parties were not
shown to be in difference and on which the
Court's jurisdiction is very much in doubt.
2. At the jurisdiction phase of the present case
FN1, the Court said:
------------------------------------------------------------
---------------------------------------------------------
FN1 Fisheries Jurisdiction (United Kingdom v.
Iceland), Jurisdiction of the Court (I.C.J. Reports
1973, p. 3).
------------------------------------------------------------
---------------------------------------------------------
"The present case concerns a dispute between the
Government of the United Kingdom and the
Government of Iceland occasioned by the claim
of the latter to extend its exclusive fisheries
jurisdiction to a zone of 50 nautical miles around
Iceland." (I.C.J. Reports 1973, p. 7, para. 11.)
(Emphasis added.)
In the written submissions filed on behalf of the
Page 106 of 112
Government of the United Kingdom at the close
of the oral proceedings in the jurisdiction phase it
was stated, inter alia:
"(c) that, given the refusal by the United
Kingdom to accept the validity of unilateral
action by Iceland purporting to extend its
fisheries limits (as manifested in the Aides-
Memoires of the Government of Iceland of 31
August 1971, and 24 February [p 165] 1972, the
Resolution of the Althing of 15 February 1972
and the Regulations of 14 July 1972, issued
pursuant to that Resolution), a dispute exists
between Iceland and the United Kingdom which
constitutes a dispute within the terms of the
compromissory clause of the Exchange of Notes
of 11 March 1961". (I.C.J. Reports 1973, p. 6,
para. 9 (c).)
3. The question which arises in the present case is
what is the dispute between the Parties which has
been submitted to the Court and which the Court
decided on 2 February 1973 it has jurisdiction to
entertain? It seems to me that the answer to this
question is to be found in the discussions between
the Parties preceding the Exchange of Notes of
1961, the Exchange of Notes itself, the
subsequent communications between the Parties
and the various enactments of the Parliament of
Iceland. An examination of these materials
appears to me to show that the dispute between
the Parties in the case in hand is about the
unilateral extension of Iceland's exclusive
fisheries jurisdiction beyond the 12 miles around
Iceland agreed in the Exchange of Notes of 1961.
4. The negotiations conducted between the
United Kingdom and Iceland which resulted in
the Exchange of Notes of 1961 were necessitated
by a desire on both sides to seek adjustment of
the differences between them over the proposed
extension by Iceland of her fishery jurisdiction
round her coast from 4 miles to 12 miles after the
conclusion of the United Nations Conference on
the Law of the Sea in 1958. The United Kingdom
opposed this proposed extension on the ground
that it had no basis in international law, but with
the emergence of a general trend towards
accepting a 12-mile limit of fishery jurisdiction
after the Geneva Conference on the Law of the
Sea it was possible for the Parties to reach the
agreement constituted by the Exchange of Notes
of 1961.

The record of the discussions during these
negotiations is illuminating; it shows clearly what
the dispute between the Parties was about, and
what it was the United Kingdom was anxious to
guard against by the compromissory clause of the
Exchange of Notes on which it had insisted
during the negotiations.
5. This record shows that at the first meeting on 1
October 1960, between the Icelandic delegation
and the United Kingdom delegation, the leader of
the Icelandic delegation in stating the views of
the Icelandic Government made the points:
"(a) Iceland is in a unique position in that its
people are dependent entirely upon the coastal
fisheries; this is universally recognized;
(b) it is therefore essential for the Icelandic
Government to safeguard its coastal fishery
resources: conservation measures applicable to all
alike were not sufficient for this. It is, therefore,
the policy of the Icelandic Government to secure
exclusive fishery jurisdiction 'In accordance with
international law". The [p 166] International Law
Commission of the United Nations had, in 1956,
drawn attention to countries which found
themselves in this special position." (Emphasis
added.)
The Icelandic delegation made it clear that future
extensions of exclusive fisheries jurisdiction
could not be ruled out, and paragraph VIII of the
Icelandic Memorandum handed to the United
Kingdom delegation stated:
"The Icelandic Government reserves its right to
extend fisheries jurisdiction in Icelandic waters in
conformity with international law. Such
extension would, however, be based either on an
agreement (bilateral or multilateral) or decisions
of the Icelandic Government which would be
subject to arbitration at the request of appropriate
parties."
6. Throughout these negotiations the question of
Iceland's preferential rights or of conservation
was not discussed, although the United Kingdom
delegation, on a number of occasions, suggested
that it might consider restrictions on fishing by
the United Kingdom outside the 12-mile zone
during the phasing-out period yet to be agreed on,
if such restrictions were shown to be necessary in
Page 107 of 112
the interests of conservation. The Icelandic
delegation did not take up these suggestions, and
left no doubt that outside the 12-mile zone its
long-term aim remained the extension of
Iceland's exclusive fishery jurisdiction. The
Records of Anglo-Icelandic Discussions of 1
November 1960 bring this out clearly as the
following extract from page 33 shows:
"Sir Patrick Reilly then turned to the question of
the assurance to be given by the Icelandic
Government. He asked Miss Gutteridge to
explain the British position on this. Miss
Gutteridge said we were glad to know that an
assurance was considered possible on the
Icelandic side. We could not of course oppose
any further extension of limits made by Iceland in
accordance with international law. At the same
time we held that extensions could only be by
agreement and could not be unilateral even if a
coastal State offered arbitration. For this reason
we could not accept the last sentence in the text
for the assurance proposed by the Icelandic
Government. While in Reykjavik the British
Delegation had worked out a formula which
seemed to provide a possible basis agreeable to
both sides and suggested that this formula should
now be discussed. Miss Gutteridge handed over a
copy of the following proposed text:
'Except in accordance with the terms of any
subsequent agreement between the United
Kingdom and Iceland or any subsequent [p 167]
multilateral agreement which embodies a
generally accepted rule of law in relation to
fishing limits, the Icelandic Government will not
take any action to exclude vessels registered in
the territory of the United Kingdom from fishing
in any area outside the 12-mile limit.'
After studying the text Mr. Andersen said that it
was necessary for the purpose of presentation to
public opinion in Iceland to leave the Icelandic
Government's hands 'untied' in respect of possible
further extensions of fishery jurisdiction. The
Icelandic Government would therefore as a
minimum want to cover in the wording of the
assurance the possibility of applying customary
law, as well as international law. Opinion in the
world was always changing and Iceland would
want to take advantage of that if it were
favourable without waiting for changes in
international law which always seemed diffi-cult
to achieve (e.g., the two Geneva Conferences)."
7. The history and nature of the dispute which
was then being settled leave no doubt in my mind
that the assurance then demanded by the United
Kingdom, and subsequently given by Iceland
about future extensions, could not be anything
else but an assurance that Iceland would not, in
the future, seek to extend her exclusive fishery
jurisdiction beyond the 12-mile limit as she was
then seeking to do from 4 miles to 12 miles
except in accordance with the terms of the
assurance.
8. The Icelandic delegation had left no-one in any
doubt that the exclusive fishery jurisdiction over
the 12-mile zone, which was then conceded, was
only a first step towards ultimate extension of
fishery jurisdiction over the entire continental
shelf of Iceland. At a meeting in Reykjavik
between the two delegations on 2 December
1960, the Foreign Minister of Iceland said that
the aim of the Icelandic Government was the
continental shelf; they were, however, ready to
state their intention to base their action on rules
of international law and also their willingness to
submit any dispute to the International Court.
9. In these negotiations preceding the Exchange
of Notes, no mention was made of the need for
conservation of the fish-stocks around Iceland nor
of Iceland's preferential rights as matters on
which either of the parties required assurances
then or thereafter. These matters were not
discussed at all as they were not the problems
created by the proposed extension of Iceland's
exclusive fishery jurisdiction from 4 miles to 12
miles in 1958.
10. In the light of the foregoing, it seems to me
that what the United Kingdom and Iceland had in
mind when they agreed in the Exchange of Notes
of 11 March 1961 that "in case of a dispute in
relation to such [p 168] extension, the matter
shall, at the request of either party, be referred to
the International Court of Justice" was a dispute
in relation to the unilateral extension of fishery
jurisdiction by Iceland beyond the limit then
agreed. It was precisely such a dispute which
arose following a statement of policy by the
Government of Iceland on 14 July 1971. This
policy statement was, in the material part, in the
following terms:
Page 108 of 112
"Territorial waters. That the agreements on
fisheries jurisdiction with the British and the
West Germans be terminated and that a decision
be taken on the extension of fisheries jurisdiction
to 50 nautical miles from base lines, and that this
extension become effective not later than
September 1st, 1972. Furthermore, that a decision
be taken on 100 nautical mile pollution
jurisdiction. In these matters of jurisdiction over
coastal waters, the government will consult the
opposition parties and give them an opportunity
to follow all developments in this field."
11. In its aide-memoire of 31 August 1971 in
reply to the United Kingdom's protests over the
policy statement the Icelandic Government said
(inter alia):
"In order to strengthen the measures of protection
essential to safeguard the vital interests of the
Icelandic people in the seas surrounding its
coasts, the Government of Iceland now finds it
essential to extend further the zone of exclusive
fisheries jurisdiction around its coasts to include
the areas of sea covering the continental shelf. It
is contemplated that the new limits, the precise
boundaries of which will be furnished at a later
date, will enter into force not later than 1
September 1972."
To this the United Kingdom replied in an aide-
memoire of 27 September 1971 as follows:
"The British Government have studied the
contents of the Government of Iceland's aide-
memoire of 31 August 1971 concerning a
proposal by the Government of Iceland 'to extend
further the zone of exclusive fisheries jurisdiction
around its coasts to include the area of sea
covering the continental shelf. The British
Government wish to place on record their view
that such an extension of the fishery zone around
Iceland would have no basis in international law.
The British Government further cannot accept the
view expressed in the aide-memoire that the
object and purpose of the provision, contained in
the Anglo-Icelandic Exchange of Notes of March
1961, for recourse to judicial settlement of
disputes relating to an extension of fisheries
jurisdiction around Iceland have been fully
achieved. The British Government wish formally
to reserve all their rights under [p 169] that
agreement including the right to refer disputes to
the International Court of Justice.
The British Government note the Government of
Iceland's proposal of further discussions. Without
prejudice to their legal position outlined above
the British Government are prepared to enter into
further exploratory discussions with the
Government of Iceland."
12. On 15 February 1972 the Parliament of
Iceland passed the resolution which, in view of its
critical importance, is set out in full:
"The Althing reiterates the fundamental policy of
the Icelandic People that the continental shelf of
Iceland and the superjacent waters are within the
jurisdiction of Iceland and adopts the following
Resolution:
1. That the fishery limits will be extended to 50
miles from base-lines around the country, to
become effective not later than 1 September
1972.
2. That the Governments of the United Kingdom
and the Federal Republic of Germany be again
informed that because of the vital interests of the
nation and owing to changed circumstances the
Notes concerning fishery limits exchanged in
1961 are no longer applicable and that their
provisions do not constitute an obligation for
Iceland.
3. That efforts to reach a solution of the problems
connected with the extension be continued
through discussions with the Governments of the
United Kingdom and the Federal Republic of
Germany.
4. That effective supervision of the fish stocks in
the Iceland area be continued in consultation with
marine biologists and that the necessary measures
be taken for the protection of the fish stocks and
specified areas in order to prevent over-fishing.
5. That co-operation with other nations be
continued concerning the necessary measures to
prevent marine pollution and authorizes the
Government to declare unilaterally a special
jurisdiction with regard to pollution in the seas
surrounding Iceland."
13. The discussions which followed between the
United Kingdom and Iceland in an effort to find a
"practical solution to the problem" did not alter
the nature of the claim Iceland was making nor
the nature of the dispute. The suggestions by the
Page 109 of 112
United Kingdom for mutually agreed
conservation measures as a solution to the
problem of possible injury to fish stocks in the
area, and for limitation of the catch of demersal
fish as an interim measure pending the
elaboration of a multilateral agreement within the
North-East Atlantic Fisheries Commission, were
not accepted by Iceland which was concerned to
maintain the exclusive character of its [p 170]
claim to the fishery in the area, while it remained
ready to consider practical arrangements under
which British ships might be permitted, subject to
certain conditions, to continue to fish in the area
in question for a limited phase-out period. It
evinced no interest in the question of its
preferential rights or conservation measures in the
area as a possible answer to its claim.
14. In the jurisdiction phase of the present case,
the Court considered what the issue before it was,
and said:
"Account must also be taken of the fact that the
Applicant has contended before the Court that to
the extent that Iceland may, as a coastal State
specially dependent on coastal fisheries for its
livelihood or economic development, assert a
need to procure the establishment of a special
fisheries conservation regime (including such a
regime under which it enjoys preferential rights)
in the waters adjacent to its coast but beyond the
exclusive fisheries zone provided for by the 1961
Exchange of Notes, it can legitimately pursue that
objective by collaboration and agreement with the
other countries concerned, but not by the
unilateral arrogation of exclusive rights within
those waters. The exceptional dependence of
Iceland on its fisheries and the principle of
conservation of fish stocks having been
recognized, the question remains as to whether
Iceland is or is not competent unilaterally to
assert an exclusive fisheries jurisdiction
extending beyond the 12-mile limit. The issue
before the Court in the present phase of the
proceedings concerns solely its jurisdiction to
determine the latter point." (Emphasis added.)
(I.C.J. Reports 1973, p. 20, para. 42.)
This "latter point" was covered in the first
submission of the United Kingdom in its
Application.
15. Regarding the second submission in the
Application the Court, in the jurisdiction phase,
dealt with it in paragraphs 41 and 42 of the
Judgment. Paragraph 41 is as follows:
"It should be observed in this connection that the
exceptional dependence of Iceland on its fisheries
for its subsistence and economic development is
expressly recognized in the 1961 Exchange of
Notes, and the Court, in its Order of 17 August
1972, stated that 'it is also necessary to bear in
mind the exceptional dependence of the Icelandic
nation upon coastal fisheries for its livelihood and
economic development as expressly recognized
by the United Kingdom in its Note addressed to
the Foreign Minister of Iceland dated 11 March
1961'. The Court further stated that 'from this
point of view account must be taken of the need
for the conservation of fish stocks in the Iceland
area'." (I.C.J. Reports 1972, pp. 16 and 17.) "This
point is not disputed." (I.C.J. Reports 1973, p. 20,
para. 41.) [p 171]
It is to be noted with reference to this second
submission, which is repeated in more elaborate
form in the Memorial and in the submissions at
the end of the oral proceedings, that it is
hypothetical, and based on the assumption that
Iceland, as a coastal State in a special situation,
raises questions concerning conservation of fish
stocks and preferential rights; but Iceland has not
raised these questions in any of the negotiations
or in any of the documents it saw fit to transmit to
the Court. I understand the statements of the
Court cited above to mean that the exceptional
dependence of Iceland on its fisheries for its
subsistence and economic development, and the
principle of conservation (including a
conservation regime under which Iceland enjoys
preferential rights) were recognized by the United
Kingdom, and were, therefore, not in issue. The
issue before the Court was whether it had
jurisdiction to determine whether Iceland was
competent unilaterally to assert an exclusive
fisheries jurisdiction extending beyond the 12-
mile limit. It was on this dispute, about the
validity of the extension, that the Court decided it
had jurisdiction.
16. In the forefront of the submissions of the
United Kingdom in the Application and in the
Memorial on the merits was a request for a
decision by the Court that there is no foundation
in international law for the claim by Iceland to be
entitled to extend its fisheries jurisdiction by
Page 110 of 112
establishing a zone of exclusive fisheries
jurisdiction extending to 50 nautical miles. This,
it seems to me, was the gravamen of the dispute,
but the Court now declines to decide it. The
decision appears to approach the dispute, not
from the point of view of the conflict of the
extension with any conventions or with
customary international law, but from the point of
view that the extension was an exercise of
preferential rights which did not give due regard
to established rights. This was not the dispute
between the Parties and it forms no part of the
claim made by Iceland.
17. I am of the opinion that Article 2 of the High
Seas Convention and Article 3 of the Continental
Shelf Convention FN1 provide a basis in positive
international law for deciding that the extension
has no basis in international law; and the Court,
having found that the concept of the fishery zone,
and the extension of that fishery zone up to a 12-
mile limit from baselines, appear now to be
generally accepted FN2 as customary
international law, should have drawn the
conclusion that the unilateral extension to a 50-
mile limit by Iceland with which this case is
concerned is contrary to international law, and
stated that conclusion in the operative clause of
the Judgment.
------------------------------------------------------------
---------------------------------------------------------
FN1 "The coastal State has no jurisdiction over
the superjacent waters" [of the continental shelf]
(I.C.J. Reports 1969, p. 37, para. 59).
FN2 See para. 52 of the Judgment.
------------------------------------------------------------
---------------------------------------------------------
By introducing the concept of preferential rights
into the case and linking its Judgment FN3 with
this concept, the Court, in my view, took [p 172]
cognizance of matters which were not in dispute
between the Parties and which were not covered
by the compromissory clause of the Ex-change of
Notes of 1961.
------------------------------------------------------------
---------------------------------------------------------
FN3 Operative part, subparas. 3 and 4.
------------------------------------------------------------
---------------------------------------------------------
As I have endeavoured to point out, the
discussions preceding the Exchange of Notes did
not indicate that any concern was felt about the
future application of conservation measures
outside the 12-mile limit then agreed.
18. In the discussions after the promulgation of
the Regulations which purported to extend
Iceland's fishery jurisdiction to 50 miles from the
existing baselines, Iceland appeared to be
interested only in a temporary arrangement with
the United Kingdom, and not in any permanent
bilateral or multilateral conservation or catch-
limitation arrangement in which it would be
entitled to exercise preferential rights and other
interested States would continue to fish in the
area.
19. Thus, in a Note dated 11 August 1972, that is
after the filing of the Application in this case and
the hearing of oral argument on the Request for
the indication of interim measures of protection,
the Government of Iceland made certain
proposals to the Government of the United
Kingdom and requested "positive replies to two
fundamental points" FN1.
------------------------------------------------------------
---------------------------------------------------------
FN1 See Annex 10 to the Memorial on the
merits.
------------------------------------------------------------
---------------------------------------------------------
This Note forms part of a series of proposals and
counter-proposals which passed between the two
Governments in their endeavour to work out an
acceptable interim arrangement "which would
last only until the Court had given its decision on
the legality of the proposed action by the
Government of Iceland or until that question had
been disposed of in some other way". FN2
------------------------------------------------------------
---------------------------------------------------------
FN2 Memorial on the merits, para. 31.
------------------------------------------------------------
---------------------------------------------------------
It would, I think, be wrong to regard these
proposals and counterproposals, which were
clearly related to negotiations for an interim
regime, as indicative of the nature of the original
Page 111 of 112
dispute which had, in fact, crystallized with the
filing of the Application.
20. Iceland's disinclination to contemplate the
concept of preferential rights in the waters in
question was brought out very sharply at the
eleventh meeting of the North-East Atlantic
Fisheries Commission in London on 9 May 1973.
On the question of the activation of Article 7 (2)
FN3 of the Convention FN4 the Summary Record
of the Second Session has the following, inter
alia:
------------------------------------------------------------
---------------------------------------------------------
FN3 "Measures for regulating the amount of total
catch, or the amount of fishing effort in any
period, or any other kinds of measures for the
purpose of the conservation of the fish stocks in
the Convention area, may be added to the
measures listed in paragraph 1 of this Article on a
proposal adopted by not less than a two-thirds
majority of the Delegations present and voting
and subsequently accepted by all Contracting
States in accordance with their respective
constitutional procedures."
FN4 The North-East Atlantic Fisheries
Convention of 1959.
------------------------------------------------------------
---------------------------------------------------------
"The Icelandic delegate reported that on account
of the extension of Icelandic fishery limits to 50-
miles and the activities of some [p 173] countries
within the limits the Icelandic Government had
reconsidered the position and had decided to
postpone the activation of Article 7 (2). In reply
to a question from the President, the Icelandic
delegate said he was unable to say when his
Government would ratify Article 7 (2) powers.
The Icelandic Government believed that coastal
States had prime responsibility to manage and
prior rights to use marine resources off their
coasts. Catch quotas appeared to conflict with
these rights and the problem would be raised at
next year's Law of the Sea Conference which was
the only forum for discussion of it. It would be
very difficult for Iceland to accept a catch quota
system which did not harmonize with its policy in
regard to fishery limits." (Emphasis added.)
21. Iceland has not, so far as I can see, asserted
any claim to preferential rights in the area in
question; on the other hand, the United Kingdom
has always stood ready to concede such rights if
they were asserted on conservation grounds and
in circumstances of catch-limitations. It does not
appear to me to be possible to have a dispute
where there is no difference on a common issue
between the parties, or where a right is conceded.
The Permanent Court of International Justice
defines a dispute as "a disagreement on a point of
law or fact, a conflict of legal views or of
interests between two persons FN1". As I
understand it, for a dispute to exist, it should
clearly appear that the claim of one party is
positively opposed by the other, and it is not
sufficient merely for it to appear that the interests
of the two parties are in conflict.

------------------------------------------------------------
---------------------------------------------------------
FN1 P.C.I.J., Series A, No. 2, p. II.
------------------------------------------------------------
---------------------------------------------------------

22. The claim clearly put forward and positively

opposed in this case is Iceland's entitlement under
international law to extend its exclusive fishery
jurisdiction to 50 miles from the baselines around
its coast; that was the point which this Court
decided it had jurisdiction to determine.

23. The Court derives its jurisdiction in this case

from the compromissory clause of the Exchange
of Notes of 1961. I think the words "in relation to
such extension" in that clause cannot reasonably
be interpreted as including disputes about
conservation, catch-limitations and prefer-ential
rights (which are not susceptible of unilateral
delimitation) within the range of disputes the
Parties agreed to refer to the Court; and in
deciding that the Parties were obliged to negotiate
these matters, the Court, to my mind, exceeded
the jurisdiction conferred on it by the Exchange
of Notes and settled a non-existent dispute.

(Signed) Charles D. Onyeama.

Page 112 of 112