International Court of Justice, Contentious Case: Anglo Norwegian Fisheries

Case (UK vs Norway)

Year of Decision: 1951.

The Court was asked to decide, amongst others, the validity, under international law, of the methods used to delimit
Norway’s territorial sea/ fisheries zone. We will not discuss the technical aspects of the judgment relating to the
delimitation, but focus on the Court’s conclusions relating to customary international law.

Background to the case

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

Findings of the Court

1. The formation of customary law

The Court referred to (1) positive State practice and (2) lack of contrary State practice as a confirmation of an
existing rule of customary international law (see p. 17 and 18). There was no mention of opinio juris in this early
judgment.

In the following passage, the Court considered expressed dissent by States regarding a particular practice to
be detrimental to the existence of an alleged general rule. Yet, the Court did not examine further whether these
States adopted a contrary practice because, for example, (1) they were claiming an exception to the rule (see
the Nicaragua jurisprudence) or (2) because they believed that the said rule did not possess the character of
customary law.

“In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been adopted
by certain States both in their national law and in their treaties and conventions, and although certain arbitral
decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-
mile rule has not acquired the authority of a general rule of international law.”

1.1. The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned ten-mile rule,

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any
attempt to apply it to the Norwegian coast.”

In this case, the Court appears to support the idea that an existing customary law rule would not apply to a State if
(1) it objected to the application of the rule to itself (2) at the initial stages and (3) in a consistent manner. The Anglo
Norwegian Fisheries Case, thus, supports the Asylum Case (Peru vs Colombia) in articulating what we now call the
persistent objector rule.

a. Initial objection
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the adoption
in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to have
acquired the force of international law. Still less would it appear to have any foundation in reality…”

The Court held that “Language of this kind can only be construed as the considered expression of a legal conception
regarded by the Norwegian Government as compatible with international law”. Thus, the Court held that Norway
had refused to accept the rule as regards to it in 1870.

b. Sustained objection

The Court also went on to hold that Norway had followed the principles of delimitation that it considered a part of
its system in a consistent and uninterrupted manner from 1869 until the time of the dispute.

In establishing consistent practice, the Court held that “…too much importance need not be attached to the few
uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered
in Norwegian practice.”

c. No objection by other States

The Court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind Norway
because of the latter’s objections. Next, the Court inquired whether the Norwegian system of delimitation was
nevertheless contrary to international law. To do so, the Court relied on state practice once more.

“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period
of more than sixty years the United Kingdom Government itself in no way contested it… The Court notes that in
respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government
refrained from formulating reservations.”

1.2. Contrary State practice of Norway?

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

However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was
not contrary to international law). It emphasized that its practice – even if it was a deviation from the general
practice – was in conformity with international law (see page 21).

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

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

“The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the
North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s
enforcement of her system against the United Kingdom. The Court is thus led to conclude that the method of straight
lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that
even before the dispute arose, this method had been consolidated by a consistent and sufficiently long practice, in
the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to
international law.”

2. Relationship between international and national law

The Court alluded to the relationship between national and international law in delimitation of maritime boundaries.
In delimitation cases, States “must be allowed the latitude necessary in order to be able to adapt its delimitation to
practical needs and local requirements…” The Court would also consider “…certain economic interests peculiar to
a region, the reality and importance of which are clearly evidenced by a long usage.” However, while the act of
delimitation can be undertaken by the State, its legal validity depends on international law.

“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the
coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a
unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard
to other States depends upon international law. (p. 20)”

Further reading:
T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’,
26 Harvard International Law Journal, 1985, p. 457,

J. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’, 56 BYIL, 1985, p.
1.

“In fact, the two international court of justice cases which appear to support the persistent objector rule both arose in
circumstances where the new rule itself was in substantial doubt. Thus, it was significantly easier for the objector to
maintain its status. No case is cited for a circumstance in which the objector effectively maintained its status after
the rule became well accepted in international law. In fact, it is unlikely that such a status can be maintained din
light of the realities of the international legal system. This is certainly the plight that befell the US, The UK and
Japan in the law of the sea. Their objections to expanded coastal state jurisdiction were ultimately to no avail, and
they have been forced to accede to 12-mile territorial seas and the 200-mile exclusive economic zone. “

Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp. 236 – 239.

“The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At issue was whether
Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The
United Kingdom argued that CIL did not allow the length of a baseline drawn across a bay to be longer than ten
miles. Again, as with the Asylum Case, the primary holding of the case was that the alleged CIL rule did not exist.
In the alternative, the court briefly remarked that, had the rule existed, it would not have applied against Norway
because Norway had “always opposed any attempt to apply it to the Norwegian coast.”This language is often cited
in support of the persistent objector doctrine, but it could just as easily be read to support the Default View of CIL,
since there is nothing in this language that suggests that Norway’s opposition must have occurred prior to the
establishment of the alleged rule of CIL. The arguments of the parties do not resolve this uncertainty: although the
United Kingdom appears to have supported something like the modern persistent objector doctrine, at least for rights
historically exercised by a state (while asserting that Norway had not met its requirements),Norway (which
prevailed in the case) appears to have supported something closer to the Default View.

The Asylum and Fisheries decisions provide no more than passing and ambiguous support for the doctrine. State
practice since those decisions is also relatively unhelpful, since there have been essentially no instances in which
states have invoked the doctrine. As Professor Stein reported in a 1985 article, his research had “failed to turn up
any case where an author provided even one instance of a state claiming or granting an exemption from a rule on the
basis of the persistent objector principle—excepting of course the Asylum and Fisheries cases themselves.”