Fisheries Jurisdiction (Spain v. Canada), Jurisdiction.

International Court of Justice, December 4, 1998.

On May 10, 1994, Canada filed an amended declaration accepting the jurisdiction of the International Court of Justice (ICJ). New paragraph 2(d) excluded “disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in die NAFO Regulatory Area, as defined in the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.” Two days later, the Canadian Coastal Fisheries Protection Act (CFPA) and implementing regulations were amended to authorize the enforcement under certain circumstances of conservation measures applicable to foreign fishing vessels in the high seas areas to which the reservation adverted.

On February 15, 1905, the president of the United States transmitted to the senate, with an accompanying message, the protocol of an agreement, signed eleven days earlier, between the United States and the Dominican Republic, providing for the collection and disbursement by the United States of the customs revenues of the Dominican Republic. On February 25, 1907, a little more than two years later, the senate ratified an independent convention between the United States and the Dominican Republic, signed at Santo Domingo City by the plenipotentiaries on the 8th inst. preceding, providing for the assistance of the United States in the collection and application of the customs revenues of the Dominican Republic. At this time of writing the new convention awaits only the approval of the Dominican congress to become operative.

The average individual of these modern days views war with apprehension and alarm. To him it means loss, or risk, of life or limb, either for himself or for those dear to him, or loss of business opportunities and heavy taxes. The growth of socialistic and democratic doctrines has widely spread the historic truth that in the conflicts of the past, largely brought on by the selfish greed of the oligarchic few, the plain many, “the common herd,” Napoleon’s “food for powder,” have had their sufferings for their pains. And the heads of the aggregations of men we call “sovereign states”—the oligarchic few— softened by the spread of the civilizing influence of an industrial age, themselves begin to look on war askance, and to plan ways of avoiding it.

The manner of the performance of the duty of preventing hostile expeditions, and the means to be employed for that purpose, are matters largely or entirely for the discretion of the individual state. It cannot be said that any particular method is required or sanctioned by international law. This discretion is limited, however, by practical necessity and by the exigency of good faith.

The following notes aim, in a tentative way, to discuss and analyze the source and nature of sovereignty in its relation to mankind, and to the institutions created and developed as a result of man’s desire for social order and peace. The term notes excludes the idea of an exhaustive or comprehensive treatment of sovereignty; the sole purpose in view is to direct attention to the wide-reaching importance of the subject and to suggest a line of thought somewhat different from that usually followed by publicists.

On July 18, 1976, the Soviet naval vessel, Kiev, transited the Turkish Straits from the Black Sea to the Mediterranean, with Turkish consent. Questions have been raised concerning the international legality of this transit, and in light of earlier reaction to an alleged violation by the Soviet Union of the rules on the passage of submarines through the Turkish Straits it seems appropriate to examine the facts and the governing law.

The International Radiotelegraph Conference of Washington was opened on October 4, 1927, with an address by President Coolidge and was closed on November 25, 1927, with the signing of an International Radiotelegraph Convention and Annexed General Regulations by delegates representing 78 governments and a set of Annexed Supplementary Regulations by representatives of 75 governments. In his closing address, Secretary Hoover, president of the conference, referred to it as “ the largest international conference of history.”

Two recent cases in the International Court of Justice have given new prominence to the role of interim measures of protection in international controversies. The circumstances of both the Icelandic fisheries litigation and the Australian and New Zealand application to prevent the holding of French nuclear tests in the Pacific Ocean were such as to promise an enhanced role for interim measures in interstate conflicts. First, the jealousy with which states guard their natural resources and the continuing competition for those resources, especially in the high seas, have occasioned disputes in which a potential conflict management role for interim measures has been foreshadowed. The classic award of interim measures of protection, the Anglo-Iranian Oil Company Case (Interim Measures o f Protection) (United Kingdom v. Iran) 1 was made in this context, as was the order in Fisheries Jurisdiction (United Kingdom v.Iceland), Interim Protection.2 Secondly, in both cases, the indication of interim measures was disregarded. The effective role of interim measures is thus related to the general problem of improving the acceptability of the Court to states. Interim measures of protection, as an adjunct of the ,judicial process, reflect the perennial judicial concern for effective decisionmaking.The present debate on the role of the International Court of Justice has, to a large extent, concentrated on the lack of confidence shown by states in the Court. The length of time which elapses before final judgment has constituted a serious objection to the proceedings of the Court. Interim measures may have a role to play in ameliorating this situation3 for the duration of proceedings is of less concern when the rights of the parties receive interim protection. Thirdly, interim measures, may prove a unique means of preventing abuses of the human environment at the international level. The current emphasis on problems of the environment, especially pollution in international areas such as the high seas and pollution transcending state borders, has given rise to a growing demand that environmental abuses be nipped in the bud. States are unlikely to be satisfied with final judgments after irreparable damage to the environment has been caused. Increasing awareness of the global dimensions of these problems, the greater consciousness of the interdependence of states and of the inevitable impact of natural activities upon the environments of other states, should lead to a strengthening of the preventive role of the international judicial process. In this area, the institution of interim measures of protection, such as the injunction, has a potential role of great significance.

In 2007, presidential candidate Barack Obama argued that the U.S. president did not have independent constitutional authority to use military force except in response to an actual or imminent attack on the United States. Since 2008, President Obama has directed the use of U.S. military force in at least seven countries (Iraq, Syria, Libya, Yemen, Afghanistan, Pakistan, and Somalia). Critics find inconsistency in these positions, contending that the Obama presidency will be remembered for expansion of the presidency's war powers. But when the administration's record is closely examined, these claims seem overstated. At least with regard to war initiation, the Obama presidency need not be regarded as materially enhancing the president's constitutional powers.

This assessment begins by establishing two baselines. First, most war powers scholars agree that under the Constitution's original meaning, Congress’ power to “declare War” required the president to seek congressional approval prior to initiating war. This constitutional command had substantial grey areas, including responses to threats and attacks, relations with non-state actors, and low-level hostilities. Nonetheless, the basic proposition stated by candidate Obama appears well founded both in the Constitution's text itself and in early postratification practice. Second, in the modern (post-Vietnam War) era, most scholars agree that the practice has changed somewhat, with presidents asserting an expanded independent authority over uses of military force. This essay agrees with that description, although it contends that the change in actual practice is less dramatic than commentary sometimes claims.