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The Fisheries Jurisdiction Case (Spain v. Canada), Judgment on Jurisdiction of 4 December 1998

Published online by Cambridge University Press:  17 January 2008

Louise De La Fayette
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Abstract

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Type
International Court of Justice: Recent Cases
Information
International & Comparative Law Quarterly , Volume 48 , Issue 3 , July 1999 , pp. 664 - 672
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. General List No.96; available on the ICJ website.

2. By a majority of 12:5, the dissenters being Vice-President Weeramantry, Judges Bedjaoui, Ranjeva and Vereshetin, and Judge ad hoc Torres Bernardez of Spain. President Schwebel and Judges Oda, Koroma and Kooijmans appended separate opinions. The Canadian Judge ad hoc was Marc Lalonde.

3. Apart from the Case concerning East Timor (Portugal v. Australia), which was dismissed because Indonesia was not a party, the Court had not declined jurisdiction in any case since the 1978 Aegean Sea Continental Shelf case, which had certain similarities to the present case.

4. In contrast, the Court accepted virtually all the Canadian arguments. Consequently, for reasons of brevity, in most instances, a summary of the Canadian position will be omitted.

5. The author was counsel for Canada. Any opinions expressed herein are personal and are not to be attributed to the Canadian government.

6. See Chapter I of the Counter-Memorial of Canada for further details. A good summary of the facts up to Apr. 1995 may also be found in Davies, Peter G. G., “The EC/Canadian Fisheries Dispute in the Northwest Atlantic”(1995) 44 I.C.L.Q. 927.Google Scholar

7. NAFO was created in 1978 by the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries (NAFO Convention). Because fisheries conservation falls within the competence of the EC in its Common Fisheries Policy, only the EU is a member of NAFO and not the individual member States. Of course, it is the member States which determine NAFO policy in the Fisheries Council.

8. The Spanish catch had soared from only 13 tonnes in 1989 to over 40,000 tonnes in 1994 (Counter-Memorial of Canada, p.18Google Scholar, citing NAFO statistics). In June 1994 the NAFO Scientific Council expressed concern about the state of the stock (NAFO, Scientific Council Report, 1994, NAFO SCS Doc.94/19, p.88).Google Scholar

9. The Spanish catch had soared from only 13 tonnes in 1989 to over 40,000 tonnes in 1994 (Counter-Memorial of Canada, p.18Google Scholar, citing NAFO statistics). In June 1994 the NAFO Scientific Council expressed concern about the state of the stock (NAFO, Scientific Council Report, 1994, NAFO SCS Doc.94/19, p.88).Google Scholar

10. The crew had been released immediately. Canada had offered to fly them home to Spain, but they preferred to remain with the ship.

11. Judgment, paras.19–22.

12. Idem, paras.29–30.

13. Idem, para.23.

14. Nuclear Tests (Australia v. France) Judgment, I.C.J. Rep. 1974, 260, para.24Google Scholar; Nuclear Tests (New Zealand v. France) Judgment, I.C.J. Rep. 1974, 466, para.30Google Scholar; and Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, order of 22 09 1995, I.C.J. Rep. 1995, 304, para.55.Google Scholar

15. Judgment, para.30.

16. Idem, para.34.

17. Idem, para.36.

18. Border and Transborder Armed Actions (Nicaragua v. Honduras) Jurisdiction and Admissibility, judgment, I.C.J. Rep.1988, 76, para.16.Google Scholar

19. Judgment, paras.31–38.

20. Idem, paras.40–41.

21. Idem, para.42.

22. Idem, para.43.

23. Idem, para.44, citing Phosphates in Morocco, judgment, 1938, P.C.I.J., Ser.A/B, No.74 p.23.Google Scholar

24. Idem, para.45.

25. Idem, para.46.

26. Idem, paras.47–48, citing Anglo-Iranian Oil Co., Preliminary Objection, judgment I.C.J. Rep. 1952, 104–105.Google Scholar

27. Agean Sea Continental Shelf, Judgment I.C.J. Rep. 1978, 3 at 29, para.69.Google Scholar

28. Idem, para.49.

29. Idem, para.50.

30. Idem, para.51.

31. Idem, para.52.

32. Idem, paras.53–54.

33. Idem, para.55.

34. Idem, para.59.

35. Idem, para.60.

36. The Court noted that the formulation in the Canadian reservation was even broader than that in the Greek reservation, which it had interpreted in the Aegean Sea case (“disputing relating to the territorial status of Greece”) (my emphasis), supra n.27, at p.34, para.81 and p.36, para.86.

37. Idem, paras.62–63.

38. Idem, para.70.

39. Idem, paras.64–74.

40. Idem, paras.75–77.

41. Idem, paras.78–84.

42. Idem, para.86.

43. Idem, para.87.

44. Separate opinion of Judge Koojimans, paras. 16–20.

45. Judgment, para.56.