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International Court of Justice: Judgments on the Question of the Jurisdiction of the I.C.J. in the Fisheries Jurisdiction Cases*
Published online by Cambridge University Press: 04 April 2017
Abstract
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- Type
- Judicial and Similar Proceedings
- Information
- Copyright
- Copyright © American Society of International Law 1973
Footnotes
*
[Reproduced from the text provided by the International Court of Justice.
[In both cases concerning fisheries jurisdiction, United Kingdom v. Iceland and Federal Republic of Germany v. Iceland, the Court found by 14 votes to 1 that it had jurisdiction to entertain the Application filed and to deal with the merits of the dispute.
[The Judgment in Federal Republic of Germany v. Iceland appears at page 300. In both cases, the President of the Court appended a declaration to the Judgment, with Judge Sir Gerald Fitzmaurice appending a separate opinion and Judge Padilla Nervo a dissenting opinion. The language of the declarations and separate and dissenting opinions was virtually the same in both cases. Therefore, only one has been reproduced in each instance. The declaration appears at page 309; the separate opinion appears at page 310 and the dissenting opinion at page 316.]
References
1 This of course implied a territorial sea of less than 12 miles in extent, or there would be nothing for the contiguous zone to be contiguous to. The further implication was that a State claiming a 12-mile belt of territorial sea had no need of a contiguous zone as well. But a country claiming only 3 or 6 miles of territorial sea could still have a contiguous zone of 9 or 6 miles, as the case might be.
2 These were for the prevention and punishment of “infringements of its [the coastal State’s] customs, fiscal, immigration or sanitary regulations within its territory or territorial sea”.
3 Although the 1958 Geneva Conventions were not technically in force in 1961—(they have all come into force since)—they represented a high degree of consensus among the 85 countries which attended the Conference.
4 Since, in the absence of treaty or other sufficient agreement, sovereignty or its equivalent is necessary for the valid exercise of exclusive property rights in any area, in the sense of prohibiting and forcibly preventing fishing by others, this expression was really sufficient in itself to rule out exclusive fishery rights in any areas that were high seas.
5 The phrase here italicized was intended to relate to all the waters covered by the Convention, including—and above all—those of the north-east Atlantic.
6 The object of this wording was, if not to exclude the notion entirely, at least to reserve the question of full unlimited sovereignty, stricto sertsu, over the continental shelf.
7 For the implications of these last dozen or so words, see preceding footnote.
8 The territorial sea involves responsibilities as well as rights, which many countries were unable to discharge satisfactorily outside a relatively narrow belt, such as for example policing and maintaining order; buoying and marking channels and reefs, sandbanks and other obstacles; keeping navigable channels clear, and giving notice of dangers to navigation; providing rescue services, lighthouses, lightships, bell-buoys, etc.
9 As its name implies, the territorial sea is that part of the sea which is attached to or washes the land territory and constitutes a natural extension seaward of the land domain. The dictum of the International Court of Justice in its North Sea Continental Shelf Judgment about the true nature of the concept of “adjacency” is as valid for undue extensions of the territorial sea as it is for distant points on the continental shelf bed,—see l.C.J. Reports 1969, at p. 30, para. 41.
10 This proposal would have caused the permissible fishery limit to coincide with the permissible limit of the contiguous zone (see para. 4 and footnote 1 above), and would in effect have given the coastal State exclusive fishery rights in that zone.
11 The effect of baselines on the extent of the zone drawn from them is often overlooked by non-technical opinion. On an indented coast there are always several ways of establishing a baseline system, conservative or the reverse. The result, if the latter method is adopted, is considerably to enlarge the area of the zone concerned, by thrusting its outer limit seawards.
12 ICAO—the International Civil Aviation Organization.
13 The immediately relevant passages are in paragraphs 16(b) and 32 of the Judgment, I.C.J. Reports 1972. pp. 53-54 and 64-65.
14 This might have been the case if, for instance (as is often done), the obligation to have recourse to the Court had been undertaken only for a specified period; or if it had appeared to relate not to an actual purported extension of Iceland’s fisheries jurisdiction, but only to the validity or effect of the notice given about it.
15 Except of course to allow Iceland also to make an application to the Court if circumstances arose to make her want to do so—see para. 20 below.
16 For instance if the character of the International Court itself had changed in the meantime so that it was no longer the entity the Parties had had in mind, e.g., if, owing to developments in the United Nations, the Court had been converted into a tribunal of mixed law and conciliation, proceeding on a basis other than a purely juridical one.
17 The matter can readily be tested,—for although the Parties elected to embody the 12-mile zone concession and the reservation of transitional rights in two separate and formally independent provisions, a more elegant, and strictly more correct method, would have been to provide in one single article for a recognition of Iceland’s exclusive rights in the major parts of the zone immediately, but, for the other parts, only after a transitional period. The true character of the transaction, as consisting of a greater and a lesser concession—but both of them concessions—would then have been evident. Only if Iceland could have claimed the 12-mile zone as of right (which was never the basis of the agreement) would it have been possible to regard the transitional rights as a concession moving from Iceland, and not as an integral part of a concession the whole of which was made by the other two Parties.
18 Such as for instance the promotion in the recent (1972) United Nations Assembly of resolutions bearing on matters that are or may be subjudice before the Court in the present case.
19 The Icelandic notification to the Federal Republic was contained in a formal communication dated 31 August 1971, and the latter’s declaration under the Security Council’s resolution was made on 29 October 1971. But in the meantime, in a formal Note dated 27 September 1971, the Federal Republic had disputed the legitimacy of Iceland’s intentions, on the ground that “the unilateral assumption of sovereign power by the coastal State over zones of the high seas is inadmissible under international law”. It had also, in the same note, disputed Iceland’s view that the adjudication clause of the 1961 Notes was no longer operative.
* [Paragraphs 23 and 24 appeared only in the separate opinion appended to the Judgment in Federal Republic of Germany v. Iceland.]