INTERNATIONAL COURT OF JUSTICE

YEAR 2003
2003
10 September
General List
No. 88
10 September 2003

CASE CONCERNING QUESTIONS OF INTERPRETATION AND APPLICATION
OF THE 1971 MONTREAL CONVENTION ARISING FROM
THE AERIAL INCIDENT AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED KINGDOM)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Article 88 of the Rules of
Court,

Having regard to the Application filed in the Registry of the Court on 3 March 1992, by
which the Great Socialist People’s Libyan Arab Jamahiriya instituted proceedings against the
United Kingdom of Great Britain and Northern Ireland in respect of a “dispute between Libya and
the United Kingdom concerning the interpretation or application of the Montreal Convention” of
23 September 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation,

Having regard to the Order of 19 June 1992, by which the Court fixed 20 December 1993
and 20 June 1995 as the time-limits for the filing, respectively, of the Memorial of Libya and the
Counter-Memorial of the United Kingdom,

Having regard to the Memorial filed by Libya and the preliminary objections submitted by
the United Kingdom, within the time-limits thus fixed,

Having regard to the Judgment of 27 February 1998, by which the Court gave its decision on
the preliminary objections,

Having regard to the Order of 30 March 1998, by which the Court fixed 30 December 1998
as the time-limit for the filing of the Counter-Memorial of the United Kingdom, and to the Order of
17 December 1998, by which the Senior Judge extended that time-limit to 31 March 1999,
-2-

Having regard to the Counter-Memorial filed by the United Kingdom within the time-limit
thus extended,

Having regard to the Order of 29 June 1999, by which the Court, taking account of the
agreement of the Parties and the special circumstances of the case, authorized the submission of a
Reply by Libya and a Rejoinder by the United Kingdom and fixed 29 June 2000 as the time-limit
for the filing of the Reply of Libya,

Having regard to the Reply filed by Libya within the time-limit thus fixed,

Having regard to the Order of 6 September 2000, by which the President of the Court fixed
3 August 2001 as the time-limit for the filing of the Rejoinder of the United Kingdom,

Having regard to the Rejoinder filed by the United Kingdom within the time-limit thus fixed;

Whereas by a letter dated 9 September 2003, filed in the Registry on the same day, the
Agents of the two Parties jointly notified the Court that “the Libyan Arab Jamahiriya and the
United Kingdom have agreed to discontinue with prejudice the proceedings initiated by the Libyan
Application filed on 3 March 1992”,

Places on record the discontinuance with prejudice, by agreement of the Parties, of the
proceedings instituted on 3 March 1992 by the Great Socialist People’s Libyan Arab Jamahiriya
against the United Kingdom of Great Britain and Northern Ireland; and

Directs that the case be removed from the List.

Done in English and in French, the English text being authoritative, at the Peace Palace,
The Hague, this tenth day of September, two thousand and three, in three copies, one of which will
be placed in the archives of the Court and the others transmitted to the Government of the Great
Socialist People’s Libyan Arab Jamahiriya and the Government of the United Kingdom of Great
Britain and Northern Ireland, respectively.

(Signed) SHI Jiuyong,
President.

(Signed) Philippe COUVREUR,
Registrar.


SEPARATE OPINION OF JUDGE ONYEAMA

I agree with the conclusion of the Court that the presence of South
Africa in Namibia is illegal, but feel constrained to express my inability
to concur in the Court’s approach on certain aspects of the problem with
which the Court has had to deal in its consideration of the legal question
on which its advisory opinion is requested by the Security Council.
These aspects are, the matter of the exclusion of a Member of the Court
from participating in these proceedings, the choice of a judge ad hoc,
the Court’s competence to consider the formal and intrinsic validity
of resolutions and decisions of the General Assembly and the Security
Council, and the effect of Security Council resolution 276 (1970).

*
* *

On the objection raised by South Africa to the participation of certain
Members of the Court in the present proceedings, I do not agree that
it is a sufficient answer to the objection raised and which was rejected
in Order No. 3 of 26 January 1971, that the Member of the Court whose
participation as a judge in the case was challenged, was a representative
of his Government in his activities in the United Nations on which the
challenge was grounded.

In my view, the words “or in any other capacity” in Article 17 (2)
of the Statute are wide enough to include within their sweep activities
in the United Nations by members of national delegations who sub-
sequently become Members of the Court.

Each case must be considered on its own circumstances and no general
rule can be laid down. In the present case, the Member concerned had,
as a member of a national delegation to the United Nations, taken an
active part in drafting a resolution which touched upon resolution 2145
(XXI) of the General Assembly, a resolution which, to my mind, is
critical in the present proceedings.

The importance of the resolution with which the Member was con-
cerned, that is, Security Council resolution 246 (1968), and its relevance
to the present proceedings, appear from the fact that it formed part of
the documents transmitted to the Court as likely to throw light on the
question put to the Court, and the Court itself thought it necessary to
refer to it as part of the Security Council’s response to the call of the
General Assembly for its co-operation in ensuring the withdrawal of
South Africa from the Territory.

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I thought the circumstances were such that the Member concerned
should not have participated in the decision of the present case, and
therefore dissented from Order No. 3.

FA
* *

It will be recalled that at the outset of these proceedings, the Republic
of South Africa applied to be allowed to choose a judge ad hoc under
Article 83 of the Rules of Court. This Article provides that:

“If the advisory opinion is requested upon a legal question
actually pending between two or more States, Article 31 of the
Statute shall apply, as also the provisions of these Rules concerning
the application of that Article.”

I agree with the majority of the Court, and for the reasons given by it,
that the present Opinion is not requested upon a legal question actually
pending between South Africa and any other State or States, but in view
of the wide discretion vested in the Court by Article 68 of the Statute of
the Court, the inapplicability of Article 83 of the Rules would not, in
my view, conclude the matter. I am of the opinion that Article 83 of the
Rules sets out one situation in which Article 31 of the Statute shall
apply, but it does not exhaust the cases in which a judge ad hoc may be
chosen in advisory proceedings, nor does it limit the Court’s discretion
under Article 68 of the Statute to be guided by the provisions of Article
31 of the Statute “to the extent to which [the Court] recognizes them to
be applicable”.

The objection to the exercise of the Court’s discretion in favour of
the choice of a judge ad hoc on the grounds that Article 31 of the Statute
refers to “parties”, and there are, strictly, no “parties” in advisory
proceedings, does not seem to me to be a valid one, in view of the pro-
visions of Article 83 of the Rules of Court which expressly applies
Article 31 of the Statute to advisory opinions, and thus recognizes that
though there are no parties in advisory proceedings, judges ad hoc
may be chosen in those proceedings in the circumstances therein defined.
The Court’s discretion would be without substance if it could not be
exercised in favour of permitting the choice of a judge ad hoc in cir-
cumstances falling outside Article 83 of the Rules, but in which the
Court felt that the justice of the case required it to be so exercised.

This is the first occasion, since the creation of this Court, that a claim
to a right to appoint a judge ad hoc in advisory proceedings has been
made. The present request for an advisory opinion starts off by implying
that South Africa’s continued presence in Namibia notwithstanding
Security Council resolution 276 (1970) gives rise to certain legal con-

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sequences for States, since that presence is assumed to be contrary to
international law. The records of the debate in the Ad Hoc Committee of
the Security Council as well as in the Security Council itself leading up to
the request, and some of the submissions addressed to the Court in the
written statements and during the oral proceedings, leave no doubt that
South Africa was being accused of violating some, at least, of its inter-
national obligations; and at the root of the request was the desire to
enforce the consequences of the termination of South Africa’s mandate
over South West Africa, and remove its administration from the Terri-
tory.

These facts clearly show that special interests of vital concern to
South Africa were directly affected by the request for an advisory opinion
and this is, in my view, a circumstance which the Court should have
taken into account in deciding whether, in the exercise of its discretion
under Article 68 of the Statute, South Africa should have been permitted
to choose a judge ad hoc.

T am of the opinion that the circumstance of South Africa’s special
interest in the present request should have prevailed with the Court, and,
so that justice may not only be done but manifestly be seen to be done,
the discretion of the Court should have been exercised in favour of the
application by South Africa to choose a judge ad hoc.

I have not overlooked the fact that in the Advisory Opinion on an
abstract legal question on the Jnternational Status of South West Africa
in 1950, South Africa did not press her tentative enquiries about her
right to choose a judge ad hoc to the point of a formal claim, nor that
in that Advisory Opinion South Africa did not choose a judge ad hoc.
The circumstances of those proceedings and the present, and the legal
questions on which the advice of the Court was requested in the two
proceedings, are entirely different, and it does not appear to me that
any conclusions adverse to the application in the present case can rightly
be drawn from the failure of South Africa to press its claim to a judge
ad hoc in 1950, or the fact that no judge ad hoc was, in fact, chosen.
Nothing that happened in this respect in 1950 can be a bar to an applica-
tion to choose a judge ad hoc in later advisory proceedings, and such an
application must be considered in the light of the nature of the legal
questions put to the Court and the circumstances existing when the
application is made.

The practice of the Permanent Court of International Justice in the
matter of a choice of a judge ad hoc in advisory opinions as appears in
the Danzig Legislative Decree Order of 31 October 1935 ! does not seem
to me to furnish a guide in the present case ir view of the wholly different
nature of the question posed in that case, and the differences between the
governing Statutes and Rules of the two Courts. The Permanent Court

1P.C.I.J., Series A/B, No. 65, Annex 1, pp. 69-71.
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had, in 1935, nothing in its Statute in force equivalent to Article 68 of the
Statute of the Court which, to my mind, is the controlling provision
having a bearing on the point of the Court’s discretion in the matter
under consideration.

In view of the binding decision of the Court, by a majority vote, to
refuse the application for a judge ad hoc in the present proceedings, it
becomes inutile to consider the question of the composition of the Court
in this connection.

*
* *

Underlying the resolutions of the Security Council pertaining to
Namibia and concerning the legal question upon which the Court’s
advisory opinion is requested, is General Assembly resolution 2145 (XXI)
of 27 October 1966, by which the General Assembly decided that “the
Mandate conferred upon His Britannic Majesty to be exercised on his
behalf by the Government of the Union of South Africa is . . . terminated,
that South Africa has no other right to administer the Territory and that
henceforth South West Africa comes under the direct responsibility of the
United Nations”.

In the debate in the Security Council following on the report of the
Ad Hoc Sub-Committee which had been set up by Security Council
resolution 276 (1970), the representative of Nepal, in speaking on the
draft resolution that the Security Council request this Court to give an
advisory opinion on the question which finally came before it, said:

“In voting in favour of the draft resolution, it will be our under-
standing that the International Court limit the scope of its advisory
opinion strictly to the question put to it, and not review or examine
the legality or validity of the resolutions adopted by both the General
Assembly and the Security Council.”

The representative of Syria said:

“The International Court of Justice, as we see from the draft
resolution, is not asked to rule on the status of Namibia as such;
rather it is requested to elicit the scope of legal means at the disposal
of States, which may erect a wall of legal opposition to the occupa-
tion of Namibia by the Government of South Africa.”

In stating the attitude of the delegation of Zambia to the draft resolution,

the representative of Zambia said, inter alia:

“We have had to take into account the following considerations:

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(c) That the legal drafting of the question to be put to the Court
is specific enough to elicit a clear opinion from the Court which
would be politically acceptable;

(d) That there is some concern on our part that the Court may
raise in its opinion doubts about General Assembly resolution
2145 (XXD and about General Assembly resolution 2248
(S-V).”

A move to delete the words ‘‘notwithstanding Security Council
resolution 276 (1970)” in the draft resolution failed, and the resolution
to request an advisory opinion from the Court was eventually passed.

In explaining the vote of the French delegation on the different resolu-
tions, the French representative said, inter alia:

“...we were much interested in the initiative taken by the repre-
sentative of Finland to request an advisory opinion on the question
from the International Court of Justice. Of course, the—in our
view—imperfect language of the request to the International Court
may be a matter of regret. Without prejudging the opinion of the
Court, it might be appropriate to leave it to the Judges at The Hague
to question the legal foundations of the revocation of the Mandate.”

The representative of the United Kingdom explained the attitude of his
delegation thus:

“In the ad hoc Sub-Committee the United Kingdom representative
made it clear that my Government was quite willing to consider a
request for an advisory opinion from the International Court of
Justice. He did, however, add that our support for this depended
upon the submission to the International Court of the issue of the
status of South West Africa as a whole. The question before us does
not appear to do this.”

In some of the written statements submitted to the Court in the present
proceedings and during the oral hearing, views were expressed which
tended to deny that the Court could properly examine and pronounce
upon the validity of resolutions of the General Assembly and the Security
Council which bear upon the question put to the Court and whose
examination would be relevant to the proper elucidation of the problem.

. The Secretary-General in his written statement said:

“12. It has been shown that in formulating the question now
before the Court, the Security Council used the phrase ‘the continued
presence of South Africa in Namibia, notwithstanding Security
Council resolution 276 (1970) in order to denote the presence of
South Africa after the Mandate had terminated and South Africa
had ceased to have any right to be present as mandatory Power.”

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It would be tedious to reproduce here all the written and oral sub-
missions made to the Court and tending in the direction of confining
the Court to an uncritical acceptance of the correctness in law of resolu-
tions and decisions of the General Assembly and the Security Council
directly relevant to the question upon which the Court’s opinion is
requested, and it suffices to say that a number of representatives urged
this view upon the Court. The Court had therefore to decide whether
it was competent or not to examine resolutions and decisions of the
General Assembly and the Security Council relevant to the question
- before it, with a view to determining their accordance with the Charter
of the United Nations, and, therefore, their validity.

In dealing with this matter the Court said:

“89. Undoubtedly, the Court does not possess powers of judicial
review or appeal in respect of the decisions taken by the United
Nations organs concerned. The question of the validity or con-
formity with the Charter of General Assembly resolution 2145
{XXT) or of related Security Council resolutions does not form
the subject of the request for advisory opinion. However, in the
exercise of its judicial function and since objections have been
advanced the Court, in the course of its reasoning, will consider
these objections before determining any legal consequences arising
from these resolutions.”

I do not think that this approach to the question of the Court’s competence
to examine and pass upon decisions and resolutions of the General
Assembly and the Security Council which touch upon issues before it
leads to a sufficiently definitive answer.

The Court was established as the principal judicial organ of the
United Nations, and, as such, adjudicates upon disputes between States
when such disputes are properly brought within its jurisdiction. It
is authorized by the Charter and the Statute of the Court to render
advisory opinions on legal questions to the General Assembly, the
Security Council and other organs of the United Nations and specialized
agencies.

In exercising its functions the Court is wholly independent of the
other organs of the United Nations and is in no way obliged or concerned
to render a judgment or opinion which would be “politically acceptable”.
Its function is, in the words of Article 38 of the Statute, “‘to decide in
accordance with international law”.

The Court’s powers are clearly defined by the Statute, and do not
include powers to review decisions of other organs of the United Nations;
but when, as in the present proceedings, such decisions bear upon a case
properly before the Court, and a correct judgment or opinion could not
be rendered without determining the validity of such decisions, the Court

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could not possibly avoid such a determination without abdicating its
role of a judicial organ.

The question put to the Court does not, in terms, ask the Court to
give an opinion on whether General Assembly resolution 2145 (XX) is
valid, but the “legal consequences” which the Court is requested to
define, are postulated upon its validity. Were the Court to accept this
postulate without examination, it would run the risk of rendering an
opinion based on a false premise. The question itself has not expressly
excluded examination of the validity of this and other related resolutions;
and, as this Court had in the past modified and interpreted questions
put to it, it cannot be assumed that the Security Council intended to
fetter the Court in its considerations of the question on which it had
itself requested an advisory opinion; it would require the clearest in-
hibiting words to establish that such a limitation of the scope of the
Court’s consideration was intended.

I do not conceive it as compatible with the judicial function that the
Court will proceed to state the consequences of acts whose validity is
assumed, without itself testing the lawfulness of the origin of those acts.
I am therefore of the view that, whether an objection had been raised
or not, the Court had a duty to examine General Assembly resolution
2145 (XXI) with a view to ascertaining its legal value; it had an equal
duty to examine all relevant resolutions of the Security Council for the
same purpose.

I can find nothing in the wording of the present request which excludes
consideration of the validity of all pertinent resolutions. The words
“notwithstanding Security Council resolution 276 (1970) appear to me
to indicate that the Security Council has assumed that resolution 276
(1970) validly created a situation in which South Africa’s continued
presence in Namibia gives rise to legal consequences for States; but, in
my view, those words do not oblige the Court to make the same assump-
tions or to accept their correctness without examination.

The matter is, in my view, concluded by the principle stated by the
Court in the Certain Expenses of the United Nations case U.C.J. Reports
1962, p. 151 at p. 157) as follows:

“.. the Court must have full liberty to consider all relevant data
available to it in forming an opinion on a question posed to it for an
advisory opinion” (italics added).

Where the question put to the Court is in such terms that the Court
could not properly perform its judicial function of a thorough considera-
tion of all relevant data, or where for any other reason the Court is not
permitted the full liberty it is entitled to in considering a question posed
to it, the Court’s discretion to render or withhold an opinion would
protect the Court from the danger of rendering an opinion based on,

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conceivably, false assumptions or incomplete data.

I conclude that in the present request, the Court had a duty to examine
all General Assembly and Security Council resolutions which are relevant
to the question posed to it, whether objections had been taken to them
or not, in order to determine their validity and effect, and so that the
Court can arrive at a satisfactory opinion.

*
* *

This Court, in the Advisory Opinions rendered in 1950, 1955 and 1956
on South West Africa and in the Judgment on 21 December 1962 in the
first phase of the cases between Ethiopia and Liberia and South Africa,
established that the Mandate over South West Africa survived the disso-
lution of the League of Nations, and that supervisory functions over the
administration of the Mandate devolved upon the United Nations. It
also established the continuance of the obligation which rested on South
Africa to submit reports on its administration of the mandated territory
to the General Assembly.

The question whether the League of Nations could unilaterally
terminate or revoke the mandate against the will of the mandatory
Power did not arise as a practical problem during the subsistence of
the League, but members of the Permanent Mandates Commission and a
number of international jurists who examined the matter as a theoretical
question, did not doubt that if a mandatory was guilty of gross and
repeated violations of the mandate, the League could revoke the mandate.

It was said that revocation went to the essence of control, and the
view was expressed that the power of the League to appoint a new manda-
tory in case one of the existing mandatories should cease to function,
and to dismiss a mandatory, may be implied from the Covenant assertion
that the mandatories act “on behalf of the League”. (See Quincy Wright,
Mandates Under the League of Nations, 1930, pp. 440-441.)

The Institute of International Law at its Cambridge session in 1931
debated the question of mandates and passed a resolution containing
the following clauses among others:

“The functions of the mandatory State end by renunciation or
revocation of the mandate: by the customary modes of ending
international engagements; also by the abrogation of the mandate,
and by the recognition of the independence of the community
which has been under mandate.

The renunciation takes effect only from the date fixed by the
Council of the League of Nations in order to avoid any interruption
of the assistance to be given to the community under mandate.

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The revocation of the mandatory State and the abrogation of the
mandate are determined by the Council of the League of Nations ...”

In the face of the strong current of opinion among international
jurists, and from the common sense of the matter, it seems to me that
there can be no doubt that the League of Nations, acting through the
Council, had, as a necessary part of its supervisory powers, the power
unilaterally to revoke or terminate a mandate which was being adminis-
tered on its behalf, when the State entrusted with the mandate was guilty
of a serious breach of its obligations under the mandate.

A contrary view would involve the suggestion that a mandate, particu-
larly a class ‘““C’’ Mandate such as the one with which the present question
is concerned, could never be revoked, and that, contrary to their
professed concern for the principles of non-annexation, the welfare of
the peoples of the mandated territory and the sacred trust of civilization,
the Principal Allied and Associated Powers and other Members of the
League of Nations, behind a façade of fair promises, had in reality
permitted the perpetual annexation of the mandated territories and the
subjection of their peoples to the arbitrary rule of the mandatory Power
without hope of deliverance or future self-determination. The “sacred
trust of civilisation” would, on this view, have no meaning at all. The
actual historical development of the mandate régime in the days of the
League and subsequent to 1946 does not support this view, and it ought
therefore to be rejected.

This Court in its Advisory Opinion on the International Status of
South West Africa, and for the reasons stated in that Opinion, arrived
at the conclusion:

“*.,. that the General Assembly of the United Nations is legally
qualified to exercise the supervisory functions previously exercised
by the League of Nations with regard to the administration of the
Territory, and that the Union of South Africa is under an obligation
to submit to supervision and control of the General Assembly and
to render annual reports to it”. (L.C.J. Reports 1950, p. 128 at p. 137.)

The devolution of the supervisory powers of the League Council on
the-General Assembly of the United Nations vested the General Assembly
with the rights, duties and obligations appurtenant to those powers,
including the power unilaterally to terminate or revoke the Mandate
on the grounds of gross violations by the mandatory Power.

This is a power which the General Assembly possesses by reason of
its control of the Mandate and is, in my view, a power sui generis, not
limited by Article 10 of the Charter.

Tt follows that when the Assembly passed the resolution 2145 (XXf)
the competent organ of the United Nations terminated the Mandate in a
binding way, and that South Africa, thereafter, had no right to administer

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the Territory of South West Africa. The decision of the General Assembly
was brought to the attention of the Security Council but, in my view, it
was then already an effective and binding decision.

It seems to me that the legal consequences for States flowed from
South Africa’s failure to carry out resolution 2145 (XXT) and vacate the
Territory, and its continued presence in the Territory against the will of
the United Nations, and not from resolution 276 (1970) which was not
the means of putting an end to South Africa’s administration of the
Mandate. The provisions of resolution 276 (1970) capable of giving rise
to legal obligations are operative paragraphs 2 and 5 and are as follows:

“The Security Council

2. Declares that the continued presence of the South African
authorities in Namibia is illegal and that consequently all acts taken
by the Government of South Africa on behalf of or concerning
Namibia after the termination of the Mandate are illegal and
invalid;

5. Calls upon all States, particularly those which have economic
and other interests in Namibia, to refrain from any dealings with the
Government of South Africa which are inconsistent with operative
paragraph 2 of this resolution.”

The declaration of. the illegality of the continued presence of South
Africa in Namibia did not itself make such presence illegal; it was, in
my opinion, a statement of the Security Council’s assessment of the
legal quality of the situation created by South Africa’s failure to comply
with the General Assembly resolution—a statement not binding any
Member of the United Nations which held a different view. It was, in
effect, a judicial determination, and it is doubtful if any power exists in
the Charter for the Security Council to make such a determination
except in certain well-defined cases not relevant here. As paragraph 2
does not, in my view, create any binding legal obligations, it follows
that paragraph 5 is similarly ineffective for founding legal obligations
or creating legal consequences.

The matter, however, does not end there for resolution 276 (1970)
“reaffirmed” General Assembly resolution 2145 (XXII) of 27 October
1966, “by which the United Nations decided that the Mandate of South-
West Africa was terminated and assumed direct responsibility for the
territory until its independence”, and reaffirmed:

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‘... Security Council resolution 264 (1969) which recognized the
termination of the Mandate and called upon the Government of
South Africa immediately to withdraw its administration from the
Territory”. (See second and third preambular paragraphs of resolu-
tion 276 (1970).)

Jn this way the resolution incorporated General Assembly resolution
2145 (XxX).

The question before the Court can therefore be understood to request
an advisory opinion on the legal consequences to States of South Africa’s
continued presence in Namibia after the Mandate over South West
Africa had been duly terminated by the United Nations. In my view the
words “‘notwithstanding Security Council resolution 276 (1970) do not
affect the scope of the question.

The legal consequences for States in the case under consideration are
those which flow automatically, under international law, from the
unlawful continuation of South Africa’s presence in Namibia, and do
not, in my view, extend to enforcement measures which may or may not
be adopted by States individually, or the United Nations collectively, to
remove South Africa from the Territory or to assert the authority of the
United Nations over the Territory, in the absence of treaty provisions
or a customary rule of international law requiring such measures to be
adopted. These consequences are:

(1) South Africa is under a legal obligation to end its unlawful occupa-
tion by withdrawing from Namibia its presence and its administration,
but while it remains in the Territory it must act in conformity with its
obligations under the Mandate and the Charter.

(2) There is imposed on all other States an obligation of non-recogni-
tion; that is to say, all States are obliged not to recognize that South
Africa has any legal right to remain in Namibia or to maintain its adminis-
tration in that Territory. They are obliged to do nothing to aid the
continuance of the unlawful presence of South Africa or its administration
in the Territory of Namibia.

(3) If the Security Council decides to take action in the matter of
Namibia in discharge of its duties under its responsibility for the mainten-
ance of international peace and security, all Members of the United
Nations are obliged to accept and carry out any decisions which may be
made in accordance with the Charter; but although the decision of the Se-
curity Council to take such action may be a consequence of the continued
presence of South Africa in Namibia, the obligation to accept and carry
out the decision is an obligation States incur as a consequence of member-
ship of the United Nations, and not, directly, as a legal consequence for
them of South Africa’s continued presence in Namibia. It is for this
reason that I consider that the Court cannot particularize legal conse-

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quences for States and that it must be left to the Security Council to
decide on what enforcement action it should take under the Charter.

*
* *

I regret that I differ from the Court as to the scope of the doctrine
of non-recognition which, as I understand it, it was intended to reflect in
sub-paragraphs 2 and 3 of paragraph 133 of the Advisory Opinion. To
my regret I have been unable to vote affirmatively on sub-paragraphs 2
and 3. In my view, the effect of the doctrine in the context of the case in
hand is correctly set out in paragraph 119 of the Advisory Opinion, but
sub-paragraphs 2 and 3 of paragraph 133 of the Advisory Opinion
appear to me to attribute to the doctrine too wide a scope; and while I
agree that there is on States an obligation of non-recognition of the
legality of the presence of South Africa and of its administration in
Namibia, I do not agree that this obligation necessarily extends to refusing
to recognize the validity of South Africa’s acts on behalf of or concerning
Namibia in view of the fact that the administration of South Africa over
Namibia (illegal though it is) still constitutes the de facto government of
the Territory.

States which are not members of the United Nations incur no obliga-
tions to assist the Organization except as provided by Article 2, paragraph
6, of the Charter, and this Article places upon the Organization the onus
of ensuring that such States act in accordance with the principles set
out in Chapter I of the Charter.

(Signed) Charles D. ONYEAMA.

137


575

            DECLARATION OF PRESIDENT ABRAHAM

[English Original Text]

   1. I voted in favour of the present Judgment, in which the Court ﬁnds
that it cannot examine the merits of the Marshall Islands’ Application
against Pakistan, because I believe such a ﬁnding to be fully consistent
with the Court’s jurisprudence relating to the requirement for a “dispute”
to exist between the parties, as established by a series of Judgments
handed down in recent years, in particular the Judgment of 1 April 2011
in the case concerning Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), the Judgment of 20 July 2012 in the case concerning Ques-
tions relating to the Obligation to Prosecute or Extradite (Belgium v. Sen-
egal) and the Judgment of 17 March 2016 in the case concerning Alleged
Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia).
   2. In my view, that jurisprudence is clearly and accurately set out in
paragraphs 33 to 40 of the Judgment.
   3. It could be summarized in the following three propositions.
   First, the existence of a dispute between the parties to a case is not only
a condition for the exercise of the Court’s jurisdiction, but, more funda-
mentally, a condition for the very existence of that jurisdiction.

   Second — and this proposition largely follows on from the previous
one — in order to determine whether that condition has been met, the
date to be referred to is not that on which the Court delivers its judgment,
but the date of the institution of the proceedings, elements subsequent to
this latter date possibly allowing to conﬁrm the existence of the dispute,
but not to establish it.
   Finally, for the Court to ﬁnd that a dispute exists between the parties
on the relevant date, it is necessary for that dispute to have been revealed
by exchanges between the parties — in whatever form — prior to that
date, in circumstances such that each party was — or must have been —
aware that the views of the other party were opposed to its own. In par-
ticular, the respondent must not discover the existence of a claim against
it by the applicant in the document instituting proceedings; it has to have
been informed of it beforehand.

   4. In the past, it does not seem to me that the Court was always so
rigorous as regards the condition relating to the existence of a dispute.

  In truth, prior to 2011, the Court’s jurisprudence was not completely
unequivocal and it would certainly be possible to ﬁnd decisions going in

27

576        nuclear arms and disarmament (decl. abraham)

fairly varied directions. Nevertheless, a number of precedents that reﬂect
a more ﬂexible and pragmatic approach could be cited: I myself men-
tioned them in my separate opinion in the Georgia v. Russian Federation
case (Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), separate
opinion of Judge Abraham, p. 224).
   5. That more ﬂexible approach could be understood as being based on
the idea that the existence of a dispute was not, strictly speaking, a condi-
tion for the Court’s jurisdiction itself, but rather a condition for the Court’s
exercising of its jurisdiction; on the ensuing conclusion that it had to be
determined whether that condition was met on the date of the Court’s judg-
ment and that the date of the institution of proceedings was not particu-
larly relevant in this regard; and that, accordingly, since it was necessary
and suﬃcient for the dispute to exist on the date of the Court’s judgment,
the positions expressed by the parties in the actual course of the proceed-
ings had to be taken into account to the same extent as the exchanges that
had taken place between them — if any — before the proceedings started.
   6. In my view, the Court began to depart from this approach in its
Judgment in the Georgia v. Russian Federation case, which marks a shift,
albeit still an ambiguous one, with regard to the conditions that are nec-
essary in order to establish that a dispute exists.
   I expressed my concern, since I was not in favour of such a shift, in my
separate opinion appended to that Judgment (cited above).
   7. It was with its Judgment in the Belgium v. Senegal case (cited above)
that the Court clearly set the new course of its jurisprudence, by declaring
that it had no jurisdiction over one of Belgium’s claims (the one relating
to an alleged obligation of Senegal, under customary international law, to
prosecute or extradite Hissène Habré for “international crimes” other
than acts of torture). The reason given by the Court to justify its lack of
jurisdiction was that Belgium, in the protests it addressed to Senegal prior
to the institution of proceedings, had made no mention of any such legal
claim. Yet the positions on the merits adopted by the parties before the
Court made it clear that a dispute existed between them on the matter at
issue; the Court, however, declined to take those into account.

  8. I voted against the point in the operative part of the Belgium v. Sen-
egal Judgment in which the Court found that it lacked jurisdiction to
entertain the above-mentioned claim on the grounds that there was no
dispute between the parties with regard to the subject-matter of that claim
on the date the proceedings were instituted. In a separate opinion
appended to the Judgment (I.C.J. Reports 2012 (II), separate opinion of
Judge Abraham, p. 471), I explained the reasons for that vote, regretting
that the Court had not referred to the date of its own Judgment in order
to determine whether the condition was met, which would have led it to
form an opposite conclusion.
  9. I nonetheless take the view that even if a judge has expressed reser-
vations, or indeed his disagreement, at the time the Court established its
jurisprudence, once the Court has done so, he must consider himself to be

28

577        nuclear arms and disarmament (decl. abraham)

bound by it thereafter (not legally, of course, but morally), just as much
as if he had agreed with it.
  10. It is indeed a judicial imperative which the Court has always recog-
nized, and which in my view is incumbent upon all its Members, that it
must be highly consistent in its jurisprudence, both in the interest of legal
security and to avoid any suspicion of arbitrariness.

   11. It is true that precedent is not inviolate, and that the Court always
has the power to change course or overturn its jurisprudence if, excep-
tionally, it considers that there are compelling reasons to do so, for exam-
ple because of a change in the general context surrounding some
particular judicial solution.
   12. I am not sure that the Court was right, with its Georgia v. Russian
Federation and especially Belgium v. Senegal Judgments, to make a sig-
niﬁcant change to its earlier approach to the condition relating to the
existence of a dispute. But given that it did so by adopting a clear and
well-considered solution, there would be no justiﬁcation, to my mind, for
it to depart from that course now.
   13. That is why, in the Nicaragua v. Colombia case (cited above), I
joined with the majority (in that regard, the unanimity) in voting in
favour of point (1) (c) of the operative clause, which applied the same
criteria as in the Belgium v. Senegal Judgment.
   And I also agree with the Judgment in the present case in that it is
strictly applying those criteria.
   14. As regards the application in this case of the — now settled —
jurisprudence relating to the existence of a dispute on the date of the insti-
tution of proceedings, it is my view that, for the reasons set out in
paragraphs 42 to 53 of the Judgment, it has not been demonstrated that
a dispute had clearly manifested itself between the Parties, on the relevant
date, on the question forming the subject-matter of the Application sub-
mitted to the Court by the Marshall Islands.

                                             (Signed) Ronny Abraham.

29


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 [ 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 [, like my colleague Judge Ignacio-Pinto, share the view
expressed by our colleagues Judges Gros and Onyeama in their dissenting
opinions, to which L 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 inter-
national 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 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 [celand 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.

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FISHERIES JURISDICTION (DISS. OP. PETREN) 151

In short, the operative paragraph does not give any reply to the primor-
dial 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 clarifica-
tion 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 in-
herently 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 regula-
tion, in the waters adjacent to the fishery zone and in a framework of
agreed conservation measures, of the relationships between the preferen-
tial 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

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FISHERIES JURISDICTION (DISS. OP. PETREN) 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 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 King-
dom 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

153
FISHERIES JURISDICTION (DISS. OP. PETREN) 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 impor-
tance 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-a-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 answer this question in the affirmative could have
the result of preventing Iceland, through long years of judicial proceed-
ings, 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

154
FISHERIES JURISDICTION (DISS. OP. PETREN) 154

present Judgment then have the effect of prohibiting Iceland from pro-
ceeding, without waiting for a new judgment of the Court, and with
effect vis-a-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 inter-
pretation 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 régime 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 under-
take 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-a-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 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

155
FISHERIES JURISDICTION (DISS. OP. PETREN) 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 Govern-
ment’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

156
FISHERIES JURISDICTION (DISS. OP. PETREN) 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-a-vis the
Court: would he not have appeared to be recognizing the continuing,
validity of the 1961 Exchange of Notes? (Alpingistidindi Umræëur 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 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

157
FISHERIES JURISDICTION (DISS. OP. PETREN) 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 agree-
ment, 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 condi-
tions 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 Ice-
land, 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 recog-
nizes 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 inter-
national 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 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

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FISHERIES JURISDICTION (DISS. OP. PETREN) 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 judg-
ment 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
stituation 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 ts 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 impossibi-
lity 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 Appli-
cation does not request the Court to interpret a treaty of immutable

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FISHERIES JURISDICTION (DISS. OP. PETREN) 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 juris-
dictional clause of the 1961 Exchange of Notes, and as that clause con-
cerns only the question whether a future extension by Iceland of its
zone of exclusive fisheries jurisdiction would be in conformity with inter-
national 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 sub-
stantive dispute. In the absence of such a settlement, the termination
of this agreement will not affect the legal position of either Govern-
ment 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

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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 con-
tinue 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, | personally find inescapable.

*
* 2

For all these reasons, I consider that the Application of the United
Kingdom is without object with regard both to the period from 13 No-
vember 1973 to 13 November 1975 and to the subsequent period.

*
* *

There remains the period between the putting into effect of the Icelan-
dic 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 1s it necessary to consider
whether Iceland’s extension of its fishery zone was from the beginning,
and subsequently remained, contrary to international law. It was, more-
over, 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.

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FISHERIES JURISDICTION (DISS. OP. PETREN) 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 Con-
ferences 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 pro-
claiming the extension of their territorial waters or by claiming fishery
zones beyond those waters, have claimed an exclusive fisheries juris-
diction 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
(XXVIII) 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 proceed-
ings, differs on one fundamental point from the Geneva Convention on
the Continental Shelf, whose provisions are generally regarded as codi-
fying the law accepted around 1958: the Convention does not attribute
to the coastal State any exclusive fishing rights with regard to fish swim-
ming 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

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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 resolu-
tion must truly have envisaged and accepted the possibility of its imme-
diately acquiring binding force. But the complexity of the circumstances
in which resolution 3016 (XXVII) was adopted, the statements accom-
panying 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 conferring on the coastal State exclusive fisheries juris-
diction 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 imple-
mentation 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 inter-
national law vis-à-vis the United Kingdom. In the light of the consider-
ations 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 auto-
matically 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 | 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

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FISHERIES JURISDICTION (DISS. OP. PETREN) 163

of the United Kingdom and studiously avoids pronouncing upon the
only question in respect of which the 1961 agreement conferred juris-
diction 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 Judg-
ment in its entirety.

(Signed) S. PETREN.

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