553

DISSENTING OPINION OF JUDGE RANJEVA

[Translation]

Summary — Risk of jeopardizing the optional clause system — Distortion of
the subject-matter of the main dispute.

Subject-matter of the dispute — Judicial restatement of the subject of the dis-
pute as submitted by Respondent constitutes an action ultra petita.

Lack of relevance of the case-law relied on by the Judgment — Interpretation
of the subject of the dispute by reference to the act of seisin — Absence of legal
grounds for restatement of the subject of the dispute submitted in the Applica-
tion — Article 40, paragraph 1, of the Statute of the International Court of
Justice — Obligation on the Court to respect the integrity of the petitum —
Claims on the merits and objections to jurisdiction — Legal impossibility of
defining the final subject of the substantive dispute.

Distinction between real dispute and arguments or purported submissions to
be operated at the final phase of the proceedings — Difficulty of ruling on the
causa petendi — Preliminary proceedings and status of the subject of the dis-
pute.

Interpretation of the Canadian reservation —- Historical background to the
negotiations on the definition of “conservation and management measures”
under the 1995 Agreement — Canada co-author of the first proposed amend-
ment incorporating the reference to international law for the purpose of defining
conservation and management measures — Acceptance and scope of the amend-
ment co-sponsored by Canada — Analysis of the concept of “conservation and
management measures” — Absence of any international practice inconsistent
with the requirements of Article I (b) of the 1995 Agreement.

Twofold purpose of the reference in the definition of “conservation and man-
agement measures” to the 1982 Convention: legality element relevant both at
merits stage and for purposes of definition in the preliminary phase — Role of
law in the general legal definition of a concept — Reference to international law
in the definition of terms used in a unilateral instrument — Dual nature of the
unilateral act of reservation — Network of jurisdictional links between the
parties to the optional clause — Acceptance when filing the Application of the
conditions stipulated by the author of the reservation — Creation of conven-
tional relations between Respondent and Applicant — International law as com-
mon frame of reference for the two litigating parties.

Question raised in the context of the preliminary dispute? Respondent's
objection not specifically preliminary in character.

The esteem in which I hold the Court and my colleagues and the
requirements of a sound administration of international justice have led
me, to my great regret, to deliver a dissenting opinion, in which I give the
reasons for my negative vote on the operative part of the Judgment.

1. I sincerely hope that the present Judgment by the Court will not be
interpreted by commentators and readers as sounding the death-knell of
the optional clause system under Article 36, paragraph 2, of the Statute

125
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 554

of the International Court of Justice. The approach adopted by the Judg-
ment is open to criticism and could damage the integrity of the system of
international jurisdiction, which is built on a consensual foundation.

2. In the first place, it would have been more appropriate in my
opinion, as far as the subject of the dispute was concerned, to have omit-
ted certain lengthy, autonomous arguments which have resulted in the
nature of the subject-matter of the substantive dispute being changed: in
effect, in place of the subject as it was defined by the Applicant, the Judg-
ment has substituted a different subject, without the support of relevant
case-law. To my mind, it mattered little whether the subject of the dispute
was interpreted broadly as the Applicant wished, or narrowly as the
Respondent contended; what needed to be determined at the preliminary
stage was whether or not the dispute came within the terms of the reser-
vation formulated in the declaration by the respondent Party.

3. In the second place, the respondent Party’s interpretation of the res-
ervation is plainly unacceptable in so far as, even for preliminary pur-
poses, it confines its definition of “conservation and management meas-
ures” to the material aspect, excluding any reference to the international
law component included in the definition of such measures in various rele-
vant treaty instruments; the definition of “conservation and management
measures” which is employed in the Judgment for purposes of the inter-
pretation of the Canadian reservation lacks an effective basis. The Judg-
ment invokes national practices, which are necessarily circumscribed by
the 200-mile area of sovereign jurisdiction; on the other hand, it is unable
to cite a single example of international practice inconsistent with the gen-
erally agreed definition of such measures and constituting an opinio juris.

I. SUBJECT OF THE DISPUTE

4. Contrary to the reasoning of the Court in paragraphs 29 to 33,
I consider that none of the case-law cited to justify a judicial restatement
of the subject of the dispute as presented by the Applicant is relevant.
The finding set out in paragraph 35 is without precedent in the Court’s
case-law: the Court has never declared itself competent to change the
subject-matter of a dispute, and if it had ever sought to do so, such a
decision would have been without legal foundation and ultra petita.

5. Although I consider this a subsidiary question for purposes of a
decision on the present preliminary issue, I consider it my duty to explain
why I am in disagreement, in view of the conclusions reached in the Judg-
ment on this point.

1. Lack of Relevance of the Case-law Cited

6. The Judgment cites a number of previous decisions of the Court to
justify its restatement of the subject of the dispute in relation to the sub-

126
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 555

ject of the substantive dispute as formulated by the Applicant. Analysis
of the precedents relied on shows that the conclusion reached in the Judg-
ment is open to question: there is no precedent which authorizes the
Court to change the nature or terms of the subject as defined by the
applicant; the Court has, according to the specific circumstances of indi-
vidual cases, adjusted the parameters of the dispute, but it has never sub-
stituted a new subject for that submitted by the applicant in the substan-
tive dispute. The Court has never before taken such a categorical stand as
in paragraph 29 of the Judgment, where it states that: “the Court cannot
be restricted to a consideration of the terms of the Application alone nor,
more generally, can it regard itself as bound by the claims of the Appli-
cant”. To facilitate understanding of the present paragraph, I shall follow
the order adopted by the Judgment.

(1) Territorial Dispute (Libyan Arab Jamahiriya/Chad)

7. The Court, contrary to what was stated in paragraph 29, was not
seised of a Special Agreement stricto sensu. The two Parties “agreed...
that the proceedings had in effect been instituted by two successive noti-
fications of the Special Agreement constituted by the Accord-Cadre of
31 August 1989” (C.J. Reports 1994, p. 11, para. 8). However, it had
been agreed between the two Parties to describe as territorial the dispute
between them over the Aouzou strip. The respective claims of the Parties
(concerning the size of the disputed area) were so divergent that the
Court was obliged to define the area in dispute.

“18. The Court has been seised of the present dispute between
Libya and Chad by the notifications of the special agreement con-
stituted by the Accord-Cadre of 31 August 1989 . . .The Accord-
Cadre described the dispute between the Parties as ‘their territorial
dispute’ but gave no further particularization of it, and it has become
apparent from the Parties’ pleadings and oral arguments that they
disagree as to the nature of the dispute . . .

19. Thus Libya proceeds on the basis that there is no existing
boundary, and asks the Court to determine one. Chad proceeds on
the basis that there is an existing boundary, and asks the Court to
declare what that boundary is. Libya considers that the case con-
cerns a dispute regarding attribution of territory, while in Chad’s
view it concerns a dispute over the location of a boundary.” (C.J.
Reports 1994, pp. 14-15.)

In reality, however, there was no substantial difference between the
Parties on the merits. Indeed, whether the dispute concerned the location
of the boundary or whether it concerned attribution of territory, the real
issue was to establish the precise limits of the territory of each of the two
States. The Court acknowledged in principle that that was the case.

127
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 556
(2) Nuclear Tests (New Zealand v. France)

8. In the Nuclear Tests cases, the Court held that it was entitled to
interpret the submissions of the Parties in order to ascertain the true sub-
ject of the dispute and the object and purpose of the claim, taking into
account not only the submissions of the Applicant, but the Application
as a whole, the arguments of the Applicant before the Court, the diplo-
matic exchanges brought to the Court’s attention and public statements
made on behalf of the applicant Government. “If these clearly circum-
scribe the object of the claim, the interpretation of the submissions must
necessarily be affected.”! The Court also made it clear that it had the
power

“to exclude, when necessary, certain contentions or arguments which
were advanced by a party as part of the submissions, but which were
regarded by the Court, not as indications of what the party was ask-
ing the Court to decide, but as reasons advanced why the Court
should decide in the sense contended for by that party” ?.

9. In the first Judgment, Australia v. France, the Court’s findings are
to be understood in the light of the following two points:

— as France failed to appear in the proceedings, the Court of its own
motion and on the basis of Article 53, paragraph 2, of its Statute, had
to satisfy itself that the submissions — that is to say the statements of
what the Applicant was asking it to decide — were correct in law and
in fact. There was an element of doubt in this regard, because the
submissions in the Application contained two separate paragraphs,
the second of which sought a declaration on the law;

— it was on the basis of the persistent conduct and consistent state-
ments of Australia, and nothing else, that the Court defined the sub-
ject-matter of the dispute, distinguishing between the Applicant’s
claims and the elements of the submission: contentions, arguments
and reasons.

10. In the second Judgment, New Zealand v. France, the terms of the
problem are apparently somewhat different, taking into account the spe-
cific nature of New Zealand’s submissions. The Judgment set out to ana-
lyse the entire subject-matter of the dispute, making a distinction between
the origin of the dispute and the original and ultimate objective in the
following passage:

“However, it is clear that the fons et origo of the dispute was the

! Nuclear Tests (Australia v. France), I C.J. Reports 1974, p. 263, para. 30, and
Nuclear Tests (New Zealand v. France}, p. 467, para. 31.

2 Nuclear. Tests (Australia v. France), 1 C.J. Reports 1974, p. 262, para. 29, and
Nuclear Tests (New Zealand v. France), pp. 466-467, para. 30.

128
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 557

atmospheric nuclear tests conducted by France in the South Pacific
region, and that the original and ultimate objective of the Applicant
was and has remained to obtain a termination of those tests.” (C.J.
Reports 1974, p. 467, para. 31; emphasis added.)

It is thus on the basis of the continuity and consistency of the attitude
and claims of the applicant Party that the Court founded its interpreta-
tion of the subject of the dispute, without, however, going so far as to
restate the original subject. The Judgment interpreted the submissions of
New Zealand as formulated in the Application, confirmed by the con-
stant and consistent conduct of the Applicant and finalized in the sub-
missions.

(3) Right of Passage over Indian Territory

11. In this case, the Court, in order to avoid being misled by a passage
in the Application entitled “Subject of the Dispute”, which gave a restric-
tive description of the subject-matter of the dispute, defined the subject-
matter by recapitulating the various claims already formulated in the
Application, the oral arguments and the submissions of the Parties.

(4) Maritime Delimitation and Territorial Questions between Qatar
and Bahrain

12. By agreement between the Parties, the subject of the dispute had
been defined in accordance with the “Bahraini” formula; Qatar, which
had seised the Court by application, presenting only its own claims, was
not thereby deprived of its procedural rights, notwithstanding that it had
failed to submit the dispute in its entirety; in an interlocutory Judgment,
the Parties were requested to present the subject of the dispute in its
entirety. In that case, the Court confirmed that the dispute submitted by
Qatar on 30 November 1994 was in exact conformity with the previous
agreements and decisions.

“As a consequence, it appears that the form of words used by
Qatar accurately described the subject of the dispute. In the circum-
stances, the Court, while regretting that no agreement could be
reached between the Parties as to how it should be presented, con-
cludes that it is now seised of the whole of the dispute, and that the
Application of Qatar is admissible.” (1 CJ. Reports 1995, p. 25,
para. 48.)

It is thus clear, on the one hand, that the jurisprudence cited deals with
the interpretation of the subject of the dispute by reference to the terms
used in the act of seisin and, on the other hand, that such interpretation
has consisted in defining that subject in its entirety, without thereby
restating its terms.

129
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 558

2, Absence of Legal Grounds for a Restatement by the Court of the
Subject of the Dispute Submitted to the Court by the Applicant

Neither Article 40, paragraph 1, of the Statute nor the incidental
nature of preliminary proceedings authorizes the Court to restate the
subject of the dispute.

(1) The provisions of Article 40, paragraph 1, are unambiguous

13. (a) The indication of the subject of the dispute in the document
instituting proceedings is a direct requirement under the Statute. This
requirement is independent of the means used to initiate the proceedings.
The most cogent interpretation of the notion of the subject of the dispute
is provided in two passages of the work by Stauffenberg, where he deals
with the notion of the subject of the dispute in relation to the text of
Article 40 of the Statute of the Permanent Court of International
Justice:

“This application determines the subject of the dispute. It was felt

that the word ‘subject’, a legal term, should be used as being more
precise and more useful, from the point of view of the res judicata,
than the term ‘nature’ used in Article 30 of the five-Power plan”
(Report of the Advisory Committee of Jurists, p. 734, and Statut et
Règlement de la Cour permanente de Justice internationale —
éléments d'interprétation, Carl Heymanns Verlag, Berlin 1934,
p. 294);
“at the preliminary session, the deletion of the words ‘an indication
of the claim’ was proposed. They were deemed either redundant,
since reference was already made to an indication of the subject of
the dispute, or erroneous, since there were cases in which there was
no claim but simply a request for a statement of the law” (Statut et
Réglement de la Cour permanente de Justice internationale — élé-
ments d'interprétation, op. cit., p. 301).

The subject of the dispute is closely bound up with the “claim”, the peti-
tum, that is to say, the judicial recognition of a substantive right claimed
by the applicant party in a unilateral application.

14. (b) When proceedings are instituted by application, it is the appli-
cant who has the principal responsibility for defining the original subject
of the dispute. The petitum is formally set out in the application and con-
stitutes the only description of the subject of the dispute available to the
Court. As long as the respondent party has not itself formulated its
claims and its own petita on the merits, either in a counter-memorial
(Art. 43, para. 2, of the Statute) or by way of counter-claim (Art. 80,
Rules of Court), it is with the subject of the dispute as described in the
application that the Court must deal. Until it makes a definitive determi-

130
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 559

nation of the subject of the dispute, which it will do after the respondent
has filed its petita, the Court is bound to accept that it cannot change the
original subject of the substantive dispute: the Court can rule only on the
basis of that definition and may not alter its terms or, in particular, vio-
late the integrity of the petitum. In the exercise of its power to clarify
implicit claims, it is not entitled to modify the petitum of the applicant.
At the very most, it can find that there is no dispute on the subject as set
out in the application, or on certain aspects thereof; but in stating that
the real dispute is that presented in paragraph 35 of the Judgment, the
Court has altered the petitum of the Applicant and gone outside the
framework of the express terms of the Application, without attempting to
justify its reasoning on the basis of the actual actions and conduct of the
applicant Party. It is thus on the basis of an incomplete, and therefore
inaccurate, interpretation of the above-mentioned jurisprudence that the
Court reached the unacceptable conclusion that “more generally, [it
could not] regard itself as bound by the claims of the Applicant” (see
paragraph 29).

(2) It is the incidental character of preliminary proceedings on juris-
diction and admissibility which, through the operation of para-
graphs 5 and 6 of Article 79 of the Rules of Court, determines the
scope and extent of the relevant facts at the current stage of the
proceedings

15. The Respondent relies upon the acts against the Estai as argu-
ments and grounds to establish the Court’s lack of jurisdiction and the
inadmissibility of the Spanish Application. Those acts constitute neither
claims nor submissions on the merits; they are invoked in order to have
the substantive claim dismissed without consideration of the merits of the
dispute, by means of a challenge to the Court’s power to adjudicate upon
the dispute submitted to it.

16. Not having before it the Respondent’s petita on the merits, or its
submissions in defence, the Court cannot, at this stage, make a final
determination as to the subject of the dispute. At the present stage of the
proceedings, it is the combined effect of the substantive claim and the
Respondent’s objection which determines the subject of the preliminary
dispute; the latter dispute is both distinct from and incidental to the sub-
stantive dispute; this determination of the subject-matter is carried out
solely for the purpose of settling the preliminary dispute pursuant to Ar-
ticle 79, paragraph 7, of the Rules of Court. Here, the Court has before it
only one claim, that of the Applicant as expressed in the initial Applica-
tion. This statement of the subject of the substantive dispute remains
binding upon the Court, which cannot, without affecting the substance of
the dispute, restate the petitum of the Applicant. In this case, however,
the Court has redefined the subject, citing, in paragraph 32, a distinction
between “the [real] dispute . . . and arguments used by the parties to sus-
tain their respective submissions on the dispute”.

131
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 560

(3) Real dispute and arguments used to sustain the Parties’ submis-
sions (paragraph 32 of the Judgment)

17. On analysis, it is clear that the argument used in paragraph 32 to
justify the distinction between the real dispute and arguments used to sus-
tain submissions lacks probative force, having regard to the practice of
the Court and to the nature of the cause of action.

18. (a) It has been the consistent practice of the Court that the dis-
tinction between the real dispute and arguments, or between submissions
and purported submissions, is made at the final stage of the proceedings,
during consideration of the merits of the dispute or at the time of a pre-
liminary decision to terminate the proceedings. This practice is readily
explicable on grounds of common sense and procedural considerations.
Obviously, one cannot speak of a dispute, in the true sense of the term, as
long as only the unilateral claims on the merits of one of the parties, the
Applicant in this instance, have been placed before the Court. Moreover,
it is only once the subject of the dispute has been conclusively and fully
defined that it is possible to extract, from the mass or totality of con-
tested issues, the precise subject-matter of the litigation: the points of fact
and law submitted to the Court for decision; in effect, it is on the basis of
the subject of the dispute that the Court must determine the precise
points upon which it may adjudicate. In the two Nuclear Tests cases of
1974, the Court had to rule first on a question essentially preliminary in
character: whether or not a dispute existed. A decision that there was no
dispute would have made a ruling on jurisdiction pointless. The Court
distinguished true submissions from purported submissions by examining
the logical nexus between the Parties’ various formal submissions. In
those 1974 cases, in order to determine which of the submissions was not
a true submission, the Court had to consider the request for a declaratory
judgment in light of the subject of the substantive claim, which was the
cessation of atmospheric nuclear tests; it took the view that, in the cir-
cumstances of the case, that claim had been met. Having regard to the
substance of the claim, the request for a declaratory judgment was
rejected.

19. (b) In its exposition, in paragraph 34, of the relationship between
the factual and legal elements of the case, the Judgment stated what it
considered to be the cause or causes of Spain’s claim. On closer analysis,
however, the problem can be reduced to the following question: in order
to give a ruling on jurisdiction or admissibility, should consideration be
given to the reasons for the applicant’s claim? In reality, it is difficult to
determine precisely which of all the aforesaid elements would be capable
of supporting the claim brought by the applicant party, that is to say, the
causa petendi, when the adversarial proceedings on the merits have not
even commenced. This logical and procedural constraint explains why
possible causal links are discussed only in the context of the formal sub-
missions, these being the only definite data expressing the basic thinking
of the parties which can be known with certainty. In proceeding, at this

132
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 561

preliminary stage of the case, definitively to characterize the contentious
events and acts (see paragraph 34) in a manner at variance with that put
forward by the applicant Party in its Application, the Court changed the
Applicant’s petitum. That is unacceptable.

20. At the close of the preliminary proceedings, the situation with
regard to the subject of the dispute could be described in the following
terms. The Court had before it, on the one hand, the major component of
the subject-matter of the dispute as defined in the claim set out in the
Application and, on the other hand, a set of facts and actions constituted
by “diplomatic exchanges, public statements and. other pertinent evi-
dence” and relied on to support an objection by the respondent Party (see
paragraph 31 of the Judgment). On the basis of this information, the
Court, in its Judgment, reached a finding which encompassed the dispute
in its entirety. However, as the final outcome of the proceedings in this
case was the definitive rejection of Spain’s claim, the Judgment must be
considered to have examined the claim in terms of all possible characteri-
zations and hypotheses. This is not what it did here; instead, the Court
restated the subject-matter of the dispute proprio motu, without having
completed its preliminary examination of all possible hypotheses.

It follows that, in restating the subject of the dispute by comparison
with that set out in the Application, the Court ruled ultra petita.

21. In concluding this first section, I should like to draw attention to
the risks inherent in a decision of this kind:

(1) abandonment of the Court as a judicial forum, since there would be
no guarantee for States against the risk of a restatement, at the pre-
liminary stage, of the subject of disputes submitted by them to the
Court;

(2) uncertainty as to the consequences for the rights of the litigating
parties: what, for example, is the measure of the res judicata in this
case?

IL. INTERPRETATION OF THE CANADIAN RESERVATION

In interpreting the Canadian reservation, the Court proprio motu
defined the Canadian legislative measures as measures for the protection
and management of fisheries resources. The real issue to be determined is
whether that definition is adequate from the standpoint of international
law.

1. Method of Interpretation of the Definition of “Conservation and
Management Measures”

22. The method followed by the Court in interpreting the reservation
clause was to give priority to the intention of Canada, which is perfectly
proper provided that intention is placed in the context of the system of

133
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 562

optional declarations of acceptance of compulsory jurisdiction. In order
to do that, the Court accepted as correct in law the definition and inter-
pretation presented by the author of the reservation, notwithstanding the
various other legal instruments to which the two litigating States are inter
alia parties. At this stage in the proceedings, the task of the Court was
not to establish a prima facie definition of conservation measures, but to
ascertain whether all the conditions for what Canada characterizes as
conservation and management measures are satisfied.

23. Paragraph 70 of the Judgment restricts the definition of “conserva-
tion and management measures” to their technical and factual dimen-
sion, resulting in the Court giving its own definition, one at variance with
that expressly provided in the only two directly relevant international
instruments: the United Nations Agreement on Straddling Stocks of
1995 and the FAO Agreement to Promote Compliance with Interna-
tional Conservation and Management Measures by Fishing Vessels on
the High Seas. This approach is unacceptable: the Court did not confine
itself to interpreting positive law, but created law.

2. International Instruments Containing a Definition of Conservation
and Management Measures

(1) Historical background to the 1995 Straddling Stocks Agreement

24. The relevant international provisions are constituted by Article 1

— of the Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10 December
1982 Relating to the Conservation and Management of Straddling
Fish Stocks and Highly Migratory Fish Stocks, hereinafter “the
United Nations Straddling Stocks Agreement of 1995”;

— and of the Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels on the
High Seas, hereinafter “the FAO Fishing Vessels Agreement of 1993”.

Article 1 of each of these instruments, which contains definitions, pro-
vides respectively as follows:

(a) United Nations Straddling Stocks Agreement of 1995:

““conservation and management measures’ means measures to con-
serve and manage one or more species of living marine resources
that are adopted and applied consistent with the relevant rules of
international law as reflected in the Convention and this Agree-
ment”.

134
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 563

(b) FAO Fishing Vessels Agreement of 1993:

“international conservation and management measures’ means
measures to conserve or manage one or more species of living
marine resources that are adopted and applied in accordance with
the relevant rules of international law as reflected in the 1982 United
Nations Convention on the Law of the Sea. Such measures may
be adopted either by global, regional or subregional . . . organiza-
tions . .. or by treaties or other international agreements”.

25. A comparative examination of these two provisions is not without
interest in several respects. Jn the first place, the decisive influence of the
1993 FAO Agreement on the Straddling Stocks Agreement when it came
to deciding whether to include the legal component in the definition. The
relevant law, as reflected in the 1982 Montego Bay Convention and in
each individual agreement containing a definition, is an intrinsic part of
the definition. Secondly, both agreements are treaty instruments for the
implementation of the 1982 Convention on the Law of the Sea. Finally,
although neither instrument was yet in force at the date of the present
Judgment, both Canada and Spain are parties to the Straddling Stocks
Agreement, having signed it on 4 December 1995 and 3 December 1996
respectively.

26. A review of the drafting history of Article 1 (b) of the Straddling
Stocks Agreement reveals the importance of the role played by Canada in
securing the express recognition, in the future agreement, of international
law as a component of the legal definition of “conservation and manage-
ment measures”. On 14 July 1993, Canada was co-author of the first pro-
posed amendment, which provided for the inclusion of international law
as a component of the definition of “conservation and management
measures”. The initial version of the draft Convention (A/CONF.164/
L.22), presented at the fourth session, contained no provision defining
“conservation and management measures”. It was on 14 July 1993, in
proposal A/CONF.164/L.11, that the delegations of Argentina, Canada,
Chile, Iceland and New Zealand introduced the reference to international
law for purposes of the definition of “conservation and management
measures”, in the following terms:

“fa) ‘international conservation and management measures’ means
measures to conserve or manage one or more straddling fish
stocks or highly migratory fish stocks on the high seas that are
adopted and applied in accordance with the principles of inter-
national law as reflected in the United Nations Convention on
the Law of the Sea and, in particular, such measures adopted
or approved by regional or subregional fisheries conservation
organizations or under regional fisheries conservation
arrangements”.

135
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 564

The joint proposed amendment did not receive sufficient support to be
immediately included in the revised version of the draft; this reluctance
on the part of the negotiating conference explains why Japan pushed to
have the issue reopened, in March 1995, with the following formal
amendment:

“Article 1, paragraph 1.

Add the following subparagraphs to the Chairman’s text:

(c) ‘international conservation and management measures’ means
measures to conserve or manage one or more species of
straddling fish stock(s) and highly migratory fish stock(s) that
are adopted and applied in accordance with the relevant rules of
international law as reflected in the Convention. Such measures
may be adopted either by global, subregional or regional fish-
eries management organizations or arrangements, subject to the
rights and obligations of their members”.

(This subparagraph was drafted drawing on Article 1, para-
graph (b) of the FAO Compliance Agreement).” (Mimeographed
text with no symbol.)

27. Document A/CONF.164/CRP.6 dated 6 April 1995 includes for
the first time a positive-law definition of conservation and management
measures in Article 1 of the revised draft:

“(a) ‘conservation and management measures’ means measures to
conserve and manage one or more species of living marine
resources that are adopted and applied consistent with the
relevant rules of international law as reflected in the Conven-
tion and this Agreement”.

The final version followed the wording of the revised text
(doc. A/CONF.164/22/Rev.1), subject to a minor amendment, and ran as
follows:

“(a) ‘conservation and management measures’ means measures to
conserve or manage one or more species of living marine
resources that are adopted and applied consistent with the
relevant rules of international law as reflected in the Conven-
tion and this Agreement”.

28. Following this historical review, two points are worthy of note.
First, Canada’s role in securing inclusion of the reference to international
law in the definition of the concept of conservation and management
measures; this was no mere standard clause, for 22 months had elapsed
between formal submission of the proposal and its incorporation in the

136
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 565

draft agreement. Secondly, the notion of “international measures” of
conservation and management on the “high seas” had progressively
retreated from view as an autonomous concept; it was not included in
Japan’s proposed amendment or in the final and definitive versions of the
text of the Agreement; once reference was made to the 1982 Convention,
it had effectively become redundant. _

(2) Analysis of the concept of conservation and management measures,
Article 1 (b) of the United Nations Agreement on Straddling
Stocks

29. In formal terms, the fact that both Parties to the present dispute
signed this instrument is evidence of their acceptance in principle of its
provisions, at least as regards the legal definitions. Thus, the definition
contained in Article 1 of the Straddling Stocks Agreement represents a
common, reasoned expression of the current state of the provisions con-
sidered to be most widely acceptable to subjects of international law.
Canada’s own interpretation of the concept of “conservation and man-
agement measures”, dating back to July 1993, regards the reference to
international law as an intrinsic part of the definition; moreover, this
Canadian interpretation was given well before the events relating to the
present dispute: the amendment to the Canadian Coastal Fisheries Pro-
tection Act (12 May 1994), the incidents involving the Estai (9 March
1995), and indeed the deposit of the new declaration of acceptance of
compulsory jurisdiction (10 May 1994). Contrary to what might have
been expected from Canada, in view of the sequence of events in connec-
tion with the “halibut war”, there was no sign of a change in the attitude
of the Respondent in this case during the negotiations on the Straddling
Stocks Agreement as far as the definition of “conservation and manage-
ment measures” was concerned.

30. Notwithstanding what is stated in the Judgment, there is no evi-
dence of any contrary international State practice or international treaty
that invalidates the definition given in the 1995 Straddling Stocks Agree-
ment, which was itself based on that in the 1993 FAO Agreement. In sup-
port of its reasoning, the Judgment cites provisions of national or Euro-
pean law which are held to define conservation and management measures
exclusively in material and factual terms. These examples are not rele-
vant, for they provide an insufficient basis for the characterization of the
measures concerned in terms of international law. They are simply ele-
ments of fact, which must be treated as such.

On the other hand, no opinio juris based on an exclusively material
definition of conservation and management measures was either put for-
ward by the Parties or identified by the Court. In view of this deficiency,
it is necessary to undertake a detailed analysis of the definition contained
in Article 1 of the 1995 Agreement.

137
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 566

3. Analysis of Article 1 (b) of the 1995 Agreement

31. An analysis of this definition, which is cited in the Judgment,
reveals the two components of the concept: a descriptive element and a
reference to the rules of international law.

Confronted with a composite definition, the Judgment deliberately
opted for a characterization of conservation and management measures
based solely on the descriptive element, excluding the second component.
This approach is criticizable and unacceptable, in that the only justifica-
tion for it put forward in the Judgment is a statement of the risks inher-
ent in a reference to the legal component: the risk of a decision ultra
petita. The Court considers that a preliminary decision involving the
international law aspect would impinge on the merits.

32. I have no difficulty in agreeing with the majority of the Court that
no ruling on legality is required at the present stage. However, my dis-
agreement is over the question whether an explanation of the relationship
between the two components of the definition was needed in order to jus-
tify the Court’s decision. The Judgment, citing the factual nature of con-
servation and management measures, takes the view that it was not. This
approach is unacceptable, for it ignores the second element of the defini-
tion, which has to be examined in terms both of its purpose and of its
scope, whereas the Court considered only the latter. Notwithstanding
any question as to the legality of the measures, the Court had a duty to
state whether the legal component is intrinsic to the definition or merely
an operative element. In other words, if the definition in Article 1 is
deprived of its legal component, do the measures concerned remain con-
servation and management measures in the juridical sense of the term?
Replies to this question are to be found both in domestic and in interna-
tional law.

4. The Role of Law in Legal Definition

33. Let us consider the Swiss law of contract: if we examine the source
of individual contractual obligations, we find that, in the absence of spe-
cial legislative régimes, the determining factor in identifying the origin of
the relevant rules “is what the parties have validly agreed’. In order to
determine the moment at which they become bound and whether their
agreement is valid, recourse must be had to the principles embodied in
the law of obligations (P. Tercier, Les contrats spéciaux, 2nd ed., 1995,
p. 3, para. 19). When the Swiss law of contract contemplates “placing a
legal characterization upon the facts as found and ascertaining whether
the parties have sufficiently manifested their intention”, it considers this
to be a matter pertaining to the law (see S. Cyboz and Gillieron, Code
civil suisse et code des obligations annotés, C.O., 1993, p. 1).

It follows that the fact that the parties are ad idem with regard to the
normative element, that is, the subject of their reciprocal obligations, is

138
FISHERIES JURISDICTION (DISS. OP, RANJEVA) 567

not in itself sufficient to characterize this mutual and concordant mani-
festation of a common intent. That intent must be tested in the crucible
of the law, in order to be certain exactly what that subject-matter is and
whether the parties are of one mind in every respect.

34. In treaty law, before an intended agreement between States can be
characterized as an international treaty, it must by definition incorporate
the element of international law. It is well known that, without that ref-
erence to international law, concurrence of intentions does not constitute
a treaty within the meaning of the law of treaties. This subordination to
international law is not necessarily exclusive in character, and at the same
time implies a distinction between the notion of a sanction and the exist-
ence of a rule.

35. At this stage, the fact that a treaty is subject to international law
precludes any notion of sanction or, more precisely, any issue of compat-
ibility with that law; the question of legality under international law does
not arise. The problem is to determine whether or not the contracting
parties intend to make their agreement subject to international law; if the
reply is affirmative, then it is with a treaty that we are dealing. However,
the fact that a treaty is subject to international law does not mean that it
is exclusively subject to such law. Thus we are dealing here with an area
of mixed jurisdiction, where international law and domestic law co-exist
and are applied in their respective spheres. Canada was perfectly entitled
to enact domestic maritime legislation for the conservation and manage-
ment of fisheries resources. However, from the standpoint of interna-
tional law, the problem takes on a slightly different aspect.

36. The reference to international law is not expressed in general
terms, as in a standard clause analogous to those found in private con-
tracts. It is a restrictive or “qualified” reference. The 1982 Convention, by
its universal character, establishes the legal framework for all activity
relating to the law of the sea. It is thus common practice in a United
Nations context to interpret any rule or instrument of international law
concerned with the law of the sea as necessarily and particularly envis-
aging the 1982 Convention and the specific agreement in question.

37. The reference to the Montego Bay Convention for purposes of the
definition of legal concepts means not only that the normative aspects of
definition have to be taken into account, but also that consideration of
the territorial aspect of the law governing maritime areas is required. The
latter element is essential to an understanding of the general scheme of
the Convention, in view of the significance attached to the “package”
concept at the Third United Nations Conference on the Law of the Sea.
It follows that, in the Straddling Stocks Agreement, only conservation
and management measures subject to and in conformity with the rules of
the 1982 Convention may be characterized as such — irrespective of their
legality — although it is has to be admitted that the distinction between
the definition of such measures in international law and their legality is
an extremely fine one.

139
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 568

38. We may accordingly conclude that in the above examples —
drawn admittedly from legal relationships based on contract or treaty —
reference to law is an intrinsic requirement for the characterization of a
legal instrument.

5. The Role of Law in Legal Definition in the Case of a Unilateral
Instrument

39. In the present case, the problem derives from the unilateral nature
of the reservation in the declaration; the Judgment concludes that in
these circumstances the intention of the author of the declaration is para-
mount and, hence, that substantial, not to say exclusive, importance
should be accorded to the respondent Party’s domestic legislation. As a
result, the definition is restricted to its material aspect, even for purposes
of characterization of the facts in international law.

From the standpoint of international law, domestic legislation is of the
same juridical nature as the facts submitted for consideration by the
international forum, which is bound by the law of the parties. It was
therefore necessary for the Court to establish the pertinent facts with pre-
cision for the purpose of settling the preliminary dispute; but it was not
enough to consider that aspect alone, for this was to misconstrue the uni-
lateral nature of a reservation to compulsory jurisdiction. The reservation
is unilateral in origin but international in its effects, and in consequence
pertains both to domestic law, as the Judgment sufficiently demonstrates,
and also to international law, an issue which the Judgment avoids resolv-
ing or even contemplating; and that is unacceptable.

40. A declaration to which a reservation is attached, while perfectly
valid under the Court’s Statute — as is the Canadian declaration in this
case — cannot have the effect of conferring upon the author of the res-
ervation sole responsibility for determining whether the condition for the
Court’s exercise of its jurisdiction is met. The provisions of Article 36,
paragraph 6, prohibit the Court from affording one of the parties unfet-
tered discretion to interpret a declaration made by that party in the free
exercise of its discretion.

In endorsing a unilateral interpretation of the reservation and espous-
ing a material definition of conservation and management measures, the
Court has failed to appreciate the nature of the network of relationships
constituted by the various declarations of acceptance under Article 36,
paragraph 2, of the Statute. The relations between the litigating parties
come into being at the time when the conditions formulated by the
respondent — including any reservation — are accepted by the applicant
when it files its application. From that point in time, we are no longer
dealing with a single, unilateral intention, that of the respondent, but
with the common intention of the two parties, as formed at the moment
when the intention of the author of the reservation meets that of the
applicant State, an event which creates the jurisdictional link between the
litigating parties. Consequently, when faced with a common intent con-

140
FISHERIES JURISDICTION (DISS. OP. RANJEVA) 569

cealing an underlying divergence of views with regard to the meaning of
conservation and management measures, the Court cannot lightly lay
aside the traditional rules for the interpretation of treaties.

41. A common intent is not, however, in itself sufficient to create legal
obligations. This would be the case where the parties to an agreement did
not intend to establish a mutual legal relationship and sought to exclude
their common intent from the area governed by the law. For purposes of
legal characterization, how can the existence of a common intent as to
the generally accepted meaning of a particular concept be established,
otherwise than by reference to the accepted means of expression of inter-
national opinio juris — international law? Thus, a common intent can
have effectively been formed only if each party has shaped its consent to
fit the definition of conservation and management measures in interna-
tional law. Consequently, it is by reference to its definition in interna-
tional law that this notion must be interpreted for the purpose of settling
the preliminary dispute in this case. That definition comprises two ele-
ments, one ratione materiae, the other ratione loci.

The nature of the issue would have been different if the Canadian res-
ervation had provided for the exclusive competence of the author of the
declaration to interpret international law, but there is no such provision.
It is accordingly for the Court to define the conservation and manage-
ment measures in question on the basis of international law.

However, the Court cannot answer the fundamental question raised by
the preliminary dispute (Is the dispute presented by the Applicant in its
Application covered by the terms of the Respondent’s declaration and
reservation?) until it has examined the merits of the dispute. Thus it is
necessary to examine the content of the measures and the practice of
States in order to ascertain whether these were conservation and man-
agement measures within the meaning of the 1982 Convention. It follows
that the objection does not possess an exclusively preliminary character.
In answering the above question in the affirmative, the Judgment accepts
the hypothetical claims on the merits of a respondent which seeks immu-
nity for the measures it takes and the acts it performs, irrespective of their
legality.

In conclusion, I consider that:

(1) the passages in the Judgment concerning the subject of the dispute
have no direct connection with the question with which it is for the
Court to deal at this preliminary stage of the proceedings;

(2) Canada’s objection does not possess an exclusively preliminary
character and should be joined to the merits.

(Signed) Raymond RANJEVA.

141


                            DECLARATION OF VICE-PRESIDENT YUSUF

       Territorial integrity  Territorial sovereignty  Parties’ claims of violation of territorial
integrity not adequately addressed  Inviolability of boundaries as a basic element of territorial
integrity  Inviolability not conditional on the use or threat of force  Territorial integrity
breached by incursions  Lack of emphasis on territorial integrity inconsistent with Court’s case
law.

       1. While I agree with the decision of the Court and have voted for all the operative
paragraphs, I feel obliged to address briefly in this declaration some issues which the Court did not,
in my opinion, deal adequately with in the reasoning of the Judgment, particularly as regards the
principle of respect for the territorial integrity of States which was invoked by both Parties in their
final submissions to the Court (see Judgment, paragraph 49).

       2. The Court deals with certain aspects of these submissions in paragraphs 91 to 93 and
concludes that “[s]overeignty over the disputed territory . . . belongs to Costa Rica” (paragraph 92)
and that, as a consequence, the various activities carried out by Nicaragua in the disputed territory
“were in breach of Costa Rica’s territorial sovereignty” (paragraph 93). In a situation where both
Parties have clearly invoked the principle of respect for the territorial integrity of States, and the
obligations arising therefrom, I find the reasoning of the Court to be rather inadequate and too
economical.

       3. Generally speaking, it is my view that the reasoning of the Court should not only be
explicit, but should amply elaborate on the rules and principles of international law which are in
contention in a dispute submitted to it, particularly when such principles or rules are of
fundamental importance not only for the Parties but also for the international community as a
whole. As the principal judicial organ of the United Nations, the function of the Court is not only
to “decide in accordance with international law such disputes as are submitted to it”, but also, in the
exercise of such judicial functions, to contribute to the elucidation, interpretation and development
of the rules and principles of international law. To this end, the Court must engage in a considered
elaboration of such principles as they apply in a factual context to the case before it.

       4. Both Costa Rica and Nicaragua refer in their final submissions to the “obligation to
respect the sovereignty and territorial integrity” of the other (Judgment, paragraph 49); while the
Court both in its conclusions and in the second operative paragraph of its decision refers to the
“violation of the territorial sovereignty of Costa Rica”. I believe that the Parties chose to refer
specifically to “territorial integrity” to denote an intrusion by the other Party of a portion of
territory, albeit small, which each of them claimed to be its own. By taking the approach it has, the
Court has failed to engage with the Parties’ claims of violations of territorial integrity due to
incursions or other measures of force. The inviolability of boundaries is indeed a basic element of
the broader principle of territorial integrity and the Court should have squarely confronted this
issue in the present Judgment.

       5. As clearly stipulated in Article 21 of the Charter of the Organization of American States:
“The territory of a State is inviolable. It may not be the object, even temporarily, of military
occupation or of other measures of force taken by another State, directly or indirectly, on any
grounds whatever.” The Court regrettably decided not to comment upon or pronounce itself on the
legal consequences of this fundamental rule in light of its factual findings in this case.

                                                         -2-

       6. The United Nations Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States (General Assembly resolution 2625 (XXV)), which the
Court considers to be declarative of customary international law, sheds more light on the concept of
inviolability and suggests that violations of territorial integrity are prohibited independently of
considerations of the use of force. In other words, a State might violate the customary rule on
territorial inviolability without breaching the prohibition on the use of force.

       7. The first principle of the declaration provides that “States shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any State or in any manner inconsistent with the purposes of the United Nations”.
The eighth subparagraph of the first principle provides that the “organizing or encouraging the
organization of irregular forces or armed bands including mercenaries, for incursion into the
territory of another state” is prohibited.

       8. Whilst the other subparagraphs of the first principle link the legality of the action to the
use or threat of use of force1, the eighth paragraph does not. This suggests that the organization of
irregular forces or armed bands for incursion into the territory of another State breaches the
territorial inviolability of that state, whether or not those forces actually use or threaten to use force.
It must a fortiori be the case that sending armed forces, even though small in number, onto the
territory of another state breaches territorial inviolability, whether or not those forces use or
threaten to use force.

       9. Moreover, under paragraph (d) of the sixth principle, “the sovereign equality of States”,
the Declaration states that: “[t]he territorial integrity and political independence of the State are
inviolable”. Unlike the first principle, this provision does not generally link the inviolability of
territory to the use or threat of use of force. Instead, the territorial inviolability of the State
flows directly from the sovereignty of a State. This reflects the approach taken in the
Helsinki Declaration of the CSCE, which also recognizes the territorial integrity of States as
inviolable, whether or not such violation stems from the use of force:

             “The participating States will respect the territorial integrity of each of the
      participating States.

             Accordingly, they will refrain from any action inconsistent with the purposes
      and principles of the Charter of the United Nations against the territorial integrity,
      political independence or the unity of any participating State, and in particular from
      any such action constituting a threat or use of force.” (Helsinki Declaration,
      Sec. (a) (IV); emphasis added.)

      1
       For example, the first subparagraph provides that:
               “Every State has the duty to refrain in its international relations from the threat or use of force
      against the territorial integrity or political independence of any State, or in any other manner inconsistent
      with the purposes of the United Nations. Such a threat or use of force constitutes a violation of
      international law and the Charter of the United Nations and shall never be employed as a means of
      settling international issues.”

                                                -3-

       10. The Court in its case law has described the principle of territorial integrity as “an
essential foundation of international relations” (Corfu Channel (United Kingdom v. Albania,
Merits, Judgment, I.C.J. Reports 1949, p. 35) and as “an important part of the international legal
order” (Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 437, para. 80). The Court has
also previously clearly stated that the principle “is enshrined in the Charter of the United Nations,
in particular in Article 2, paragraph 4” (ibid.), as well as in customary international law (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 424, para. 73). The failure to
recognize as much, and not only to reiterate it, but to emphasize it, is, in my view, manifestly
inconsistent with the Court’s previous case law.

                                                           (Signed) Abdulqawi A. YUSUF.

                                           ___________


OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 28

ANNEX TO OPINION No. 16.

I. — DocUMENTS FORWARDED BY THE SECRETARIAT OF THE LEAGUE OF
NATIONS :

Letter from the President of the Mixed Commission to the Secretary-
General of the League of Nations (February 4th, 1928).

Extracts from minutes of the Mixed Commission :
I—116th Plenary Meeting (March 19th, 1927).

Annexes:

1.—Letter from the President of the Turkish delegation to the
President of the Mixed Commission (February 17th, 1927).

2.—Letter from the President of the Greek delegation to the
President of the Mixed Commission (February 17th, 1927).

3.—Greco-Turkish Agreement of December rst, 1926.

4.—List of house property belonging to Greek ressortissants estab-
lished in Smyrna, Mersine and Pendik.

5.—Valuation of property.
6.—Final Protocol (December 1st, 1926).
7—Declaration (December 1st, 1926).

8.—Extract from letter exchanged between M. Argyropoulos and
Saradjoglou Chukri Bey (December rst, 1926).

g.—Protocol No. I (June 2ist, 1925).
IO— ,, » IC, sr on ds

11.—Resolution in regard to persons established, to be taken by
the Mixed Commission (June 21st, 1925).

12.—Resolution to be taken by the Mixed Commission concerning
Article 16 of the Convention for the exchange of Greek and
Turkish populations (June 21st, 1925).

13.—-Minutes of signature (June 21st, 1925).

14.—Agreement concerning Turkish property in Greece and Greek
property in Turkey (June 21st, 1925).

15.—Letter from the President of the Turkish delegation to the
President of the Mixed Commission (March 17th, 1927).

15 bis.—Letter from the President of the Greek delegation to the
President of the Mixed Commission (March 17th, 1927).

16.— Resolution by the Plenary Meeting (March 19th, 1927).
17.—Rules concerning the working of valuation committees.
18.—Financial rules for valuation committees.

II.—137th Plenary Meeting (September 15th, 1927).

ITI.—140th M 5 (December ist and 3rd, 1927).
IV.—rz41st n. 5 ( » 12th, 1927).
V.—142nd 5 ” ( zoth, ,, ).
VI.—143rd » M ( ” 2end, ,, ).
VII.— 149th » 5 (January 26th, 5» ).
VIII.—150th M n (February 1st, 5 )s

Note by the Secretary-General of the League of Nations setting forth
the Council’s action in the matter (June 5th, 1928).
OPINION No. 16.—GRECO-TURKISH AGREEMENT (1926) 29

Extracts from the League of Nations Official Journal (April, 1928).
Note by the Secretary-General of the League of Nations (May 15th, 1928).
Letter from the Turkish Minister in Berne to the Secretary-General
of the League of Nations (May 5th, 1928).

Report by M. Adatci to the Council of the League of Nations
(June Ist, 1928).

Letter from the Secretary-General of the League of Nations to. the
Registrar (June 8th, 1928).

Extract from minutes of the Second (Public) Meeting of the Fiftieth
Session of the Council (June 5th, 1928).

II. — DOCUMENTS SUBMITTED BY THE TURKISH GOVERNMENT :

Letter of guarantee from the President of the International Financial
Commission in Greece to the Turkish Minister in Athens (February 16th,
1927).

Extract from minutes of the r4oth Plenary Meeting of the Mixed
Commission, held at Constantinople on December ist and 3rd, 1927.