71

DISSENTING OPINION OF JUDGE BASDEVANT
[Translation ]

I regret that I am unable to concur in the Judgment of the
Court that it is without jurisdiction in the present case and I believe
I must indicate briefly the reasons for my dissent.

In order to appraise the value of the Preliminary Objection
raised by the Norwegian Government to the jurisdiction of the
Court, the Court has placed itself on the ground on which the
Parties chose to argue the matter, namely, Article 36, paragraph 2,
of the Statute of the Court and the Declarations of the Governments
of the Kingdom of Norway and of the French Republic accepting
the compulsory jurisdiction of the Court in accordance with that
Article. I do not dispute this point of departure.

The Court has concentrated its attention on the reservation
which is contained in the French Declaration and which provides
that ‘‘this declaration does not apply to differences relating to
matters which are essentially within the national jurisdiction as
understood by the Government of the French Republic”. The Court
has pointed out that by virtue of the condition of reciprocity
embodied in the two Declarations and provided for in Article 36,
paragraph 3, Norway is entitled to rely on that reservation. I inter-
pret the reciprocity clause in the same manner.

Nor do I consider it necessary, any more than the Court does,
to deal with the question of the initial validity of that reservation
with regard to the present case.

It is less the reservation considered by itself and so to speak in
abstracto than the manner in which Norway's attitude should be
interpreted when she invoked the reservation on the basis of
reciprocity, which is at the source of my dissent. In other words I
confine myself strictly to the present case: a dispute between
France and Norway, a jurisdictional objection raised by Norway
to the Application presented by France.

The Judgment of the Court upholds this objection to the juris-
diction on the ground that Norway, invoking the French reservation
on the basis of reciprocity, has declared that the present matter
was essentially within its national jurisdiction as understood by the
Norwegian Government. The position thus adopted by the Nor-
wegian Government was regarded by the Court as sufficient to
preclude the compulsory jurisdiction of the Court which was in
principle accepted under the Declarations of the two Governments.

It is with regard to the interpretation thus placed upon the
position adopted by the Norwegian Government that I feel the
most serious doubts.

It is possible to imagine that a State invoking the reservation
should intend to put it forward as categorical in character so that
the opinion expressed by that State with regard to the character
of the dispute would be sufficient to preclude the jurisdiction of the
Court, without further consideration by the Court: it is not my

66
NORWEGIAN LOANS (DISS. OP. OF JUDGE BASDEVANT) 72

intention to prejudge in any way the question of the validity of the
reservation, interpreted as having such a scope. I merely observe
that that State would have to manifest that that is the scope which
it gives to the opinion it expresses, that its will to assume respon-
sibility for such an attitude would have to be sufficiently apparent.
However, I find it difficult to ascribe to Norway such an intention,
or such an attitude which would scarcely be consistent with Norway’s
traditional attitude in the matter of arbitration and international
jurisdiction; I find it difficult to consider that Norway intended
to assume such a responsibility, political and moral, not only
vis-à-vis the other Party and before the Court in the present dispute
but in a more general manner and by such a precedent, before the
United Nations and finally, by reason of the subject-matter of
the proceedings, with regard to her own financial credit.

For the terms in which Norway has referred to the reservation are
most moderate. They do not confer upon the reservation a categorical
character signifying that the Court ought to confine itself to the
reservation and not consider the matter further.

The reference to the reservation appears in paragraph 23 of the
Preliminary Objections but it appears there only in a hypothetical
form. On the basis of considerations which are fully developed,
the Preliminary Objections first state this conclusion: “It is clear,
therefore, that in bringing before the Court the dispute set out in
its Application ... the French Government is asking the Court to
adjudicate upon questions of municipal law and not upon questions
of international law, i.e. upon questions which do not fall within
the jurisdiction conferred upon the Court by the Declarations made
by the Parties under Article 36, paragraph 2, of the Statute.”
Immediately following this passage, the Preliminary Objections add:
“There can be no possible doubt on this point. If, however, there
should still be some doubt, the Norwegian Government would rely
upon the reservations made by the French Government in its
Declaration of March Ist, 1949.”

The Norwegian Government thus begins by stating very strongly
the contention that the dispute relates to questions of municipal
law and does not, therefore, fall within the jurisdiction of the Court.
The soundness of this contention and the value of the arguments
put forward in support of it are clearly submitted to the consider-
ation of the Court. The Norwegian Government claims that its
contention is irrebuttable and that there can be no possible doubt
on this point. It does refer, however, to a hypothetical situation,
a situation in which there should still be some doubt, and it is only
with regard to that hypothetical situation that the Norwegian
Government refers to the French reservation.

The whole Norwegian argument with regard to the reservation
appears in the Preliminary Objections, but quite apart from the
fact that the argument is there presented only hypothetically,
Norway has not interpreted the reservation as constituting a
categorical means whereby a State may preclude the jurisdiction

67
NORWEGIAN LOANS (DISS. OP. OF JUDGE BASDEVANT) 73

of the Court. Such an interpretation is possible: Norway has not put
it forward. Whilst not stating exactly what her view was, Norway
puts forward a more moderate interpretation to the effect that
“such a reservation must be interpreted in good faith and should a
Government seek to rely upon it with a view to denying the juris-
diction of the Court in a case which manifestly did not involve a
‘matter which is essentially within the national jurisdiction’ it
would be committing an abus de droit which would not prevent the
Court from acting”.

Norway thereby acknowledges the Court’s power to control the
exercise by a State of its right to invoke the reservation. What
is the extent of this power? The words quoted above do not
define the extent of this power, but some indication has been sup-
plied by the statement appearing at the end of the argument on the
First Preliminary Objection and at the end of what was said regard-
ing the reservation invoked by Norway. The Norwegian Government
begins by asserting its right to rely upon the French reservation but
does not stop there. It considers it appropriate to justify the use it
makes of that right and in this connection adds the following words:
“Convinced that the dispute ... is within the domestic jurisdiction,
the Norwegian Government considers itself fully entitled to rely on
this right.” It would have been unnecessary for the Norwegian
Government to state its conviction on this point if it had purported
to confer upon its own understanding of the nature of the dispute a
decisive character taking it outside the control of the Court. If it
says that it is convinced that the dispute is within the domestic juris-
diction, it is because it derives this conviction from the considera-
tions relied upon to prove that the dispute is within the domain of
Norwegian law and not of international law. And, “‘accordingly’’, in
other words as a result of the conviction thus acquired, it “requests
the Court to decline, on grounds that it lacks jurisdiction, the
function which the French Government would have it assume”.

If this passage is compared with the importance of the position
occupied in the Preliminary Objections by the argument on the
character of the dispute as determined by the character of the law
which is applicable to it, one is led to the view that, in the mind
of the Norwegian Government, the two grounds upon which it
relies in support of its first Preliminary Objection converge and
that in the present case the determination of the character of the
matter will depend upon the law to be applied.

This interpretation is confirmed by the fact in the subsequent
written and oral proceedings, the Norwegian Government carefully
concentrated on the character of the applicable law in support of
its objection to the jurisdiction. Only one allusion was made on
behalf of the Norwegian Government to the French reservation,
with indirect and very brief reference to the condition of reciprocity
at the hearing of May 2oth, 1957. And indeed Counsel for the
Norwegian Government merely made the allusion in support of his
conclusion that the undertakings binding the two States in the

68
NORWEGIAN LOANS (DISS. OP. OF JUDGE BASDEVANT) 74

matter of jurisdiction “‘only relate to disputes of international law”.
This confirms the interpretation given above of the intentions of
the Norwegian Government and this interpretation is in harmony
with the frequently repeated assertion that the Norwegian Govern-
ment does not reject the jurisdiction of the Court absolutely,
because it so chooses, but on grounds which have been carefully
set out, thus showing that it was intended that the Court should
adjudicate upon them.

It would have been in the interests of Norway to confer a cate-
gorical character upon the defence provided by the French reser-
vation. She has not done so for a highly commendable reason,
because she was anxious to respect her international obligations.

In the matter of compulsory jurisdiction, France and Norway
are not bound only by the Declarations to which they subscribed on
the basis of Article 36, paragraph 2, of the Statute of the Court.
They are bound also by the General Act of September 26th, 1928,
to which they have both acceded. This Act is, so far as they are
concerned, one of those ‘‘treaties and conventions in force” which
establish the jurisdiction of the Court and which are referred to in
Article 36, paragraph 1, of the Statute. For the purposes of the
application of this Act, Article 37 of the Statute has substituted the
International Court of Justice for the Permanent Court of Inter-
national Justice. This Act was mentioned in the Observations of
the French Government and was subsequently invoked explicitly
at the hearing of May r4th by the Agent of that Government. It
was mentioned, at the hearing of May 21st, by Counsel for the
Norwegian Government. At no time has any doubt been raised as
to the fact that this Act is binding as between France and Norway.

There is no reason to think that this General Act should not
receive the attention of the Court. At no time did it appear that the
French Government had abandoned its right to rely on it. Even if
it had maintained silence with regard to it, the Court “whose
function it is to decide in accordance with international law such
disputes as are submitted to it’’ could not ignore it. When it is a
matter of determining its jurisdiction and, above all, of deter-
mining the effect of an objection to its compulsory jurisdiction,
the principle of which has been admitted as between the Parties,
the Court must, of itself, seek with all the means at its disposal to
ascertain what is the law. In a matter in which such research was
less imperatively necessary, the Permanent Court did not hesitate
to undertake it, stating that “in the fulfilment of its task of itself
ascertaining what the international law is, it ... has included in its
researches all precedents, teachings and facts to which it had access
and which might possibly have revealed the existence of one of the
principles of international law contemplated in the special agree-
ment’. (P.C.I.J. Judgment No. 9, p. 31.)

On acceding to the General Act, on May 31st, 1931, the French
Government, in so far as it was explicitly authorized to do so by
Article 39, sub-paragraph (6), and by Article 41 of that Act, declared

69
NORWEGIAN LOANS (DISS. OP. OF JUDGE BASDEVANT) 75

that its accession, involving inter alia the acceptance of the
compulsory jurisdiction of the Court, applied to disputes “other
than those which the Permanent Court of International Justice
may recognize as bearing on a question left by international law
to the exclusive competence of the State”. As this reservation was
formulated by France, Norway may, as stated in Article 39,
paragraph 3, of the General Act, rely upon it as against France.

Such was the law in force between France and Norway concerning
the compulsory jurisdiction of the Court at the time when France
accepted afresh the compulsory jurisdiction of the Court by her
Declaration of March rst, 1949, on the basis of Article 36, para-
graph 2, of the Statute. The law thus in force embodied the reserva-
tion concerning the exclusive competence of the State, but, on the one
hand, there was the qualification of that reservation regarding what
is recognized by international law and, on the other hand, the Court
was given the power to verify, when the reservation should come
to be pleaded, whether it was rightly or wrongly invoked.

The Declaration by which the French Government accepted
compulsory jurisdiction on the basis of Article 36, paragraph 2,
of the Statute contains a reservation of wider scope, since it refers
not to what is recognized by international law, but to the under-
standing of the Government which invokes the reservation and,
further, since it does not submit that understanding to the verifi-
cation of the Court. At all events, it does not do so expressly. The
Declaration thus limits the sphere of compulsory jurisdiction more
than did the General Act in relations between France and Norway.
Now, it is clear that this unilateral Declaration by the French
Government could not modify, in this limitative sense, the law
that was then in force between France and Norway.

In a case in which it had been contended that not a unilateral
declaration but a treaty between two States had limited the scope
as between them of their previous declarations accepting compul-
sory jurisdiction, the Permanent Court rejected this contention and
said in this connection:

“The multiplicity of agreements concluded accepting the com-
pulsory jurisdiction is evidence that the contracting Parties intended
to open up new ways of access to the Court rather than to close old
ways or to allow them to cancel each other out with the ultimate
result that no jurisdiction would remain.” (P.C.I.J., Series A/B,
No. 77, p. 76.) A way of access to the Court was opened up by the
accession of the two Parties to the General Act of 1928. It could
not be closed or cancelled out by the restrictive clause which the
French Government, and not the Norwegian Government, added
to its fresh acceptance of compulsory jurisdiction stated in its
Declaration of 1949. This restrictive clause, emanating from only
one of them, does not constitute the law as between France and
Norway. The clause is not sufficient to set aside the juridical system
existing between them on this point. It cannot close the way of

70
NORWEGIAN LOANS (DISS. OP. OF JUDGE BASDEVANT) 76

access to the Court that was formerly open, or cancel it out with
the result that no jurisdiction would remain.

Between France and Norway, on the point now under considera-
tion, the acceptance of compulsory jurisdiction is, therefore, to-day
as prior to the French Declaration of March Ist, 1949, set aside
only in respect of such disputes as the Court may recognize as
bearing on a question left by international law to the exclusive
competence of the State.

This presentation of the state of the law existing between France
and Norway explains the sense attached by Norway to her reliance
on the French reservation. She relied on it, and could only rely
on it, in the sense that this reservation has in relations between
France and Norway, that is to say, not as a reservation the appli-
cation of which depends on the discretionary judgment of the
State wich relies on it, but as a reservation the scope of which
depends on what is recognized by international law as found by the
Court. I cannot suppose that Norway intended to give the reser-
vation a more absolute sense which would be in conflict with the
law existing in this matter between the two countries.

This interpretation, involving a reference to what is recognized
by international law as found by the Court, is in complete harmony
with the moderate interpretation which Norway gave to the
reservation and with the small place it occupies in her reasoning
which, on the other hand, went to great lengths to show that the
dispute relates to questions of Norwegian law and not to questions
of international law and, on that ground, does not come within the
jurisdiction of the Court.

In view of all this reasoning—and even from the mere perusal of
the Preliminary Objections—I cannot believe that it was the Nor-
wegian Government’s intention to prove to the satisfaction of the
Court that the dispute relates only to questions of Norwegian law,
‘to ask the Court to find that it agrees with this view and then to
add immediately that the Court’s opinion on this point is of no
importance and that it is only the Norwegian Government’s
opinion that counts.

The Norwegian Government’s intention seems to me to be quite
different. In invoking the French reservation, its intention was that
its bearing on the present case should be considered in the light of the
elements of the case: the subject of the claim and the law applic-
able. It is on this footing that the appeal to the reservation must be
judged and that the discussion between the Parties in fact developed.

The Norwegian Government might have followed another
course. When it invoked the French reservation, it might have
relied, in this connection, on the fact that this case is concerned
with public loans, with measures affecting the monetary system
of Norway. I do not prejudge the validity of such considerations.
That was the course followed in the case of the nationality decrees
in Tunis and Morocco and it led the Permanent Court to find that
questions of nationality are amongst those which international law

71
NORWEGIAN LOANS (DISS. OP. OF JUDGE BASDEVANT) 77

leaves to the jurisdiction of the State but that it is otherwise when
the application of treaties is involved in regard to them. The
Norwegian Government did not take this course. The only grounds
which it advanced and which, if accepted, would be such as to
prove that the present dispute brings before the Court questions
which international law leaves to the exclusive jurisdiction of
Norway, are those relating to the nature of the law to be applied
for the settlement of this dispute, namely, Norwegian law and not
international law.

As the Judgment interprets the Norwegian Government’s in-
tention in a different way from that in which I have felt it proper
to interpret it—and that is the source of my dissent—it was not
necessary for it to consider whether the dispute brought before the
Court falls exclusively within the application of Norwegian law
and whether, on that ground, it falls outside the jurisdiction of
the Court either by the application of Article 36, paragraph 2,
of the Statute or through the effect of the French reservation
invoked by Norway without further explanation. In view of the
silence of the Judgment, I shall confine myself to some very brief
observations on this point.

I understand that the wording adopted for the Submissions in
the Application should have led the Norwegian Government to put
forward its first Preliminary Objection. The same terms might have
been used in the Submissions of a bondholder proceeding against
his Norwegian debtor before a Norwegian tribunal. But the dis-
cussion before the Court eliminated all assimilation between these
two cases and, in the course of these proceedings, it was frequently
asserted, particularly on the Norwegian side, that the dispute
between the French Government and the Norwegian Government
was different from the dispute between bondholders and Norwegian
debtors and came within the purview of a different branch of law.

The French Government is here acting in the exercise of its
right under international law to protect its nationals as against a
foreign State. The Judgment rightly recalls that, in its Note of
January 27th, 1955, the French Government proposed to the
Norwegian Government that the dispute should be referred to an
international tribunal in order to determine, on the basis of the
general principles of international law, whether the gold clause
which, it contended, was contained in the bonds in question, had
to be respected. The Judgment recalls also that, at the very outset
of the diplomatic dispute, the French Legation in Oslo, in its Note
dated June 16th, 1925, stated that it believed a contradiction to
exist between the Norwegian law of December 15th, 1923, and the
obligations which had been assumed towards the holders of the
loans of the Mortgage Bank of Norway, and contended, in this
connection, that it would not seem that a unilateral decision can be
relied upon as against foreign creditors. In the proceedings before
the Court, the French Government continually impugned this law
of 1923, from this point of view, and in its final Submissions filed

72
NORWEGIAN LOANS (DISS. OP. OF JUDGE BASDEVANT) 78

on May 25th, 1957, it asked the Court to adjudge and declare that
undertakings as to the amount of the debts contracted under the
loans referred to in the Application cannot be unilaterally modified.
The French Government placed reliance en Judgments Nos. 14 and
15 of the Permanent Court of International Justice, contending
that, in the present case as previously in the cases of the Serbian
loans and the Brazilian Federal loans, the loans in question are
international loans. It complained that Norway was practising
discrimination to the advantage of Danish and Swedish holders
and to the detriment of French holders, and it claimed that this
discrimination constituted a direct violation of international law. On
all those grounds it sought to obtain redress through a decision of the
Court which, without passing upon the financial adjustment of pay-
ments which the French Government declared itself ready to study
with the Norwegian Government, would find that the debtor in the
case of the loans specified i in the Application cannot validly discharge
his obligation except by payments as they fall due in gold value.

It is on this ground that the French Government intended to
place the claim it brought against the Norwegian Government. It is
not for me to prejudge the reply that should be given to it on any
of the points thus raised. J confine myself to noting that adjudi-
cation upon this claim is a matter that comes within the purview
not of Norwegian law but of international law.

No doubt, in order that the questions of law thus referred to,
and others of the same kind raised in the proceedings, may come
up for consideration, it must first be determined that the loans in
dispute, or some of them, do in fact contain a gold clause. This is a
question of the facts involved in the case, and these have been set
out in the Memorial and Counter-Memorial. This statement of the
facts may bring up certain questions of Norwegian law concerning,
for instance, the initial validity of the gold clause in the loans in
dispute. But, if the Court is seised of questions of international law
in the dispute at present pending between France and Norway, and
if, for that reason, the Court has jurisdiction to adjudicate on this
dispute, it obviously follows that the Court will also have to examine
the questions of fact that arise. It must include among these any
questions of the interpretation of such Norwegian laws as may call
for consideration. It has never been contended that the Court should
refer such questions to the consideration and decision of any
particular national tribunal.

Having regard to the sense I attach to the Norwegian Govern-
ment’s intention in invoking the French reservation, and having
regard to the nature of the questions actually submitted to the
Court, I do not think that Norway is justified, in this case, in
declining the jurisdiction of the Court on the ground of the reser-
vation concerning its national jurisdiction.

(Signed) BASDEVANT.

73


49

INTERNATIONAL COURT OF JUSTICE

1973 YEAR 1973
2 February
General List
No. 56 2 February 1973

FISHERIES JURISDICTION CASE

(FEDERAL REPUBLIC OF GERMANY v. ICELAND)

JURISDICTION OF THE COURT

Composition of the Court—Access to the Court of State not a party to the
Statute—Security Council resolution of 15 October 1946—Relevance of date of
deposit of declaration of acceptance of jurisdiction—Jurisdiction of the Court—
Applicability of a compromissory clause providing for reference to the Court
on the occurrence of a specified event—Failure of one party to appear—Exa-
mination of question of jurisdiction by the Court proprio motu—S‘tatute,
Article 53—Compromissory clause in Exchange of Notes—Statute, Article 36,
paragraph 1— Determination of scope and purpose of agreement—Relevance of
preparatory work—Initial validity of clause—Question of duress—Duration of
clause—Implementation of clause subject to condition—Changed circumstances
of fact and law as ground of termination of agreement— Conditions for applica-
tion of doctrine of fundamental change of circumstances—Effect of changed
circumstances in relation to compromissory clause.

JUDGMENT

Present: President Sir Muhammad ZAFRULLA KHAN; Vice-President AMMOUN;
Judges Sir Gerald FITZMAURICE, PADILLA NERVO, FORSTER, GROS,
BENGZON, PETREN, LACHS, ONYEAMA, DILLARD, IGNACIO-PINTO,
DE CASTRO, MOROZOV, JIMENEZ DE ARECHAGA; Registrar AQUARONE.
50 FISHERIES JURISDICTION (JUDGMENT)

In the Fisheries Jurisdiction case,
between

the Federal Republic of Germany,
represented by

Dr. G. Jaenicke, Professor of International Law in the University of Frank-
furt am Main,

as Agent and Counsel,
assisted by

Dr. D. von Schenck, Legal Adviser, Ministry of Foreign Affairs,
Dr. S. Vollmar, Ministry of Foreign Affairs,

Dr. R. Hilger, Ministry of Foreign Affairs,

Dr. D. Booss, Ministry of Food, Agriculture and Forests,

as Advisers,
and

the Republic of Iceland,

THE COURT,
composed as above,
delivers the following Judgment:

1. By a letter of 26 May 1972, received in the Registry of the Court on
5 June 1972, the State Secretary of the Foreign Office of the Federal Republic
of Germany transmitted to the Registrar an Application instituting proceed-
ings against the Republic of Iceland in respect of a dispute concerning the
then proposed extension by the Government of Iceland of its fisheries juris-
diction. In order to found the jurisdiction of the Court, the Application relied
on Article 36, paragraph 1, of the Statute of the Court, on an Exchange of
Notes between the Government of the Federal Republic and the Govern-
ment of Iceland dated 19 July 1961, and on a declaration, under the Security
Council resolution of 15 October 1946, made by the Federal Republic of
Germany on 29 October 1971 and deposited with the Registrar of the Court
on 22 November 1971.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the Government of Iceland. In accordance with
paragraph 3 of that Article, all other States entitled to appear before the
Court were notified of the Application.

3. By a letter dated 27 June 1972 from the Minister for Foreign Affairs of
Iceland, received in the Registry on 4 July 1972, the Court was informed
(inter alia) that the Government of Iceland was not willing to confer jurisdic-
tion on the Court, and would not appoint an Agent.

4. On 21 July 1972, the Agent of the Federal Republic of Germany filed
in the Registry of the Court a request for the indication of interim measures of
protection under Article 41 of the Statute and Article 61 of the Rules of
Court adopted on 6 May 1946. By an Order dated 17 August 1972, the Court
indicated certain interim measures of protection in the case.

5. By an Order dated 18 August 1972, the Court, considering that it was
Si FISHERIES JURISDICTION (JUDGMENT)

necessary to resolve first of all the question of its jurisdiction in the case,
decided that the first pleadings should be addressed to the question of the
jurisdiction of the Court to entertain the dispute, and fixed time-limits for the
filing of a Memorial by the Government of the Federal Republic of Germany
and a Counter-Memorial by the Government of Iceland. The Memorial of
the Government of the Federal Republic was filed within the time-limit pre-
scribed, and was communicated to the Government of Iceland. No Counter-
Memorial was filed by the Government of Iceland and, the written proceed-
ings being thus closed, the case was ready for hearing on 9 December 1972,
the day following the expiration of the time-limit fixed for the Counter-
Memorial of Iceland.

6. The Governments of the United Kingdom and Senegal requested that
the pleadings and annexed documents in this case should be made available
to them in accordance with Article 44, paragraph 2, of the Rules of Court.
The Parties having indicated that they had no objection, it was decided to
accede to these requests. Pursuant to Article 44, paragraph 3, of the Rules of
Court the pleadings and annexed documents were, with the consent of the
Parties, made accessible to the public as from the date of the opening of the
oral proceedings.

7. The Federal Republic of Germany, in reliance on Article 31, paragraph
3, of the Statute, notified the Court of its choice of a person to sit as judge ad
hoc in this case. No objection was made by the Government of Iceland within
the time-limit fixed for that Government to make its views known in accord-
ance with Article 3 of the Rules of Court. However, the Court, taking into
account the proceedings instituted against Iceland by the United Kingdom on
14 April 1972 in the case concerning Fisheries Jurisdiction and the composition
of the Court in this case, which includes a judge of United Kingdom national-
ity, decided by eight votes to five that there was in the present phase, con-
cerning the jurisdiction of the Court, a common interest in the sense of
Article 31, paragraph 5, of the Statute which justified the refusal of the re-
quest of the Federal Republic of Germany for the appointment of a judge ad
hoc.

8. On 8 January 1973, after due notice to the Parties, a public hearing was
held in the course of which the Court heard the oral argument on the question
of the Court’s jurisdiction advanced by Professor Dr. G. Jaenicke on behalf of
the Government of the Federal Republic of Germany. The Government of
Iceland was not represented at the hearing.

9. In the course of the written proceedings, the following submissions
were presented on behalf of the Government of the Federal Republic of
Germany:

in the Application:

“The Federal Republic of Germany asks the Court to adjudge and
declare:

(a) That the unilateral extension by Iceland of its zone of exclusive
fisheries jurisdiction to 50 nautical miles from the present baselines,
to be effective from 1 September 1972, which has been decided upon
by the Parliament (Althing) and the Government of Iceland and
communicated by the Minister for Foreign Affairs of Iceland to the
Federal Republic of Germany by aide-mémoire handed to its Am-
bassador in Reykjavik on 24 February 1972, would have no basis in
52 FISHERIES JURISDICTION (JUDGMENT)

international law and could therefore not be opposed to the Federal
Republic of Germany and to its fishing vessels.

(6) That if Iceland, as a coastal State specially dependent on coastal
fisheries, establishes a need for special fisheries conservation
measures in the waters adjacent to its coast but beyond the exclusive
fisheries zone provided for by the Exchange of Notes of 1961, such
conservation measures, as far as they would affect fisheries of the
Federal Republic of Germany, may not be taken, under internation-
al law, on the basis of a unilateral extension by Iceland of its fisheries
jurisdiction, but only on the basis of an agreement between the
Federal Republic of Germany and Iceland concluded either bilater-
ally or within a multilateral framework.”

in the Memorial:

“The Federal Republic of Germany respectfully requests the Court to
adjudge and declare:

That the Court has full jurisdiction to entertain the Application sub-
mitted by the Federal Republic of Germany to the Court on 5 June 1972
and to deal with the merits of this case.”

At the public hearing on 8 January 1973, the following submission was
presented by the Agent for the Federal Republic of Germany:

“On behalf of the Government of the Federal Republic of Germany I
therefore respectfully request the Court to adjudge and declare:

That the Court has full jurisdiction to entertain the Application sub-
mitted by the Federal Republic of Germany on 5 June 1972 and to deal
with the merits of the case.”

10. No pleadings were filed by the Government of Iceland, which was also
not represented in the oral proceedings, and no submissions were therefore
presented on its behalf. The attitude of that Government with regard to the
question of the Court’s jurisdiction was however defined in the above-
mentioned letter of 27 June 1972 from the Minister for Foreign Affairs of
Iceland. After calling attention to certain documents that letter stated:

“Those documents deal with the background and termination of the
agreement recorded in the Exchange of Notes of 19 July 1961, and with
the changed circumstances resulting from the ever-increasing exploita-
tion of the fishery resources in the seas surrounding Iceland.”

The letter concluded by saying:

“After the termination of the agreement recorded in the Exchange of
Notes of 1961, there was on 5 June 1972 no basis under the Statute for
the Court to exercise jurisdiction in the case to which the Government of
the Federal Republic refers.

The Government of Iceland, considering that the vital interests of the
people of Iceland are involved, respectfully informs the Court that it is
not willing to confer jurisdiction on the Court in any case involving the
extent of the fishery limits of Iceland, and specifically in the case sought
53 FISHERIES JURISDICTION (JUDGMENT)

to be instituted by the Government of the Federal Republic of Germany
on 5 June 1972.

Having regard to the foregoing, an Agent will not be appointed to
represent the Government of Iceland.”

In a telegram to the Court dated 4 December 1972, the Minister for Foreign
Affairs of Iceland stated that the position of the Government of Iceland was
unchanged:

*
* *

11, A telegram addressed to the Court on 28 July 1972 by the Minister for
Foreign Affairs of Iceland also mentioned that:

“the Federal Republic of Germany only accepted the jurisdiction of the
Court by its declaration of 29 October 1971, transmitted to the Registrar
on 22 November 1971, after it had been notified by the Government of
Iceland, in its aide-mémoire of 31 August 1971, that the object and
purpose of the provision for recourse to judicial settlement of certain
matters had been fully achieved’’.

By mentioning this fact, the Minister for Foreign Affairs of Iceland seemed
to suggest that the timing of the declaration of the Federal Republic of
Germany of 29 October 1971, deposited with the Registrar on 22 November
1971, may have had some effect on the binding force of the agreement con-
tained in the Exchange of Notes of 19 July 1961 or on the right of access to the
Court of the Federal Republic of Germany. As to the first point, it is clear
that the binding force of the agreement between the two Governments, which
is to be examined in the present Judgment, bears no relation to the date on
which the declaration required by the Security Council resolution of 15 Oc-
tober 1946 was deposited with the Registrar: the former is designed to
establish the jurisdiction of the Court over a particular kind of dispute; the
latter provides for access to the Court of States which are not parties to the
Statute. As to the second point (i.e., the question of the Federal Republic’s
right of access to the Court), according to the Security Council resolution, a
declaration, which may be either particular or general, must be filed by the
State which is not a party to the Statute, previously to its appearance before
the Court. This was done. Article 36 of the Rules of Court provides as follows:

“When a State which is not a party to the Statute is admitted by the
Security Council, in pursuance of Article 35 of the Statute, to appear
before the Court, it shall satisfy the Court that it has complied with any
conditions that may have been prescribed for its admission: the docu-
ment which evidences this compliance shall be filed in the Registry at the
same time as the notification of the appointment of the agent.”

The appointment of the Agent of the Federal Republic in the present case was
notified by the letter dated 26 May 1972, received in the Registry on 5 June
1972, whereas the declaration of the Federal Republic of Germany had been
previously filed, on 22 November 1971.
54 FISHERIES JURISDICTION (JUDGMENT)

12. The present case concerns a dispute between the Government of
the Federal Republic of Germany and the Government of Iceland
occasioned by the claim of the latter to extend its exclusive fisheries
jurisdiction to a zone of 50 nautical miles around Iceland. In the present
phase it concerns the competence of the Court to hear and pronounce
upon this dispute. The issue being thus limited, the Court will avoid not
only all expressions of opinion on matters of substance, but also any
pronouncement which might prejudge or appear to prejudge any eventual
decision on the merits.

13. It is to be regretted that the Government of Iceland has failed to
appear in order to plead the objections to the Court’s jurisdiction which
it is understood to entertain. Nevertheless the Court, in accordance with
its Statute and its settled jurisprudence, must examine proprio motu the
question of its own jurisdiction to consider the Application of the Federal
Republic of Germany. Furthermore, in the present case the duty of the
Court to make this examination on its own initiative is reinforced by the
terms of Article 53 of the Statute of the Court. According to this provision
whenever one of the parties does not appear before the Court, or fails to
defend its case, the Court, before finding upon the merits, must satisfy
itself that it has jurisdiction. It follows from the failure of Iceland to
appear in this phase of the case that it has not observed the terms of
Article 62, paragraph 2, of the Rules of Court, which requires inter alia
that a State objecting to the jurisdiction should “‘set out the facts and the
law on which the objection is based”’, its submissions on the matter, and
any evidence which it may wish to adduce. Nevertheless the Court, in
examining its own jurisdiction, will consider those objections which
might, in its view, be raised against its jurisdiction.

*
* *

14. To found the jurisdiction of the Court in the proceedings, the
Applicant relies on Article 36, paragraph 1, of the Court’s Statute, which
provides that: “The jurisdiction of the Court comprises ... all matters
specially provided for . . . in treaties and conventions in force”; on para-
graph 5 (the “compromissory clause”) of the Exchange of Notes between
the Government of the Federal Republic of Germany and the Govern-
ment of Iceland of 19 July 1961 (the “1961 Exchange of Notes”), which
provides:

“The Government of the Republic of Iceland shall continue to
work for the implementation of the Althing Resolution of 5 May
1959, regarding the extension of the fishery jurisdiction of Iceland.
However, it shall give the Government of the Federal Republic of
Germany six months’ notice of any such extension; in case of a
dispute relating to such an extension, the matter shall, at the request
of either party, be referred to the International Court of Justice”;

and on the declaration, under the Security Council resolution of 15 Oc-

9
55 FISHERIES JURISDICTION (JUGDMENT)

tober 1946, made by the Federal Republic of Germany on 29 October
1971 and deposited with the Registrar on 22 November 1971. In its
resolution of 5 May 1959 the Althing (the Parliament of Iceland) had
declared:

‘,,. that it considers that Iceland has an indisputable right to fishery
limits of 12 miles, that recognition should be obtained of Iceland’s
right to the entire continental shelf area in conformity with the
policy adopted by the Law of 1948, concerning the Scientific Con-
servation of the Continental Shelf Fisheries and that fishery limits
of less than 12 miles from base-lines around the country are out of
the question”.

15. The meaning of the expression “extension of fishery jurisdiction”
in paragraph 5 of the 1961 Exchange of Notes must be sought in the
context of this Althing resolution and of the complete text of these
Notes, in which the two contracting parties, referring to discussions which
had recently taken place between them, stated that they were prepared to
conclude the following arrangement: The Federal Republic of Germany,
for its part, agreed (paragraph 1 of the Notes) that it “shall not object in
future to a twelve-mile fishery zone around Iceland”, measured from
certain designated baselines (paragraph 2) relating to the delimitation of that
zone. It further agreed to a transitional period, ending on 10 March 1964,
during which vessels registered in the Federal Republic might fish within
the outer six miles of the 12-mile zone, subject to certain specified times
and exclusions with respect to designated areas (paragraphs 3 and 4). It
also recognized that the Icelandic Government “shall continue to work
for the implementation of the Althing Resolution of 5 May, 1959”
regarding its extension of fisheries jurisdiction. The Icelandic Govern-
ment, for its part, agreed to give six months’ notice of such extension and
also agreed that “in case of a dispute relating to such an extension, the
matter shall, at the request of either party, be referred to the International
Court of Justice” (paragraph 5).

16. In an aide-mémoire of 31 August 1971 the Government of Iceland
gave notice to the Government of the Federal Republic of Germany that
it “now finds it essential to extend further the zone of exclusive fisheries
jurisdiction around its coasts to include the areas of sea covering the
continental shelf”, adding that: “It is contemplated that the new limits,
the precise boundaries of which will be furnished at a later date, will enter
into force not later than 1 September, 1972.” In answer to this notice, the
Government of the Federal Republic advised the Government of Iceland
on 27 September 1971 of its view “that the unilateral assumption of
sovereign power by a coastal State over zories of the high seas is inadmis-
sible under international law”. It also reserved all rights deriving from the
1961 Exchange of Notes, “especially the right to refer disputes to the
International Court of Justice”.

10
56 FISHERIES JURISDICTION (JUDGMENT)

17. There is no doubt in the present case as to the fulfilment by the
Federal Republic of Germany of its part of the agreement embodied in
the 1961 Exchange of Notes concerning the recognition of a 12-mile
fishery zone around Iceland, and the phasing-out during a period of less
than three years of fishing within that zone by vessels registered in the
Federal Republic. There is no doubt either that a dispute has arisen be-
tween the Parties and that it has persisted despite the negotiations which
took place in 1971 and 1972. This dispute clearly relates to the extension
by Iceland of its fisheries jurisdiction beyond the 12-mile limit in the
waters above its continental shelf, as contemplated in the Althing resolu-
tion of 5 May 1959.

18. Equally, there is no question but that Iceland gave the Federal
Republic of Germany the required notice of extension. In consequence,
the Federal Republic having disputed the validity, not of the notice but
of the extension, the only question now before the Court is whether the
resulting dispute falls within the compromissory clause of the 1961
Exchange of Notes as being one for determination by the Court. Since,
on the face of it, the dispute thus brought to the Court upon the Applica-
tion of the Federal Republic of Germany falls exactly within the terms of
this clause, the Court would normally apply the principle it reaffirmed in
its 1950 Advisory Opinion concerning the Competence of the General
Assembly for the Admission of a State to the United Nations, according to
which there is no occasion to resort to preparatory work if the text of a
convention is sufficiently clear in itself. However, having regard to the
peculiar circumstances of the present proceedings, as set forth in para-
graph 13 above, and in order fully to ascertain the scope and purpose of
the 1961 Exchange of Notes, the Court will undertake a brief review of the
negotiations that led up to that exchange.

19. The account of these negotiations which has been given to the
Court by the Applicant, as well as certain documents exchanged between
the two Governments, show that, as early as June 1958, by a Note verbale
dated 9 June and delivered to the Icelandic Foreign Minister on 16 June,
the Federal Republic of Germany had protested against the announced
intention of the Icelandic Government to extend its exclusive fisheries
zone to 12 nautical miles with effect from 1 September 1958. In a Note
verbale of 16 July 1958 it renewed its protest, stating:

“The Federal Government regrets this one-sided procedure ex-
tremely and is compelled to express its profound disappointment
about the fact that the Icelandic Government has now taken the
above-mentioned unilateral steps without having accepted the sug-

11
37 FISHERIES JURISDICTION (JUDGMENT)

gestions of the Federal Government previously to seek an agreement
on fishing off the Icelandic coast by friendly negotiations with the
Federal Government or other interested nations.”

The Note expressed the hope that the Government of Iceland would be
prepared to enter into multilateral negotiations and specifically suggested
that such negotiations should have as their aim to bring about an agree-
ment that would take into account “the principles of international law”
and “the historic interests of all nations concerned’’.

20. A Note verbale of 5 August 1959 from the Embassy of Iceland in
Bonn to the Minister for Foreign Affairs of the Federal Republic of
Germany drew attention to the Icelandic proposal at the 1958 Geneva
Conference on the Law of the Sea to the effect that a possible disagree-
ment over the extension of exclusive fishery rights should be settled by
arbitration. The position taken by the Icelandic delegation at that con-
ference was re-emphasized by repeating:

“It is necessary that the Coastal State can unilaterally include an
adjacent area in its fishing zone, subject to arbitration in case of
disagreement.”

In its reply on 7 October 1959 the Government of the Federal Republic
of Germany contradicted the view that a coastal State could unilaterally
include an adjacent area in its fishing zone, subject to arbitration in case
of disagreement. Direct negotiations between the parties appear to have
been suspended until the conclusion of the then pending and extensive
negotiations between the Government of the United Kingdom and the
Government of Iceland, which culminated in an Anglo-Icelandic Ex-
change of Notes on 11 March 1961. Negotiations between the Govern-
ments of the Federal Republic and Iceland were, however, resumed im-
mediately thereafter.

21. On 13 March 1961 the Minister for Foreign Affairs of Iceland
transmitted to the Embassy of the Federal Republic of Germany copies of
the Anglo-Icelandic Exchange of Notes and at the same time called atten-
tion to modifications of certain baselines. Thereupon the Government of
the Federal Republic of Germany approached the Government of Iceland
in order to resume negotiations. In an aide-mémoire of 12 April 1961 it
noted with interest the Anglo-Icelandic Exchange of Notes and proposed
discussions with a view to the conclusion of an agreement between Iceland
and the Federal Republic. Subsequent negotiations centred on various
economic matters raised by the Government of Iceland and on the
terminal date for the “‘phasing-out” period, which the Icelandic Govern-
ment wished to have identical with that comprised in the Anglo-Icelandic
Exchange of Notes despite the later timing of the proposed exchange of
Notes with the Federal Republic of Germany.

22. It is significant that during these negotiations the Icelandic delega-
tion endeavoured to persuade the Government of the Federal Republic

12
58 FISHERIES JURISDICTION (JUDGMENT)

that no provision for judicial settlement should be included. In an aide-
mémoire of 20 June 1961, defining the position of the Government of
Iceland at the outset of the negotiations in that year, that Government
sought to exclude any provision for judicial settlement on the ground that
it was unnecessary in view of the Exchange of Notes with the Government
of the United Kingdom dated 11 March 1961. The aide-mémoire, after
dealing with baselines and the duration of the adjustment period, ex-
plicitly stated:

“Reference to the International Court of Justice. It is only fair to
say that it should not be necessary for the Federal Republic to insist
on this point for the obvious reason that if Iceland were to extend the
limits beyond 12 miles the U.K. Government certainly would refer
that matter to the Court, on its own initiative.”

According to the Memorial of the Federal Republic, this attempt was
however resisted: the German delegation insisted on the inclusion of the
same provision as in the Anglo-Icelandic Exchange of Notes of 11 March
1961, which, in view of the possibility of recourse to the Court and the
terms of Article 102 of the Charter of the United Nations, provided for
registration of the Exchange of Notes with the Secretariat of the United
Nations. By 6 July 1961, agreement had been reached on the terms of the
Notes to be exchanged, including the compromissory clause and provi-
sion for registration, and they were exchanged on 19 July 1961; the agree-
ment thus concluded was registered by the Government of Iceland with
the Secretariat of the United Nations on 27 September 1961.

23. This history of the negotiations reinforces the view that the Court
has jurisdiction in this case, and adds emphasis to the point that the real
intention of the parties was to give the Government of the Federal
Republic of Germany the same assurance as the United Kingdom, in-
cluding the right to challenge before the Court the validity of any further
extension of Icelandic fisheries jurisdiction in the waters above its con-
tinental shelf beyond the 12-mile limit. In consequence, the exercise of
jurisdiction by the Court to entertain the present Application would fall
within the terms of the compromissory clause and correspond exactly to
the intentions and expectations of both Parties when they discussed and
consented to that clause. It thus appears from the text of the compro-
missory clause, read in the context of the 1961 Exchange of Notes and in
the light of the history of the negotiations, that the Court has jurisdiction.
It has however been contended that the agreement either was initially void
or has since ceased to operate. The Court will now consider these conten-
tions.

*
* *

24. The letter of 27 June 1972 addressed to the Registrar by the Minis-
ter for Foreign Affairs of Iceland contains the following statement: “The

13
59 FISHERIES JURISDICTION (JUDGMENT)

1961 Exchange of Notes took place under extremely difficult circum-
stances.” In its Memorial, the Federal Republic of Germany interpreted
this statement as questioning the initial validity of the agreement, in-
asmuch as it appeared “to intimate that the conclusion of the 1961
Agreement had taken place, on the part of the Government of Iceland,
under some kind of pressure and not by its own free will”. There can be
little doubt, as is implied in the Charter of the United Nations and
recognized in Article 52 of the Vienna Convention on the Law of Treaties,
that under contemporary international law an agreement concluded under
the threat or use of force is void. It is equally clear that a court cannot
consider an accusation of this serious nature on the basis of a vague
general charge unfortified by evidence in its support. The history of the
negotiations which led up to the 1961 Exchange of Notes reveals that
these instruments were freely negotiated by the interested parties on the
basis of perfect equality and freedom of decision on both sides. No fact
has been brought to the attention of the Court from any quarter suggest-
ing the slightest doubt on this matter.

* *

25. In his letter of 27 June 1972 to the Registrar of the Court, the Minis-
ter for Foreign Affairs of Iceland observed that the 1961 agreement ‘‘was
not of a permanent nature”, and added that:

“In particular, an undertaking for judicial settlement cannot be
considered to be of a permanent nature. There is nothing in that
situation, or in any general rule of contemporary international law,
to justify any other view.”

This observation, directed against the Court’s jurisdiction, appears to
rest on the following chain of reasoning: (1) inasmuch as the compromis-
sory clause contains no provision for termination, it could be deemed to
be of a permanent nature; but (2) a compromissory clause cannot be of a
permanent nature; therefore (3) it must be subject to termination by
giving adequate notice. This reasoning appears to underlie the observation
of the Government of Iceland in its aide-mémoire of 31 August 1971 to
the effect that:

“In the opinion of the Icelandic Government ... the object and
purpose of the provision for recourse to judicial settlement of certain
matters envisaged in the passage quoted above [i.e., the compromis-
sory clause] have been fully achieved.”

26. It appears to the Court that, although the compromissory clause in
the 1961 Exchange of Notes contains no express provision regarding
duration, the obligation it embraces involves an inherent time-factor
conditioning its potential application. It cannot, therefore, be described
accurately as being of a permanent nature or as one binding the parties in
perpetuity. This becomes evident from a consideration of the object of

14
60 FISHERIES JURISDICTION (JUDGMENT)

the clause when read in the context of the Exchange of Notes.

27. The 1961 Exchange of Notes did not set up a definite time-limit
within which the Government of Iceland might make a claim in imple-
mentation of the Althing’s resolution. It follows that there could be no
specification of a time-limit for the corresponding right of the Federal
Republic of Germany to challenge such an extension and, if no agreement
were reached and the dispute persisted, to invoke the Court’s jurisdiction.
The right of the Federal Republic thus to act would last so long as Iceland
might seek to implement the Althing’s resolution. This was, of course,
within the control of the Government of Iceland, which in 1971, ten years
after the Exchange of Notes, made a claim to exclusive fishery rights over
the entire continental shelf area surrounding its territory and thus
automatically brought into play the right of the Federal Republic to have
recourse to the Court.

28. That being so, the compromissory clause in the 1961 Exchange of
Notes may be described as an agreement to submit to the Court, at the
unilateral request of either party, a particular type of dispute which was
envisaged and anticipated by the parties. The right to invoke the Court’s
jurisdiction was thus deferred until the occurrence of well-defined future
events and was therefore subject to a suspensive condition. In other
words, it was subject to a condition which could, at any time, materialize
if Iceland made a claim to extend her fishery limits, and the right of
recourse to the Court could be invoked only in that event.

29. The above observations suffice to dispose of a possible objection
based on views expressed by certain authorities to the effect that treaties
of judicial settlement or declarations of acceptance of the compulsory
jurisdiction of the Court are among those treaty provisions which, by
their very nature, may be subject to unilateral denunciation in the absence
of express provisions regarding their duration or termination. Since those
views cannot apply to a case such as the present one, the Court does not
need to examine or pronounce upon the point of principle involved. It is
sufficient to remark that such views have reference only to instruments in
which the parties had assumed a general obligation to submit to judicial
settlement all or certain categories of disputes which might arise between
them in the unpredictable future. The 1961 Exchange of Notes does not
embody an agreement of this type. It contains a definite compromissory
clause establishing the jurisdiction of the Court to deal with a concrete
kind of dispute which was foreseen and specifically anticipated by the
parties. In consequence, when a dispute arises of precisely the sort con-
templated, and is referred to the Court, the contention that the com-
promissory clause has lapsed, or is terminable, cannot be accepted:

15
61 FISHERIES JURISDICTION (JUDGMENT)

30. In his statement to the Althing on 9 November 1971, the Prime
Minister of Iceland alluded not only to an alleged change of circum-
stances with respect to fisheries and fishing techniques (which will be
considered later in this Judgment), but also to changes regarding “legal
opinion on fisheries jurisdiction”. However, the relevance to the com-
promissory clause of this allusion is not apparent, since if there is a dispute
as to such changes it would be embraced in the compromissory clause and
might be considered as an issue going to the merits. On the other hand, it
could be considered as relevant to the compromissory clause on an
hypothesis familiar in the law of certain States under the guise of “failure
of consideration’. As such, it is linked with the assertion that, the object
and purpose of the agreement having been fulfilled, it no longer has a
binding effect for Iceland.

31. It should be observed at the outset that the compromissory clause
has a bilateral character, each of the parties being entitled to invoke the
Court’s jurisdiction; it is clear that in certain circumstances it could be to
Iceland’s advantage to apply to the Court. The argument of Iceland
appears, however, to be that, because of the general trend of development
of international law on the subject of fishery limits during the last ten
years, the right of exclusive fisheries jurisdiction to a distance of 12 miles
from the baselines of the territorial sea has been increasingly recognized
and claimed by States, including the applicant State itself. It would then
appear to be contended that the compromissory clause was the price paid
by Iceland for the recognition at that time of the 12-mile fishery limit by
the other party. It is consequently asserted that if today the 12-mile
fishery limit is generally recognized, there would be a failure of considera-
tion relieving Iceland of its commitment because of the changed legal
circumstances. It is on this basis that it is possible to interpret the Prime
Minister’s statement to the Althing on 9 November 1971, to the effect
that it was unlikely that the agreement would have been made if the
Government of Iceland had known how these matters would evolve.

32. While changes in the law may under certain conditions constitute
valid grounds for invoking a change of circumstances affecting the dura-
tion of a treaty, the Icelandic contention is not relevant to the present
case. The motive which induced Iceland to enter into the 1961 Ex-
change of Notes may well have been the interest of obtaining an imme-
diate recognition of an exclusive fisheries jurisdiction to a distance of 12
miles in the waters around its territory. It may also be that this interest
has in the meantime disappeared, since a 12-mile fishery zone is now
asserted by the other contracting party in respect of its own fisheries
jurisdiction. But in the present case, the object and purpose of the 1961
Exchange of Notes, and therefore the circumstances which constituted
an essential basis of the consent of both parties to be bound by the agree-
ment embodied therein, had a much wider scope. That object and purpose
was not merely to decide upon the Icelandic claim to fisheries jurisdiction

16
62 FISHERIES JURISDICTION (JUDGMENT)

up to 12 miles, but also to provide a means whereby the parties might
resolve the question of the validity of any further claims. This follows not
only from the text of the agreement but also from the history of the nego-
tiations, that is to say, from the whole set of circumstances which must be
taken into account in determining what induced both parties to agree to
the 1961 Exchange of Notes.

33. An analysis of the agreement, in the light of its object and purpose,
reveals that it comprised two sets of obligations:

(a) those obligations of a transitory character contained in paragraphs 3
and 4, by which the fishing vessels of the other contracting party
were allowed to fish for a transitional period within areas of the outer
6 miles of the 12-mile fishery zone. Those provisions clearly have
attained their objective and may be considered to have expired on
10 March 1964;

(b) other obligations, contained in paragraphs 1, 2 and 5, which do not
have a transitory character since for them, in contrast to paragraphs 3
and 4, the parties did not provide any limitation ratione temporis.

34. It is possible that today Iceland may find that some of the motives
which induced it to enter into the 1961 Exchange of Notes have become
less compelling or have disappeared altogether. But this is not a ground
justifying the repudiation of those parts of the agreement the object and
purpose of which have remained unchanged. Iceland has derived benefits
from the executed provisions of the agreement, such as the recognition by
the Federal Republic of Germany since 1961 of a 12-mile exclusive
fisheries jurisdiction, the. acceptance by the Federal Republic of the
baselines.established by Iceland and the relinquishment over a period of
less than three years of the pre-existing traditional fishing by vessels
registered in the Federal Republic. Clearly it then becomes incumbent on
Iceland to comply with its side of the bargain, which is to accept the
testing before the Court of the validity of its further claims to extended
jurisdiction. Moreover, in the case of a treaty which is in part executed
and in part executory, in which one of the parties has already benefited
from the executed provisions of the treaty, it would be particularly inad-
missible to allow that party to put an end to obligations which were
accepted under the treaty by way of quid pro quo for the provisions which
the other party has already executed.

35. In his letter of 27 June 1972 to the Registrar, the Minister for
Foreign Affairs of Iceland refers to “‘the changed circumstances resulting
from the ever-increasing exploitation of the fishery resources in the seas

17
63 FISHERIES JURISDICTION (JUDGMENT)

surrounding Iceland”. Judicial notice should also be taken of other state-
ments made on the subject in documents which Iceland has brought to
the Court’s attention. Thus, the resolution adopted by the Althing on
15 February 1972 contains the statement that “‘owing to changed circum-
stances the Notes concerning fishery limits exchanged in 1961 are no
longer applicable”.

36. In these statements the Government of Iceland is basing itself on
the principle of termination of a treaty by reason of change of circum-
stances. International law admits that a fundamental change in the
circumstances which determined the parties to accept a treaty, if it has
resulted in a radical transformation of the extent of the obligations im-
posed by it, may, under certain conditions, afford the party affected a
ground for invoking the termination or suspension of the treaty. This
principle, and the conditions and exceptions to which it is subject, have
been embodied in Article 62 of the Vienna Convention on the Law of
Treaties, which may in many respects be considered as a codification of
existing customary law on the subject of the termination of a treaty
relationship on account of change of circumstances.

37. One of the basic requirements embodied in that Article is that the
change of circumstances must have been a fundamental one. In this
respect the Government of Iceland has, with regard to developments in
fishing techniques, referred in an official publication on Fisheries Jurisdic-
tion in Iceland, enclosed with the Foreign Minister’s letter to the Registrar
of 27 June 1972, to the increased exploitation of the fishery resources in
the seas surrounding Iceland and to the danger of still further exploitation
because of an increase in the catching capacity of fishing fleets. The
Icelandic statements recall the exceptional dependence of that country on
its fishing for its existence and economic development. In his letter of
27 June 1972 the Minister stated:

“The Government of Iceland, considering that the vital interests of
the people of Iceland are involved, respectfully informs the Court
that it is not willing to confer jurisdiction on the Court in any case
involving the extent of the fishery limits of Iceland . . .”

In this same connection, the resolution adopted by the Althing on 15
February 1972 had contained a paragraph in these terms:

“That the Governments of the United Kingdom and the Federal
Republic of Germany be again informed that because of the vital
interests of the nation and owing to changed circumstances the
Notes concerning fishery limits exchanged in 1961 are no longer
applicable and that their provisions do not constitute an obligation
for Iceland.”

38. The invocation by Iceland of its “‘vital interests”, which were not
made the subject of an express reservation to the acceptance of the juris-

18
64 FISHERIES JURISDICTION (JUDGMENT)

dictional obligation under the 1961 Exchange of Notes, must be inter-
preted, in the context of the assertion of changed circumstances, as an
indication by Iceland of the reason why it regards as fundamental the
changes which in its view have taken place in previously existing fishing
techniques. This interpretation would correspond to the traditional view
that the changes of circumstances which must be regarded as fundamental
or vital are those which imperil the existence or vital development of one
of the parties.

39. The Applicant, for its part, has expressed before the Court the view
that “‘the danger of overfishing has not yet materialized’, and made it
clear, in its oral argument, that it was not to be understood as accepting
the correctness of the claim by the Government of Iceland that the tech-
nical development of fishing equipment and modern fishing techniques
had made it more pressing than before to take conservation measures in
order to prevent overfishing in the waters around Iceland.

40. The Court, at the present stage of the proceedings, does not need to
pronounce on this question of fact, as to which there appears to be a
divergence of views between the two Governments. If, as contended by
Iceland, there have been any fundamental changes in fishing techniques
in the waters around Iceland, those changes might be relevant for the
decision on the merits of the dispute, and the Court might need to
examine the contention at that stage, together with any other arguments
that Iceland might advance in support of the validity of the extension of
its fisheries jurisdiction beyond what was agreed to in the 1961 Exchange
of Notes. But the alleged changes could not affect in the least the obliga-
tion to submit to the Court’s jurisdiction, which is the only issue at the
present stage of the proceedings. It follows that the apprehended dangers
for the vital interests of Iceland, resulting from changes in fishing tech-
niques, cannot constitute a fundamental change with respect to the lapse
or subsistence of the compromissory clause establishing the Court’s
jurisdiction.

41. It should be observed in this connection that the exceptional im-
portance of coastal fisheries to the Icelandic economy is expressly
recognized in the 1961 Exchange of Notes, and the Court, in its Order of
17 August 1972, stated that “it is also necessary to bear in mind the
exceptional importance of coastal fisheries to the Icelandic economy as
expressly recognized by the Federal Republic in its Note addressed to the
Foreign Minister of Iceland dated 19 July 1961”. The Court further stated
that ‘from that point of view account must be taken of the need for the
conservation of fish stocks in the Iceland area” U.C.J. Reports 1972,
p. 34). This point is not disputed.

42. Account must also be taken of the fact that the Applicant, in its
contentions before the Court, expressed the opinion that if Iceland, as a
coastal State specially dependent on coastal fisheries for its livelihood or
economic development, asserts a need to procure the establishment of a

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65 FISHERIES JURISDICTION (JUDGMENT)

special fisheries conservation régime (including such a régime under which
it enjoys preferential rights) in the waters adjacent to its coast but beyond
the exclusive fisheries zone provided for by the 1961 Exchange of Notes,
it can legitimately pursue that objective by collaboration and agreement
with the other countries concerned, but not by unilateral assumption of
exclusive rights within those waters. The exceptional dependence of
Iceland on its fisheries and the principle of conservation of fish stocks
having been recognized, the question remains as to whether Iceland is or is
not competent unilaterally to assert an exclusive fisheries jurisdiction
extending beyond the 12-mile limit. The issue before the Court in the
present phase of the proceedings concerns solely its jurisdiction to
determine the latter point.

43. Moreover, in order that a change of circumstances may give rise
to a ground for invoking the termination of a treaty it is also necessary
that it should have resulted in a radical transformation of the extent of
the obligations still to be performed. The change must have increased the
burden of the obligations to be executed to the extent of rendering the
performance something essentially different from that originally under-
taken. In respect of the obligation with which the Court is here concerned,
this condition is wholly unsatisfied; the change of circumstances alleged
by Iceland cannot be said to have transformed radically the extent of the
jurisdictional obligation which is imposed in the 1961 Exchange of Notes.
The compromissory clause enabled either of the parties to submit to the
Court any dispute between them relating to an extension of Icelandic
fisheries jurisdiction in the waters above its continental shelf beyond the
12-mile limit. The present dispute is exactly of the character anticipated
in the compromissory clause of the Exchange of Notes. Not only has the
jurisdictional obligation not been radically transformed in its extent; it
has remained precisely what it was in 1961.

44, The Applicant, in the oral proceedings, advanced the contention
that the assertion of changed circumstances does not, ipso facto, release
the State invoking them from its treaty obligation unless it has been
established, either by consent of the other party or by judicial or other
settlement between the parties, that the changed circumstances are of a
kind which justifies release from existing treaty obligations.

45. In the present case, the procedural complement to the doctrine of
changed circumstances is provided for in the 1961 Exchange of Notes,
which specifically calls upon the parties to have recourse to the Court in
the event of a dispute relating to Iceland’s extension of fisheries jurisdic-

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66 FISHERIES JURISDICTION (JUDGMENT)

tion. Furthermore, any question as to the jurisdiction of the Court,
deriving from an alleged lapse through changed circumstances, is resolv-
able through the accepted judicial principle enshrined in Article 36,
paragraph 6, of the Court’s Statute, which provides that “in the event of
a dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court”. In this case such a dispute obviously
exists, as can be seen from Iceland’s communications to the Court, and
to the other Party, even if Iceland has chosen not to appoint an Agent,
file a Counter-Memorial or submit preliminary objections to the Court’s
jurisdiction; and Article 53 of the Statute both entitles the Court and, in
the present proceedings, requires it to pronounce upon the question of its
jurisdiction. This it has now done with binding force.

46. For these reasons,
THE Court,
by fourteen votes to one,

finds that it has jurisdiction to entertain the Application filed by the
Government of the Federal Republic of Germany on 5 June 1972 and to
deal with the merits of the dispute.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this second day of February, one thousand
nine hundred and seventy-three, in three copies, of which one will be
placed in the archives of the Court and the others transmitted to the
Government of the Federal Republic of Germany and to the Government
of the Republic of Iceland, respectively.

(Signed) ZAFRULLA KHAN,
President.

(Signed) S. AQUARONE,
Registrar.

President Sir Muhammad ZAFRULLA KHAN makes the following dec-
laration:

I am in entire agreement with the Judgment of the Court. I consider it
needful, however, to append the following brief declaration.

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67 FISHERIES JURISDICTION (DECL. ZAFRULLA KHAN)

The sole question before the Court in this phase of these proceedings
is whether, in view of the compromissory clause in the Exchange of Notes
of 19 July 1961 between the Government of the Federal Republic of Ger-
many and the Government of Iceland, read with Article 36 (1) ofits Statute,
the Court is competent to pronounce upon the validity of the unilateral ex-
tension by Iceland of its exclusive fisheries jurisdiction from 12 to 50
nautical miles from the baselines agreed to by the parties in 1961. All
considerations tending to support or to discount the validity of Iceland’s
action are, at this stage, utterly irrelevant. To call any such consideration
into aid for the purpose of determining the scope of the Court’s jurisdic-
tion, would not only beg the question but would put the proverbial cart
before the horse with a vengeance and is to be strongly deprecated.

Judge Sir Gerald FITZMAURICE appends a separate opinion to the
Judgment of the Court.

Judge PADILLA NERVO appends a dissenting opinion to the Judgment of
the Court.

(Initialled) Z.K.
(Initialled) S.A.

22


. Note from the Spanish Government (

. Note from the Belgian Government (

. Note from the Spanish Government (Jan. 14th, 1937).
. Note from the Belgian Government (

. Note from the Spanish Government (

. Idem (Feb. ist, 1937).

. Note from the Belgian Government (Feb. 4th, 1937).

. Idem (Feb. 17th, 1937).

. Idem (April 5th, 1937).

. Idem (May 14th, 1937).

. Extract from a speech made in the Belgian Senate by the Belgian Minister

174

ANNEX.

DOCUMENTS SUBMITTED TO THE COURT.

A.—DocuMENTS SUBMITTED ON BEHALF OF THE BELGIAN GOVERNMENT.

. Card of the corpse identification service (Spanish text).
. Death certificate of Baron Jacques de Borchgrave (Spanish text and French

transl.).

. Note from the Belgian Government (Dec. 30th, 1936).

Note from the Spanish Government (Jan. 4th, 1937).

. Note from the Belgian Government (Jan. 5th, 1937).
. Receipt for the return to the Belgian Embassy in Madrid of the car used

by Baron Jacques de Borchgrave (Spanish text).

. Note from the Belgian Government (Jan. 7th, 1937).
. Certificate by the doctors concerning the causes of the death of Baron

Jacques de Borchgrave (Spanish text and French transl.).
an. roth, 1937).
Jan. 12th, 1937).

an. 18th, 1937).
an. 26th, 1937).

for Foreign Affairs (extract from the Annales parlementaires, Senate,
sitting of Feb. 4th, 1937).

B.—DocuMENTS SUBMITTED ON BEHALF OF THE SPANISH GOVERNMENT.

. Certificate (April 7th, 1937) signed at Valencia by the Secretary-General

of the Ministry for Foreign Affairs (Ministerio de Estado) to the effect that
Baron Jacques de Borchgrave was not in possession of diplomatic status
(Spanish text and French transl.).

. Certificate (June 21st, 1937) signed at Valencia by the Secretary-General

of the Ministry for Foreign Affairs concerning the instructions sent to the
Spanish Ambassador in Brussels (note of the Spanish Government dated
May 25th, 1937) (Spanish text and French transl.).

. Certificate (May 8th, 1937) signed at Valencia by the Secretary-General of

the Ministry for Foreign Affairs concerning the certificate delivered by the
Supreme Court of Justice of Spain to the effect that no one had exercised
the right of taking part in the prosecution, as authorized by Article ror
of the law of criminal procedure, and in the manner provided in Articles 270
and 280 of that law (Spanish text and French transi.).

. Certificate (April 5th, 1937) signed at Valencia by the Secretary-General

of the Ministry for Foreign Affairs concerning a report by the Ministry
of the Interior (Ministerio de la Gobernacién) (Spanish text and French
tvansl.).

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A./B. 72.—THE BORCHGRAVE CASE 175

5. Certificate (June 22nd, 1937) signed in Paris by the Consul in charge of
the Spanish Consulate-General in France to the effect that certain articles
of the law of criminal procedure of September 14th, 1882, are in force in
Spain.

6. Certificate (June 22nd, 1937) signed in Paris by the Consul in charge of
the Spanish Consulate-General in France to the effect that Article 3 of the
Treaty of Arbitration and Conciliation signed in Brussels on July roth, 1927,
between Belgium and Spain is in force.

21