INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

FISHERIES JURISDICTION CASE
(SPAIN y. CANADA)

JURISDICTION OF THE COURT

JUDGMENT OF 4 DECEMBER 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA COMPÉTENCE
EN MATIÈRE DE PÉCHERIES
(ESPAGNE c. CANADA)

COMPÉTENCE DE LA COUR

ARRÊT DU 4 DÉCEMBRE 1998
Official citation:

Fisheries Jurisdiction (Spain v. Canada),
Jurisdiction of the Court, Judgment, I C.J. Reports 1998, p. 432

Mode officiel de citation:

Compétence en matière de pêcheries (Espagne c. Canada),
compétence de la Cour, arrêt, CI.J. Recueil 1998, p. 432

Sales number
ISSN 0074-4441 N° de vente: 714

ISBN 92-1-070783-4

1998
4 December

General List
No. 96

432

INTERNATIONAL COURT OF JUSTICE
YEAR 1998

4 December 1998

FISHERIES JURISDICTION CASE

(SPAIN v. CANADA)

JURISDICTION OF THE COURT

Subject of the dispute — Role of the Application with regard to the determi-
nation of the questions on which the Court must adjudicate — Definition of the
dispute by the Court — Specific acts taken by Canada on the basis of certain
enactments and regulations, and legal consequences of those acts.

Jurisdiction of the Court — Question to be determined by the Court itself —
No burden of proof.

Declarations of acceptance of the Court’s compulsory jurisdiction — Condi-
tions and reservations as elements serving to determine the scope of acceptance
of the Court’s jurisdiction and not as derogations from a wider acceptance
already given — Interpretation of the various elements of a declaration as form-
ing a single whole — Successive declarations — Régime applicable to the inter-
pretation of declarations as unilateral acts, and that established for the inter-
pretation of treaties — Interpretation of the relevant terms of a declaration,
including reservations, in a natural and reasonable manner, due regard being
had to the intention of the declarant State — Ascertaining the intention — Con-
tra proferentem rule — Effectiveness principle — Legality of the acts covered
by a reservation not relevant for purposes of interpretation of that reservation
— Article 33 of the Charter.

Subparagraph 2 (d) of the Canadian declaration of 10 May 1994 — Intention
at the time of the subparagraph’s adoption — Links between Canada’s new dec-
laration and its new coastal fisheries protection legislation — Parliamentary
debates.

Interpretation of the text of the reservation:

“Disputes arising out of” — Broad and comprehensive character of the phrase
— Disputes having as their “subject-matter” the measures referred to in the res-
ervation, “concerning” such measures or having their “origin” therein.

“Conservation and management measures” — “Measure” as an act, step or pro-
ceeding — “Measure” of a “legislative” nature — Relationship between a stat-

4
433 FISHERIES JURISDICTION (JUDGMENT)

ute and implementing regulations within the legislative system of Canada and
other countries — Interpretation of an international instrument in the light of
international law — Distinction between the definition of a concept and the
legality of an act falling within the scope of that concept — “Conservation and
management” measures as measures having as their purpose the conservation
and management of living resources — Characterization by reference to factual
and scientific criteria — Conservation and management measures in the sense
generally accepted in international law and practice.

“Taken by Canada with respect to vessels fishing in the NAFO Regulatory
Area, as defined in the Convention on Future Multilateral Co-operation in the
Northwest Atlantic Fisheries, 1978” — Area constituting part of the high seas

— Meaning.to be attributed to the word “vessels” — “Natural and reasonable”
interpretation of the text — Declarant’s intention — Parliamentary debates.
“And the enforcement of such measures” — Use of force — Penal sanctions and

enforcement of conservation and management measures — Canadian legislation
and regulations — Restrictions bringing the authorized use of force within the
recognized category of measures of enforcement for purposes of conservation —
Boarding, inspection and seizure of a fishing vessel, and minimal use of force for
these purposes, as elements coming within the concept of enforcement of con-
servation and management measures according to a “natural and reasonable”
interpretation of that concept.

Interpretation of the reservation not prejudging the legality of the acts cov-
ered thereby — No reason to apply Article 79, paragraph 7, of the Rules in
order to declare that Canada’s objection is not of an exclusively preliminary
character.

“Automatic reservation” — Court not deprived of its competence to interpret
Canada’s reservation — Court's findings on its jurisdiction resulting from that
interpretation alone.

Mootness — Determination not necessary in this case.

JUDGMENT

Present: President SCHWEBEL; Vice-President WEERAMANTRY; Judges ODA,
BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER,
KOROMA, VERESHCHETIN, Hiccins, PARRA-ARANGUREN, KOOÏMANS,
Rezex; Judges ad hoc LALONDE, TORRES BERNARDEZ; Registrar
VALENCIA-OSPINA.

In the fisheries jurisdiction case,
between

the Kingdom of Spain,
represented by

Mr. José Antonio Pastor Ridruejo, Head of the International Legal Service of
the Ministry of Foreign Affairs, Professor of International Law at the Com-
plutense University of Madrid,

as Agent and Counsel (until 31 October 1998);

5
434 FISHERIES JURISDICTION (JUDGMENT)

Mr. Aurelio Pérez Giralda, Director of the International Legal Service of the
Ministry of Foreign Affairs,

as Agent (from 1 November 1998);

Mr. Pierre-Marie Dupuy, Professor of International Law at the University
Panthéon-Assas (Paris IT),

Mr. Keith Highet, Member of the Bars of the District of Columbia and New
York,

Mr. Antonio Remiro Broténs, Professor of International Law at the Autono-
mous University of Madrid,

Mr. Luis Ignacio Sänchez Rodriguez, Professor of International Law at the
Complutense University of Madrid,

as Counsel and Advocates;

Mr. Félix Valdés Valentin-Gamazo, Minister-Counsellor, Embassy of Spain to
the Netherlands,

as Co-Agent;

Mr. Carlos Dominguez Diaz, Embassy Secretary, Assistant Director-General
for International Fisheries Management Organizations, Ministry of Agricul-
ture and Fisheries,

Mr. Juan José Sanz Aparicio, Embassy Secretary, Department of International
Legal Affairs, Ministry of Foreign Affairs,

as Advisers,
and

Canada,
represented by

His Excellency Mr. Philippe Kirsch, Q.C., Ambassador and Legal Adviser to
the Department of Foreign Affairs and International Trade,

as Agent and Advocate;

Mr. Blair Hankey, Associate General Counsel, Department of Foreign Affairs
and International Trade,

as Deputy Agent and Advocate;

Mr. L. Alan Willis, Q.C., Department of Justice,

as Senior Counsel and Advocate;

Mr. Prosper Weil, Professor Emeritus, University of Paris,
as Counsel and Advocate;

Ms Louise de La Fayette, University of Southampton,
Mr. Paul Fauteux, Department of Foreign Affairs and International Trade,

Mr. John F. G. Hannaford, Department of Foreign Affairs and International
Trade, :

Ms Ruth Ozols Barr, Department of Justice,

Ms Isabelle Poupart, Department of Foreign Affairs and International Trade,

Ms Laurie Wright, Department of Justice,
as Counsel ;

6
435 FISHERIES JURISDICTION (JUDGMENT)

Mr. Malcolm Rowe, Q.C., Government of Newfoundland and Labrador,
Mr. Earl Wiseman, Department of Fisheries and Oceans,

as Advisers;

Ms Manon Lamirande, Department of Justice,
Ms Marilyn Langstaff, Department of Foreign Affairs and International Trade,

Ms Annemarie Manuge, Department of Foreign Affairs and International
Trade,
Mr. Robert McVicar, Department of Foreign Affairs and International Trade,

Ms Lynn Pettit, Department of Foreign Affairs and International Trade,
as Administrative Officers,

THE Court,

composed as above,
after deliberation,

delivers the following Judgment:

1. On 28 March 1995, the Kingdom of Spain (hereinafter called “Spain”)
filed in the Registry of the Court an Application instituting proceedings against
Canada in respect of a dispute relating to the amendment, on 12 May 1994, of
the Canadian Coastal Fisheries Protection Act, and the subsequent amend-
ments to the regulations implementing that Act, as well as to specific actions
taken on the basis of the amended Act and its regulations, including the pur-
suit, boarding and seizure on the high seas, on 9 March 1995, of a fishing vessel
— the Estai — flying the Spanish flag. The Application invoked as the basis of
the jurisdiction of the Court the declarations whereby both States have accepted
its compulsory jurisdiction in accordance with Article 36, paragraph 2, of its
Statute.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated to the Canadian Government by the Registrar; and,
pursuant to paragraph 3 of that Article, all States entitled to appear before the
Court were notified of the Application.

3. By letter of 21 April 1995, the Ambassador of Canada to the Netherlands
informed the Court that, in his Government’s opinion, the Court

“manifestly lacks jurisdiction to deal with the Application filed by Spain
..., by reason of paragraph 2 (d) of the Declaration, dated 10 May 1994,
whereby Canada accepted the compulsory jurisdiction of the Court”.

4, At a meeting between the President of the Court and the representatives
of the Parties held on 27 April 1995, pursuant to Article 31 of the Rules of
Court, the Agent of Canada confirmed his Government’s position that the
Court manifestly lacked jurisdiction in the case. At the close of the meeting it
was agreed that the question of the jurisdiction of the Court should be sepa-
rately determined before any proceedings on the merits; agreement was also
reached on time-limits for the filing of written pleadings on that question.

By Order of 2 May 1995, the President, taking into account the agreement

reached between the Parties, decided that the written proceedings should first
be addressed to the question of the jurisdiction of the Court to entertain the

7
436 FISHERIES JURISDICTION (JUDGMENT)

dispute and fixed 29 September 1995 and 29 February 1996, respectively, as the
time-limits for the filing of a Memorial by Spain and a Counter-Memorial by
Canada on that question.

The Memorial and the Counter-Memorial were duly filed within the time-
limits so prescribed.

5. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them availed itself of the right conferred by Article 31, para-
graph 3, of the Statute to proceed to choose a judge ad hoc to sit in the case:
Spain chose Mr. Santiago Torres Bernardez, and Canada Mr. Marc Lalonde.

6. At a meeting held between the President of the Court and the Agents of
the Parties on 17 April 1996, pursuant to Article 31 of the Rules of Court, the
Agent of Spain expressed the wish of his Government to be authorized to sub-
mit a Reply and the Agent of Canada stated that his Government was opposed
thereto. Each of the Parties subsequently confirmed its views on the matter in
writing, Canada in letters from its Agent dated 22 April and 3 May 1996, and
Spain in letters from its Agent dated 25 April and 7 May 1996.

By Order of 8 May 1996, the Court decided that it was sufficiently informed,
at that stage, of the contentions of fact and law on which the Parties relied with
respect to its Jurisdiction in the case, and that the presentation, by them, of
further written pleadings on that question therefore did not appear necessary.
The case was consequently ready for hearing with regard to the question of the
jurisdiction of the Court.

7. By letter of 8 June 1998, the Agent of Spain, referring to Article 56, para-
graph 4, of the Rules of Court, submitted to the Court five official Canadian
documents which had been published but not previously produced. A copy
thereof was communicated to the Agent of Canada, who, by letter of 9 June
1998, stated that, in his Government’s opinion, the provision referred to by
Spain afforded the possibility of making reference in oral arguments to docu-
ments which were part of readily available publications, but did not contem-
plate their production, adding that despite the late date of submission of the
documents in question Canada would not object to their production, in order
to avoid delaying the work of the Court.

8. In accordance with Article 53, paragraph 2, of the Rules of Court, the
Court, after ascertaining the views of the Parties, decided that copies of the
pleadings and documents annexed should be made accessible to the public on
the opening of the oral proceedings.

9. Public sittings were held between 9 and 17 June 1998, during which plead-
ings and replies were heard from the following:

For Spain: Mr. José Antonio Pastor Ridruejo,
Mr. Luis Ignacio Sanchez Rodriguez,
Mr. Antonio Remiro Brotôns,
Mr. Keith Highet,
Mr. Pierre-Marie Dupuy.

For Canada: LE. Mr. Philippe Kirsch,
Mr. Blair Hankey,
Mr. L. Alan Willis,
Mr. Prosper Weil.
437 FISHERIES JURISDICTION (JUDGMENT)

10. In the Application, the following requests were made by Spain:

“As for the precise nature of the complaint, the Kingdom of Spain
requests:

(A) that the Court declare that the legislation of Canada, in so far as it
claims to exercise a jurisdiction over ships flying a foreign flag on the
high seas, outside the exclusive economic zone of Canada, is not
opposable to the Kingdom of Spain;

(B) that the Court adjudge and declare that Canada is bound to refrain
from any repetition of the acts complained of, and to offer to the
Kingdom of Spain the reparation that is due, in the form of an indem-
nity the amount of which must cover all the damages and injuries
occasioned; and

(C) that, consequently, the Court declare also that the boarding on the
high seas, on 9 March 1995, of the ship Estai flying the flag of Spain
and the measures of coercion and the exercise of jurisdiction over that
ship and over its captain constitute a concrete violation of the afore-
mentioned principles and norms of international law.”

11. In the written pleadings, the following submissions were presented by the
Parties:

On behalf of the Spanish Government,
in the Memorial:

“The Kingdom of Spain requests the Court to adjudge and declare that,
regardless of any argument to the contrary, its Application is admissible
and that the Court has, and must exercise, jurisdiction in this case.”

On behalf of the Canadian Government,
in the Counter-Memorial:

“May it please the Court to adjudge and declare that the Court has no
jurisdiction to adjudicate upon the Application filed by Spain on 28 March
1995.”

12. In the oral proceedings, the following submissions were presented by the
Parties:

On behalf of the Spanish Government,
at the sitting of 15 June 1998:

“At the end of our oral arguments, we again note that Canada has
abandoned its allegation that the dispute between itself and Spain has
become moot. At least, it appears to have understood that it cannot be
asserted that the Spanish Application, having no further purpose for the
future, merely amounted to a request for a declaratory judgment. Nor
does it say — a fact of which we take note — that the agreement between
the European Union and Canada has extinguished the present dispute.

Spain’s final submissions are therefore as follows:

We noted at the outset that the subject-matter of the dispute is Canada’s
lack of title to act on the high seas against vessels flying the Spanish flag,
the fact that Canadian fisheries legislation cannot be invoked against
Spain, and reparation for the wrongful acts perpetrated against Spanish
438 FISHERIES JURISDICTION (JUDGMENT)

vessels. These matters are not included in Canada’s reservation to the
jurisdiction of the Court.

We also noted that Canada cannot claim to subordinate the Application
of its reservation to the sole criterion of its national legislation and its own
appraisal without disregarding your competence, under Article 36, para-
graph 6, of the Statute, to determine your own jurisdiction.

Lastly, we noted that the use of force in arresting the Estai and in
harassing other Spanish vessels on the high seas, as well as the use
of force contemplated in Canadian Bills C-29 and C-8, can also not be
included in the Canadian reservation, because it contravenes the pro-
visions of the Charter.

For all the above reasons, we ask the Court to adjudge and declare that
it has jurisdiction in this case.”

On behalf of the Canadian Government,
at the sitting of 17 June 1998:

“May it please the Court to adjudge and declare that the Court has no
jurisdiction to adjudicate upon the Application filed by Spain on 28 March
1995.”

13. The Court will begin with an account of the background to the
case.

14. On 10 May 1994 Canada deposited with the Secretary-General of
the United Nations a declaration of acceptance of the compulsory juris-
diction of the Court which was worded as follows:

“On behalf of the Government of Canada,

(1) I give notice that I hereby terminate the acceptance by Canada
of the compulsory jurisdiction of the International Court of Justice
hitherto effective by virtue of the declaration made on 10 September
1985 in conformity with paragraph 2 of Article 36 of the Statute of
the Court.

(2) I declare that the Government of Canada accepts as compul-
sory ipso facto and without special convention, on condition of reci-
procity, the jurisdiction of the International Court of Justice, in con-
formity with paragraph 2 of Article 36 of the Statute of the Court,
until such time as notice may be given to terminate the acceptance,
over all disputes arising after the present declaration with regard to
situations or facts subsequent to this declaration, other than:

(a) disputes in regard to which the parties have agreed or shall
agree to have recourse to some other method of peaceful settle-
ment;

10
439 FISHERIES JURISDICTION (JUDGMENT)

(6) disputes with the Government of any other country which is a
member of the Commonwealth, all of which disputes shall be
settled in such manner as the parties have agreed or shall agree;

(c) disputes with regard to questions which by international law
fall exclusively within the jurisdiction of Canada; and

(d) disputes arising out of or concerning conservation and manage-
ment measures taken by Canada with respect to vessels fishing
in the NAFO Regulatory Area, as defined in the Convention on
Future Multilateral Co-operation in the Northwest Atlantic
Fisheries, 1978, and the enforcement of such measures.

(3) The Government of Canada also reserves the right at any
time, by means of a notification addressed to the Secretary-General
of the United Nations, and with effect as from the moment of such
notification, either to add to, amend or withdraw any of the fore-
going reservations, or any that may hereafter be added.

It is requested that this notification be communicated to the Gov-
ernments of all the States that have accepted the Optional Clause
and to the Registrar of the International Court of Justice.”

The three reservations set forth in subparagraphs (a), {b) and (c) of
paragraph 2 of the above-mentioned declaration had already been
included in Canada’s prior declaration of 10 September 1985. Subpara-
graph (d) of the 1994 declaration, however, set out a new, fourth reser-
vation, further excluding from the jurisdiction of the Court:

“(d) disputes arising out of or concerning conservation and man-
agement measures taken by Canada with respect to vessels
fishing in the NAFO Regulatory Area, as defined in the Con-
vention on Future Multilateral Co-operation in the North-
west Atlantic Fisheries, 1978, and the enforcement of such
measures.”

15. On the same day that the Canadian Government deposited its new
declaration, it submitted to Parliament Bill C-29 amending the Coastal
Fisheries Protection Act by extending its area of application to include
the Regulatory Area of the Northwest Atlantic Fisheries Organization
(NAFO). Bill C-29 was adopted by Parliament, and received the Royal
Assent on 12 May 1994.

Section 2 of the Coastal Fisheries Protection Act as amended defined
the “NAFO Regulatory Area” as “that part of the Convention Area of
the Northwest Atlantic Fisheries Organization that is on the high
seas ...”.

11
440 FISHERIES JURISDICTION (JUDGMENT)

The new Section 5.1 of the Act contained the following declaration:

“54. Parliament, recognizing

(a) that straddling stocks on the Grand Banks of Newfoundland
are a major renewable world food source having provided a
livelihood for centuries to fishers,

(b) that those stocks are threatened with extinction,

(c) that there is an urgent need for all fishing vessels to comply in
both Canadian fisheries waters and the NAFO Regulatory Area
with sound conservation and management measures for those
stocks, notably those measures that are taken under the Con-
vention on Future Multilateral Co-operation in the Northwest
Atlantic Fisheries, done at Ottawa on October 24, 1978, Canada
Treaty Series 1979 No. 11, and

(d) that some foreign fishing vessels continue to fish for those
stocks in the NAFO Regulatory Area in a manner that under-
mines the effectiveness of sound conservation and management
measures, ,

declares that the purpose of section 5.2. is to enable Canada to take
urgent action necessary to prevent further destruction of those stocks
and to permit their rebuilding, while continuing to seek effective
international solutions to the situation referred to in paragraph (d).”

The new Section 5.2 read as follows:

“5.2. No person, being aboard a foreign fishing vessel of a pre-
scribed class, shall, in the NAFO Regulatory Area, fish or prepare to
fish for a straddling stock in contravention of any of the prescribed
conservation and management measures.”

Sections 7 (“Boarding by protection officer”), 7.1 (“Search”) and
8.1 (“Use of force”) of the Act as amended dealt with the activities of
Canadian fisheries protection officers within the NAFO Regulatory
Area. These sections read as follows:

“7. A protection officer may

(a) for the purpose of ensuring compliance with this Act and the
regulations, board and inspect any fishing vessel found within
Canadian fisheries waters or the NAFO Regulatory Area; and

(b) with a warrant issued under section 7.1, search any fishing
vessel found within Canadian fisheries waters or the NAFO
Regulatory Area and its cargo.”

“7.1. (1) A justice of the peace who on ex parte application is sat-
isfied by information on oath that there are reasonable grounds to
believe that there is in any place, including any premises, vessel or

12
441

FISHERIES JURISDICTION (JUDGMENT)

vehicle, any fish or other thing that was obtained by or used in, or
that will afford evidence in respect of, a contravention of this Act or
the regulations, may issue a warrant authorizing the protection
officer named in the warrant to enter and search the place for the
fish or other thing subject to any conditions that may be specified in
the warrant.

(2) A protection officer may exercise the powers referred to in para-
graph 7 (b) without a warrant if the conditions for obtaining a war-
rant exist but, by reason of exigent circumstances, it would not be
practical to obtain a warrant.”

“8.1. A protection officer may, in the manner and to the extent
prescribed by the regulations, use force that is intended or is likely to
disable a foreign fishing vessel, if the protection officer

(a) is proceeding lawfully to arrest the master or other person in
command of the vessel; and

(b) believes on reasonable grounds that the force is necessary for
the purpose of arresting that master or other person.”

Finally, the new Section 18.1, which was concerned with the applica-
tion of criminal law, stated:

“An act or omission that would be an offence under an Act of
Parliament if it occurred in Canada is deemed to have been commit-
ted in Canada if it occurs, in the course of enforcing this Act,

(a) in the NAFO Regulatory Area on board or by means of a for-
eign fishing vessel on board or by means of which a contraven-
tion of section 5.2 has been committed; or

(6) in the course of continuing pursuit that commenced while a for-
eign fishing vessel was in Canadian fisheries waters or the
NAFO Regulatory Area.”

16. On 12 May 1994, following the adoption of Bill C-8, Canada also
amended Section 25 of its Criminal Code relating to the use of force by
police officers and other peace officers enforcing the law. This Sec-
tion applied as well to fisheries protection officers, since their duties inci-
dentally included those of peace officers.

17. On 25 May 1994 the Coastal Fisheries Protection Regulations
were also amended. |

The new Sections 19.3 to 19.5 regulated “the use of force” by Canadian
fisheries protection officers pursuant to Section 8.1 of the amended Act.

The new subsection 2 of Section 21 of the Regulations provided as fol-
lows:

13
442 FISHERIES JURISDICTION (JUDGMENT)

“(2) For the purposes of section 5.2 of the Act,
(a) straddling stocks are,

(i) in Division 3L, Division 3N and Division 30, the stocks of
fish set out in Table I to this section, and
(ii) in Division 3M, the stocks of fish set out in Table II to this
section;
(6) vessels without nationality and foreign fishing vessels that fly
the flag of any state set out in Table III to this section are pre-
scribed classes of vessels; and

(c) a prohibition against fishing for straddling stocks, preparing to
fish for straddling stocks or catching and retaining straddling
stocks is a prescribed conservation and management measure.”

The “straddling stocks” referred to in “Table I” included the “Greenland
halibut” (also called in French “fiétan noir”). This was the only stock
mentioned in “Table IT”. “Table IIL” specified Belize, the Cayman Islands,
Honduras, Panama, Saint Vincent and the Grenadines and Sierra Leone.

18. These Regulations were further amended on 3 March 1995.
In their amended version, paragraphs (b) to (d) of Section 21 (2) read
as follows:

“(b) the following classes of foreign fishing vessels are prescribed
classes namely

(i) foreign fishing vessels without nationality,
(ii) foreign fishing vessels that fly the flag of any state set out
in Table ITI to this section, and
Gii) foreign fishing vessels that fly the flag of any state set out
in Table TV to this section;

(c) in respect of a foreign fishing vessel of a class prescribed by
subparagraph (b) (i) or (ii), prohibitions against fishing for
the straddling stocks set out in Table I or IJ to this section,
preparing to fish for those straddling stocks and catching and
retaining those straddling stocks are prescribed conservation
and management measures; and

(d) in respect of a foreign fishing vessel of a class prescribed by
subparagraph (6) (iii), the measures set out in Table V to
this section are prescribed conservation and management
measures”.

“Table IV” referred to Spain and Portugal. “Table V”, which was headed
“Prescribed Conservation and Management Measures”, began by laying
down the following prohibitions:

“1. Prohibitions against fishing for, or catching and retaining,
Greenland halibut in Division 3L, Division 3M, Division 3N or

14
443 FISHERIES JURISDICTION (JUDGMENT)

Division 30 during the period commencing on March 3 and termi-
nating on December 31 in any year.’

19. On 9 March 1995, the Estai, a fishing vessel flying the Spanish flag
and manned by a Spanish crew, was intercepted and boarded some 245
miles from the Canadian coast, in Division 3L of the NAFO Regulatory
Area (Grand Banks area), by Canadian Government vessels. The vessel
was seized and its master arrested on charges of violations of the Coastal
Fisheries Protection Act and its implementing regulations. They were
brought to the Canadian port of St. John’s, Newfoundland, where they
were charged with offences under the above legislation, and in particular
illegal fishing for Greenland halibut; part of the ship’s catch was confis-
cated. The members of the crew were released immediately. The master
was released on 12 March 1995, following the payment of bail, and the
vessel on 15 March 1995, following the posting of a bond.

20. The same day that the Estai was boarded, the Spanish Embassy in
Canada sent two Notes Verbales to the Canadian Department of Foreign
Affairs and International Trade. The second of these stated inter alia
that: “the Spanish Government categorically condemn[ed] the pursuit
and harassment of a Spanish vessel by vessels of the Canadian navy, in
flagrant violation of the international law in force, since these acts [took]
place outside the 200-mile zone”. On 10 March 1995, the Spanish Minis-
try of Foreign Affairs sent a Note Verbale to the Canadian Embassy in
Spain which contained the following passage:

“In carrying out the said boarding operation, the Canadian
authorities breached the universally accepted norm of customary
international law codified in Article 92 and articles to the same effect
of the 1982 Convention on the Law of the Sea, according to which
ships on the high seas shall be subject to the exclusive jurisdiction of
the flag State .

The Spanish Government considers that the wrongful act commit-
ted by ships of the Canadian navy can in no way be justified by pre-
sumed concern to conserve fisheries in the area, since it violates the
established provisions of the NAFO Convention to which Canada is
a party.”

In its turn, on 10 March 1995 the Canadian Department of Foreign
Affairs and International Trade sent a Note Verbale to the Spanish
Embassy in Canada, in which it was stated that “[t]he Estai resisted the
efforts to board her made by Canadian inspectors in accordance with
international practice” and that “the arrest of the Estai was necessary in
order to put a stop to the overfishing of Greenland halibut by Spanish
fishermen”.

15
444 FISHERIES JURISDICTION (JUDGMENT)

Also on 10 March 1995, the European Community and its member
States sent a Note Verbale to the Canadian Department of Foreign
Affairs and International Trade which included the following:

“The arrest of a vessel in international waters by a State other
than the State of which the vessel is flying the flag and under whose
jurisdiction it falls, is an illegal act under both the NAFO Conven-
tion and customary international law, and cannot be justified by any
means. With this action Canada is not only flagrantly violating
international law, but is failing to observe normal behaviour of
responsible States.

This act is particularly unacceptable since it undermines all the
efforts of the international community, notably in the framework of
the FAO and the United Nations Conference on Straddling Fish
Stocks and Highly Migratory Fish Stocks, to achieve effective con-
servation through enhanced cooperation in the management of fish-
eries resources.

This serious breach of international law goes far beyond the ques-
tion of fisheries conservation. The arrest is a lawless act against
the sovereignty of a Member State of the European Community.
Furthermore, the behaviour of the Canadian vessels has clearly
endangered the lives of the crew and the safety of the Spanish vessel
concerned.

The European Community and its Member States demand that
Canada immediately release the vessel, repair any damages caused,
cease and desist from its harassment of vessels flying the flag of
Community Member States and immediately repeal the legislation
under which it claims to take such unilateral action.”

21. On 16 April 1995, an “Agreement constituted in the form of an
Agreed Minute, an Exchange of Letters, an Exchange of Notes and the
Annexes thereto between the European Community and Canada on fish-
eries in the context of the NAFO Convention” was initialled; this Agree-
ment was signed in Brussels on 20 April 1995.

In Part A (“Control and Enforcement”) of the Agreed Minute, the
Community and Canada agreed on proposals which would “constitute
the basis for a submission to be jointly prepared and made to the NAFO
Fisheries Commission, for its consideration and approval, to establish a
Protocol to strengthen the NAFO Conservation and Enforcement Mea-
sures”; at the same time the parties decided to implement immediately,
on a provisional basis, certain control and enforcement measures. In Part
B (“Total Allowable Catch and Catch Limits”), they agreed on the total
allowable catch for 1995 for Greenland halibut within the area con-
cerned, and to certain management arrangements for stocks of this fish.
In Part C (“Other Related Issues”) Canada undertook to

16
445 FISHERIES JURISDICTION (JUDGMENT)

“repeal the provisions of the Regulation of 3 March 1995 pursuant
to the Coastal Fisheries Protection Act which subjected vessels from
Spain and Portugal to certain provisions of the Act and prohibited
these vessels from fishing for Greenland halibut in the NAFO Regu-
latory Area”;

it was further stated that, for the European Community, “any re-inser-
tion by Canada of vessels from any European Community member State
into legislation which subjects vessels on the high seas to Canadian juris-
diction” would be considered as a breach of the Agreed Minute. It was
likewise stated in that Part that Canada would regard as a breach of the
Agreed Minute

“any systematic and sustained failure of the European Community
to control its fishing vessels in the NAFO Regulatory Area which
clearly has resulted in violations of a serious nature of NAFO con-
servation and enforcement measures”.

Point 1 of Part D (“General Provisions”) of the Agreed Minutes pro-
vided as follows:

“The European Community and Canada maintain their respective
positions on the conformity of the amendment of 25 May 1994 to
Canada’s Coastal Fisheries Protection Act, and subsequent regula-
tions, with customary international law and the NAFO Convention.
Nothing in this Agreed Minute shall prejudice any multilateral con-
vention to which the European Community and Canada, or any
Member State of the European Community and Canada, are parties,
or their ability to preserve and defend their rights in conformity with
international law, and the views of either Party with respect to any
question relating to the Law of the Sea.”

Finally, Part E (“Implementation”) stated that the “Agreed Minute
[would] cease to apply on 31 December 1995 or when the measures
described in this Agreed Minute [were] adopted by NAFO, if this [should
be] earlier”.

The Exchange of Letters noted the agreement of the parties on two
points. It was agreed; on the one hand, that the posting of a bond for the
release of the vessel Estai and the payment of bail for the release of its
master

“[could] not be interpreted as meaning that the European Commu-
nity or its Member States recognize[d] the legality of the arrest or the
jurisdiction of Canada beyond the Canadian 200-mile zone against
fishing vessels flying the flag of another State”

and, on the other hand, that

“the Attorney-General of Canada [would] consider the public inter-

17
446 FISHERIES JURISDICTION (JUDGMENT)

est in his decision on staying the prosecution against the vessel Estai
and its master; in such case, the bond, bail and catch or its proceeds
[would] be returned to the master”.

The European Community emphasized that the stay of prosecution was
essential for the application of the Agreed Minute.

22. On 18 April 1995 the proceedings against the Estai and its master
were discontinued by order of the Attorney-General of Canada; on
19 April 1995 the bond was discharged and the bail was repaid with inter-
est; and subsequently the confiscated portion of the catch was returned.
On 1 May 1995 the Coastal Fisheries Protection Regulations were
amended so as to remove Spain and Portugal from Table IV to Sec-
tion 21. Finally, the Proposal for Improving Fisheries Control and
Enforcement, contained in the Agreement of 20 April 1995, was adopted
by NAFO at its annual meeting held in September 1995 and became
measures binding on all contracting parties with effect from 29 Novem-
ber 1995.

x * x

23. Neither of the Parties denies that there exists a dispute between
them. Each Party, however, characterizes the dispute differently. Spain
has characterized the dispute as one relating to Canada’s lack of entitle-
ment to exercise jurisdiction on the high seas, and the non-opposability
of its amended Coastal Fisheries Protection legislation and regulations to
third States, including Spain. Spain further maintains that Canada, by its
conduct, has violated Spain’s rights under international law and that
such violation entitles it to reparation. Canada states that the dispute.
concerns the adoption of measures for the conservation and management
of fisheries stocks with respect to vessels fishing in the NAFO Regulatory
Area and their enforcement.

24. Spain contends that the purpose of its Application is not to seise
the Court of a dispute concerning fishing on the high seas or the man-
agement and conservation of biological resources in the NAFO Regula-
tory Area. Claiming that its exclusive jurisdiction over ships flying its flag
on the high seas has been disregarded and swept aside, it argues that

“the object of the Spanish Application relates essentially to Can-
ada’s entitlement in general, and in particular in relation to Spain,
to exercise its jurisdiction on the high seas against ships flying
the Spanish flag and their crews, and to enforce that right by a resort
to armed force”.

25. Spain maintains that the Agreement of 20 April 1995 between the
European Community and Canada on fisheries in the context of the
NAFO Convention (see paragraph 21 above) settled as between Canada

18
447 FISHERIES JURISDICTION (JUDGMENT)

and the Community certain aspects of a dispute provoked by the uni-
lateral actions of Canada within the area of the high seas subject to regu-
lation by NAFO (an organization of which both the Community and
Canada are members). Spain also stresses that it co-operated in the con-
clusion of this Agreement as a member State of the Community, to which,
it states, competence in respect of fisheries conservation and management
has been transferred. However, according to Spain, its Application is
based on a right exclusive to itself and concerns a dispute whose subject-
matter differs from that covered by the Agreement; this dispute, there-
fore, is not merely a matter of fisheries conservation and management.
26. For its part, Canada is of the view that:

“this case arose out of and concerns conservation and management
measures taken by Canada with respect to Spanish vessels fishing in
the NAFO Regulatory Area and the enforcement of such measures”.

Canada contended at the hearing that Spain’s Application constitutes

“a claim in State responsibility on account of Canada’s alleged viola-
tion of the international obligations incumbent upon it under the
rules and principles of general international law”,

and maintained that a dispute consists of an indivisible whole comprising
facts and rules of law. In its view the Court cannot have jurisdiction with
regard to one of these elements and not have jurisdiction with regard to
the other.

27. Canada, referring to the notes of protest addressed to it by the
European Community and by Spain (see paragraph 20 above), points out
that they contain no trace of any distinction between a dispute with the
European Community and a dispute with Spain, and that both the pro-
tests of the Community and those by the Spanish authorities “are founded
on the dual, inextricably linked grounds of the fisheries protection legisla-
tion and general principles of international law”. Canada argues that this
conclusion is confirmed by the Agreement of 20 April 1995 between the
European Community and Canada, inasmuch as “here, too, those ques-
tions relating to fisheries and those relating to State jurisdiction, legal
entitlement and respect for the rights of the flag State are closely
interlinked”.

28. Spain insists that it is free, as the Applicant in this case, to
characterize the dispute that it wishes the Court to resolve.

| *
29. There is no doubt that it is for the Applicant, in its Application, to

present to the Court the dispute with which it wishes to seise the Court
and to set out the claims which it is submitting to it.

19
448 FISHERIES JURISDICTION (JUDGMENT)

Paragraph 1 of Article 40 of the Statute of the Court requires more-
over that the “subject of the dispute” be indicated in the Application;
and, for its part, paragraph 2 of Article 38 of the Rules of Court requires
“the precise nature of the claim” to be specified in the Application. In a
number of instances in the past the Court has had occasion to refer to
these provisions. It has characterized them as “essential from the point of
view of legal security and the good administration of justice” and, on this
basis, has held inadmissible new claims, formulated during the course of
proceedings, which, if they had been entertained, would have trans-
formed the subject of the dispute originally brought before it under the
terms of the Application (Certain Phosphate Lands in Nauru (Nauru
v. Australia), Preliminary Objections, Judgment, 1 C.J. Reports 1992,
pp. 266-267; see also Prince von Pless Administration, Order of 4 Febru-
ary 1933, P.C.I.J., Series AIB, No. 52, p. 14, and Société Commerciale
de Belgique, Judgment, 1939, P.C.LJ., Series AlB, No. 78, p. 173).

In order to identify its task in any proceedings instituted by one State
against another, the Court must begin by examining the Application (see
Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959,
p. 21; Right of Passage over Indian Territory, Merits, Judgment, 1. CJ.
Reports 1960, p. 27; Nuclear Tests (Australia v. France), Judgment,
LCJ. Reports 1974, p. 260, para. 24). However, it may happen that
uncertainties or disagreements arise with regard to the real subject of
the dispute with which the Court has been seised, or to the exact nature
of the claims submitted to it. In such cases 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 Applicant.

Even in proceedings instituted by Special Agreement, the Court has
determined for itself, having examined all of the relevant instruments,
what was the subject of the dispute brought before it, in circumstances
where the parties could not agree on how it should be characterized (see
Territorial Dispute (Libyan Arab JamahiriyalChad), Judgment, 1. CJ.
Reports 1994, pp. 14-15, para. 19, and p. 28, para. 57).

30. It is for the Court itself, while giving particular attention to the
formulation of the dispute chosen by the Applicant, to determine on an
objective basis the dispute dividing the parties, by examining the position
of both parties:

“[Ijt is the Court’s duty to isolate the real issue in the case and to
identify the object of the claim. It has never been contested that the
Court is entitled to interpret the submissions of the parties, and in
fact is bound to do so; this is one of the attributes of its judicial
functions.” (Nuclear Tests (New Zealand v. France), Judgment,
LC.J. Reports 1974, p. 466, para. 30; see also Request for an Exami-
nation of the Situation in Accordance with Paragraph 63 of the
Court’s Judgment of 20 December 1974 in the Nuclear Tests (New
Zealand v. France) Case, Order of 22 September 1995, I C.J. Reports
1995, p. 304, para. 55.)

20
449 FISHERIES JURISDICTION (JUDGMENT)

The Court’s jurisprudence shows that the Court will not confine itself to
the formulation by the Applicant when determining the subject of the dis-
pute. Thus, in the case concerning the Right of Passage over Indian Ter-
ritory, the Court, in order to form a view as to its jurisdiction, defined the
subject of the dispute in the following terms:

“A passage in the Application headed ‘Subject of the Dispute’
indicates that subject as being the conflict of views which arose
between the two States when, in 1954, India opposed the exercise of
Portugal’s right of passage. If this were the subject of the dispute
referred to the Court, the challenge to the jurisdiction could not be
sustained. But it appeared from the Application itself and it was
fully confirmed by the subsequent proceedings, the Submissions of
the Parties and statements made in the course of the hearings, that
the dispute submitted to the Court has a threefold subject:

(1) The disputed existence of a right of passage in favour of Portu-
gal;

(2) The alleged failure of India in July 1954 to comply with its obli-
gations concerning that right of passage;

(3) The redress of the illegal situation flowing from that failure.”
(Right of Passage over Indian Territory, Merits, Judgment,
ILC.J. Reports 1960, pp. 33-34.)

31. The Court will itself determine the real dispute that has been sub-
mitted to it (see Maritime Delimitation and Territorial Questions between
Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I CJ.
Reports 1995, pp. 24-25). It will base itself not only on the Application
and final submissions, but on diplomatic exchanges, public statements
and other pertinent evidence (see Nuclear Tests (Australia v. France),
Judgement, I C.J. Reports 1974, pp. 262-263).

32. In so doing, the Court will distinguish between the dispute itself
and arguments used by the parties to sustain their respective submissions
on the dispute:

“The Court has . . . repeatedly exercised 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.” (Nuclear
Tests ( Australia v. France), Judgment, C.J. Reports 1974, p. 262,
para. 29; see also cases concerning Fisheries, Judgment, I C.J.
Reports 1951, p. 126; Minquiers and Ecrehos, Judgment, I C.J.
Reports 1953, p. 52; Nottebohm, Second Phase, Judgment, I. CJ.
Reports 1955, p. 16.)

33. In order to decide on the preliminary issue of jurisdiction which
arises in the present case, the Court will ascertain the dispute between
Spain and Canada, taking account of Spain’s Application, as well as

21
450 FISHERIES JURISDICTION (JUDGMENT)

the various written and oral pleadings placed before the Court by the
Parties,

34. The filing of the Application was occasioned by specific acts of
Canada which Spain contends violated its rights under international law.
These acts were carried out on the basis of certain enactments and regu-
lations adopted by Canada, which Spain regards as contrary to interna-
tional law and not opposable to it. It is in that context that the legislative
enactments and regulations of Canada should be considered.

35. The specific acts (see paragraph 34 above) which gave rise to the
present dispute are the Canadian activities on the high seas in relation to
the pursuit of the Estai, the means used to accomplish its arrest and the
fact of its arrest, and the detention of the vessel and arrest of its master,
arising from Canada’s amended Coastal Fisheries Protection Act and
implementing regulations. The essence of the dispute between the Parties
is whether these acts violated Spain’s rights under international law and
require reparation. The Court must now decide whether the Parties have
conferred upon it jurisdiction in respect of that dispute.

* OR

36. As Spain sees it, Canada has in principle accepted the jurisdiction
of the Court through its declaration under Article 36, paragraph 2, of the
Statute, and it is for Canada to show that the reservation contained in
paragraph 2 (d) thereto does exempt the dispute between the Parties
from this jurisdiction. Canada, for its part, asserts that Spain must bear
the burden of showing why the clear words of paragraph 2 (d) do not
withhold this matter from the jurisdiction of the Court.

37. The Court points out that the establishment or otherwise of juris-
diction is not a matter for the parties but for the Court itself. Although a
party seeking to assert a fact must bear the burden of proving it (see Mili-
tary and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Jurisdiction and Admissibility, Judgment,
LCS. Reports 1984, p. 437, para. 101), this has no relevance for the
establishment of the Court’s jurisdiction, which is a “question of law to
be resolved in the light of the relevant facts” (Border and Transborder
Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I. C.J. Reports 1988, p. 76, para. 16).

38. That being so, there is no burden of proof to be discharged in the
matter of jurisdiction. Rather, it is for the Court to determine from all
the facts and taking into account all the arguments advanced by the
Parties, “whether. the force of the arguments militating in favour of juris-
diction is preponderant, and to ‘ascertain whether an intention on the

22
451 FISHERIES JURISDICTION (JUDGMENT)

part of the Parties exists to confer jurisdiction upon it’” (Border and
Transborder Armed Actions {Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, C.J. Reports 1988, p. 76, para. 16; see
also Factory at Chorzéw, Jurisdiction, Judgment No. 8, 1927, P.C.LJ.
Series A, No. 9, p. 32).

+ Ox

39. As the basis of jurisdiction, Spain founded its claim solely on the
declarations made by the Parties pursuant to Article 36, paragraph 2, of
the Statute. On 21 April 1995 Canada informed the Court, by letter, that
in its view the Court lacked jurisdiction to entertain the Application
because the dispute was within the plain terms of the reservation in para-
graph 2 (d) of the Canadian declaration of 10 May 1994. This position
was elaborated in its Counter-Memorial of February 1996, and con-
firmed at the hearings.

40. Spain appears at times to contend that Canada’s reservation is
invalid or inoperative by reason of incompatibility with the Court’s Stat-
ute, the Charter of the United Nations and with international law. How-
ever, Spain’s position mainly appears to be that these claimed incompat-
ibilities require an interpretation to be given to paragraph 2 (d) of the
declaration different from that advanced by Canada. In its Memorial at
paragraph 39 Spain thus stated:

“Although the Court has hitherto avoided making a concrete
determination on the compatibility or incompatibility, with the Stat-
ute, of the literal content of certain reservations, and on which cer-
tain judges have commented, initiating a major doctrinal debate, the
reservation in paragraph 2 (d) of the Canadian declaration does not
raise any problems of this kind.

There may be reservations which, owing to their wording, are
incompatible with the Statute, but the Canadian declaration is not
one of them. On the other hand, what may be incompatible with the
Statute is a certain interpretation of that reservation which Canada
now appears to claim to present as the sole authentic interpretation
of its reservation with a view to evading the jurisdiction of the
Court.

There are — or there may be — not Just anti-statutory reserva-
tions; there are also anti-statutory interpretations of certain reserva-
tions.”

While in the oral argument reference was made by Spain to “invalidity”
and “nullity”, and to the reservation being without effect and applying to
“nothing”, here again the emphasis was on the need for an interpretation
of the reservation that would be compatible with international law.

41. Accordingly, the Court concludes that Spain contends that the
interpretation of paragraph 2 (d) of its declaration sought for by Canada

23
452 FISHERIES JURISDICTION (JUDGMENT)

would not only be an anti-statutory interpretation, but also an anti-
Charter interpretation and an anti-general international law interpre-
tation, and thus should not be accepted. The issue for the Court is conse-
quently to determine whether the meaning to be accorded to the Canadian
reservation allows the Court to declare that it has jurisdiction to adju-
dicate upon the dispute brought before it by Spain’s Application.

xk %

42. Spain and Canada have both recognized that States enjoy a wide
liberty in formulating, limiting, modifying and terminating their declara-
tions of acceptance of the compulsory jurisdiction of the Court under
Article 36, paragraph 2, of the Statute. They equally both agree that
a reservation is an integral part of a declaration accepting jurisdiction.

43. However, different views were proffered as to the rules of interna-
tional law applicable to the interpretation of reservations to optional dec-
larations made under Article 36, paragraph 2, of the Statute. In Spain’s
view, such reservations were not to be interpreted so as to allow reserving
States to undermine the system of compulsory jurisdiction. Moreover,
the principle of effectiveness meant that a reservation must be interpreted
by reference to the object and purpose of the declaration, which was the
acceptance of the compulsory jurisdiction of the Court. Spain did not
accept that it was making the argument that reservations to the compul-
sory jurisdiction of the Court should be interpreted restrictively; it
explained its position in this respect in the following terms:

“It is said that Spain argues for the most restrictive scope permit-
ted of reservations, namely a restrictive interpretation of them . . .
This is not true. Spain supports the most limited scope permitted in
the context of observing of the general rule of interpretation laid
down in Article 31 of the Vienna Convention on the Law of Trea-
ties.”

Spain further contended that the contra proferentem rule, under which,
when a text is ambiguous, it must be construed against the party who
drafted it, applied in particular to unilateral instruments such as declara-
tions of acceptance of the compulsory jurisdiction of the Court and the
reservations which they contained. Finally, Spain emphasized that a res-
ervation to the acceptance of the Court’s jurisdiction must be interpreted
so as to be in conformity with, rather than contrary to, the Statute of the
Court, the Charter of the United Nations and general international law.

For its part, Canada emphasized the unilateral nature of such declara-
tions and reservations and contended that the latter were to be inter-
preted in a natural way, in context and with particular regard for the
intention of the reserving State.

44. The Court recalls that the interpretation of declarations made

24
453 FISHERIES JURISDICTION (JUDGMENT)

under Article 36, paragraph 2, of the Statute, and of any reservations
they contain, is directed to establishing whether mutual consent has been
given to the jurisdiction of the Court.

It is for each State, in formulating its declaration, to decide upon the
limits it places upon its acceptance of the jurisdiction of the Court: “This
jurisdiction only exists within the limits within which it has been accepted”
(Phosphates in Morocco, Judgment, 1938, P.C.LJ., Series AlB, No. 74,
p. 23). Conditions or reservations thus do not by their terms derogate
from a wider acceptance already given. Rather, they operate to define the
parameters of the State’s acceptance of the compulsory jurisdiction of the
Court. There is thus no reason to interpret them restrictively. All ele-
ments in a declaration under Article 36, paragraph 2, of the Statute
which, read together, comprise the acceptance by the declarant State of
the Court’s jurisdiction, are to be interpreted as a unity, applying the
same legal principles of interpretation throughout.

45. This is true even when, as in the present case, the relevant expres-
sion of a State’s consent to the Court’s jurisdiction, and the limits to that
consent, represent a modification of an earlier expression of consent,
given within wider limits. An additional reservation contained in a new
declaration of acceptance of the Court’s jurisdiction, replacing an earlier
declaration, is not to be interpreted as a derogation from a more com-
prehensive acceptance given in that earlier declaration; thus, there is no
reason to interpret such a reservation restrictively. Accordingly, it is the
declaration in existence that alone constitutes the unity to be interpreted,
with the same rules of interpretation applicable to alli its provisions,
including those containing reservations.

46. A declaration of acceptance of the compulsory jurisdiction of the
Court, whether there are specified limits set to that acceptance or not, is
a unilateral act of State sovereignty. At the same time, it establishes a
consensual bond and the potential for a jurisdictional link with the other
States which have made declarations pursuant to Article 36, paragraph 2,
of the Statute, and “makes a standing offer to the other States party to
the Statute which have not yet deposited a declaration of acceptance”
(Land and Maritime Boundary between Cameroon and Nigeria, Prelimi-
nary Objections, I.C.J. Reports 1998, p. 291, para. 25). The régime relat-
ing to the interpretation of declarations made under Article 36 of the
Statute is not identical with that established for the interpretation of trea-
ties by the Vienna Convention on the Law of Treaties (ibid, p. 293,
para. 30). Spain has suggested in its pleadings that “[t]his does not mean
that the legal rules and the art of interpreting declarations (and reserva-
tions) do not coincide with those governing the interpretation of trea-
ties”. The Court observes that the provisions of that Convention may
only apply analogously to the extent compatible with the sui generis
character of the unilateral acceptance of the Court’s jurisdiction.

25
454 FISHERIES JURISDICTION (JUDGMENT)

47. In the event, the Court has in earlier cases elaborated the appro-
priate rules for the interpretation of declarations and reservations. Every
declaration “must be interpreted as it stands, having regard to the words
actually used” (Anglo-Iranian Oil Co., Preliminary Objection, Judgment,
LC J. Reports 1952, p. 105). Every reservation must be given effect “as
it stands” (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957,
p. 27). Therefore, declarations and reservations are to be read as a whole.
Moreover, “the Court cannot base itself on a purely grammatical inter-
pretation of the text. It must seek the interpretation which is in harmony
with a natural and reasonable way of reading the text.” (Anglo-Iranian
Oil Co., Preliminary Objection, Judgment, [I.C.J. Reports 1952, p. 104.)

48. At the same time, since a declaration under Article 36, para-
graph 2, of the Statute, is a unilaterally drafted instrument, the Court has
not hesitated to place a certain emphasis on the intention of the depos-
iting State. Indeed, in the case concerning Anglo-Iranian Oil Co., the
Court found that the limiting words chosen in Iran’s declaration were “a
decisive confirmation of the intention of the Government of Iran at the
time when it accepted the compulsory jurisdiction of the Court” (ibid,
p. 107).

49. The Court will thus interpret the relevant words of a declaration
including a reservation contained therein in a natural and reasonable
way, having due regard to the intention of the State concerned at the time
when it accepted the compulsory jurisdiction of the Court. The intention
of a reserving State may be deduced not only from the text of the relevant
clause, but also from the context in which the clause is to be read, and an
examination of evidence regarding the circumstances of its preparation
and the purposes intended to be served. In the Aegean Sea Continental
Shelf case, the Court affirmed that it followed clearly from its jurispru-
dence that in interpreting the contested reservation

“regard must be paid to the intention of the Greek Government at
the time when it deposited its instrument of accession to the General
Act; and it was with that jurisprudence in mind that the Court asked
the Greek Government to furnish it with any available evidence of
explanations of the instrument of accession given at that time”
(Aegean Sea Continental Shelf, Judgment, I CJ. Reports 1978,
p. 29, para. 69).

In the present case the Court has such explanations in the form of Cana-
dian ministerial statements, parliamentary debates, legislative proposals
and press communiqués.

50. Where, moreover, an existing declaration has been replaced by a
new declaration which contains a reservation, as in this case, the inten-
tions of the Government may also be ascertained by comparing the terms
of the two instruments.

51. The contra proferentem rule may have a role to play in the inter-
pretation of contractual provisions. However, it follows from the fore-

26
455 FISHERIES JURISDICTION (JUDGMENT)

going analysis that the rule has no role to play in this case in inter-
preting the reservation contained in the unilateral declaration made by
Canada under Article 36, paragraph 2, of the Statute.

52. The Court was addressed by both Parties on the principle of effec-
tiveness. Certainly, this principle has an important role in the law of trea-
ties and in the jurisprudence of this Court; however, what is required in
the first place for a reservation to a declaration made under Article 36,
paragraph 2, of the Statute, is that it should be interpreted in a manner
compatible with the effect sought by the reserving State.

53. Spain has contended that, in case of doubt, reservations contained
in declarations are to be interpreted consistently with legality and that
any interpretation which is inconsistent with the Statute of the Court,
the Charter of the United Nations or with general international law is
inadmissible. Spain draws attention to the following finding of the
Court in the Right of Passage over Indian Territory case, where the
Court had to rule on the compatibility of a reservation with the Statute:

“It is a rule of interpretation that a text emanating from a Gov-
ernment must, in principle, be interpreted as producing and as
intended to produce effects in accordance with existing law and not
in violation of it.” (Right of Passage over Indian Territory, Prelimi-
nary Objections, Judgment, I C.J. Reports 1957, p. 142.)

Spain argues that, to comply with these precepts, it is necessary to inter-
pret the phrase “disputes arising out of or concerning conservation and
management measures taken by Canada with respect to vessels fishing in
the NAFO Regulatory Area . .. and the enforcement of such measures”
to refer only to measures which, since they relate to areas of the high
seas, must come within the framework of an existing international agree-
ment or be directed at stateless vessels. It further argues that an enforce-
ment of such measures which involves a recourse to force on the high seas
against vessels flying flags of other States could not be consistent with
international law and that this factor too requires an interpretation of the
reservation different from that given to it by Canada.

54. Spain’s position is not in conformity with the principle of interpre-
tation whereby a reservation to a declaration of acceptance of the com-
pulsory jurisdiction of the Court is to be interpreted in a natural and
reasonable way, with appropriate regard for the intentions of the reserv-
ing State and the purpose of the reservation. In point of fact, reservations
from the Court’s jurisdiction may be made by States for a variety of rea-
sons; sometimes precisely because they feel vulnerable about the legality
of their position or policy. Nowhere in the Court’s case-law has it been
suggested that interpretation in accordance with the legality under inter-
national law of the matters exempted from the jurisdiction of the Court is
a rule that governs the interpretation of such reservations:

27
456 FISHERIES JURISDICTION (JUDGMENT)

“Declarations of acceptance of the compulsory jurisdiction of the
Court are facultative, unilateral engagements, that States are abso-
lutely free to make or not to make. In making the declaration a State
is equally free either to do so unconditionally and without limit of
time for its duration, or to qualify it with conditions or reserva-
tions.” (Military and Paramilitary Activities in and against Nicara-
gua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I C.J. Reports 1984, p. 418, para. 59.)

The holding of the Court relied on by Spain in the Right of Passage over
Indian Territory case, which was concerned with a possible retroactive
effect of a reservation, does not detract from this principle. The fact that
a State may lack confidence as to the compatibility of certain of its
actions with international law does not operate as an exception to the
principle of consent to the jurisdiction of the Court and the freedom to
enter reservations.

55. There is a fundamental distinction between the acceptance by a
State of the Court’s jurisdiction and the compatibility of particular acts
with international law. The former requires consent. The latter question
can only be reached when the Court deals with the merits, after having
established its jurisdiction and having heard full legal argument by both
parties.

56. Whether or not States accept the jurisdiction of the Court, they
remain in all cases responsible for acts attributable to them that violate
the rights of other States. Any resultant disputes are required to be
resolved by peaceful means, the choice of which, pursuant to Article 33
of the Charter, is left to the parties.

* * *

57. In order to determine whether the Parties have accorded to the
Court jurisdiction over the dispute brought before it, the Court must now
interpret subparagraph (d) of paragraph 2 of Canada’s declaration,
having regard to the rules of interpretation which it has just set out.

#k O*

58. However, before commencing its examination of the text of the
reservation itself, the Court feels bound to make two observations which
it considers essential in order to ascertain the intention which underlay
the adoption of that text. The first of these concerns the importance
attaching to the reservation in the light of the acceptance by Canada of
the Court’s jurisdiction; the second concerns the relationship between
that reservation and the Canadian coastal fisheries protection legislation.

59. The Court has already pointed out (see paragraph 14 above) that
the current Canadian declaration replaced a previous one, dated 10 Sep-
tember 1985. The new declaration differs from its predecessor in one
respect only: the addition, to paragraph 2, of a subparagraph (d) con-

28
457 FISHERIES JURISDICTION (JUDGMENT)

taining the reservation in question. It follows that this reservation is not
only an integral part of the current declaration but also an essential com-
ponent of it, and hence of the acceptance by Canada of the Court’s com-
pulsory jurisdiction.

60. As regards the objectives which the reservation was intended to
achieve, the Court is bound to note, in view of the facts as summarized
above (paragraphs 14 ef seg.), the close links between Canada’s new dec-
laration and its new coastal fisheries protection legislation. The new dec-
laration was deposited with the Secretary-General on 10 May 1994, that
is to say the very same day that Bill C-29 was submitted to the Canadian
Parliament; moreover, the terms in which Canada accepted the compul-
sory jurisdiction of the Court on that day echo those of the Bill then
under discussion. Furthermore, it is evident from the parliamentary
debates and the various statements of the Canadian authorities that the
purpose of the new declaration was to prevent the Court from exercising
its jurisdiction over matters which might arise with regard to the inter-
national legality of the amended legislation and its implementation.
Thus on 10 May 1994 Canada issued a News Release on “Foreign Over-
fishing”, explaining its policy in this field and adding that:

“Canada has today amended its acceptance of the compulsory
jurisdiction of the International Court of Justice in the Hague to
preclude any challenge which might undermine Canada’s ability to
protect the stocks. This is a temporary step in response to an emer-
gency situation.”

Further, on 12 May 1994, the Canadian Minister for Foreign Affairs
made the following statement in the Senate:

“As you know, to protect the integrity of this legislation, we
registered a reservation to the International Court of Justice, explain-
ing that this reservation would of course be temporary . . .”

* *

61. The Court recalls that subparagraph 2 (d) of the Canadian decla-
ration excludes the Court’s jurisdiction in the following terms:

“disputes arising out of or concerning conservation and manage-
ment measures taken by Canada with respect to vessels fishing in the
NAFO Regulatory Area, as defined in the Convention on Future
Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978,
and the enforcement of such measures” (see paragraph 14 above).

Canada contends that the dispute submitted to the Court is precisely of
the kind envisaged by the cited text; it falls entirely within the terms of
the subparagraph and the Court accordingly has no jurisdiction to enter-
tain it.

29
458 FISHERIES JURISDICTION (JUDGMENT)

For Spain, on the other hand, whatever Canada’s intentions, they were
not achieved by the words of the reservation, which does not cover the
dispute; thus the Court has jurisdiction. In support of this view Spain
relies on four main arguments: first, the dispute which it has brought
before the Court falls outside the terms of the Canadian reservation by
reason of its subject-matter; secondly, the amended Coastal Fisheries
Protection Act and its implementing regulations cannot, in international
law, constitute “conservation and management measures”; thirdly, the
reservation covers only “vessels” which are stateless or flying a flag of
convenience; and fourthly, the pursuit, boarding and seizure of the Estai
cannot be regarded in international law as “the enforcement of . . .” con-
servation and management “measures”. The Court will examine each of
these arguments in turn.

*

62. The Court will begin by pointing out that, in excluding from its
jurisdiction “disputes arising out of or concerning” the conservation and
management measures in question and their enforcement, the reservation
does not reduce the criterion for exclusion to the “subject-matter” of the
dispute. The language used in the English version — “disputes arising out
of or concerning” — brings out more clearly the broad and comprehensive
character of the formula employed. The words of the reservation exclude
not only disputes whose immediate “subject-matter” is the measures in
question and their enforcement, but also those “concerning” such mea-
sures and, more generally, those having their “origin” in those measures
(“arising out of”) — that is to say, those disputes which, in the absence of
such measures, would not have come into being. Thus the scope of the
Canadian reservation appears even broader than that of the reservation
which Greece attached to its accession to the General Act of 1928 (“dis-
putes relating to the territorial status of Greece”), which the Court was
called upon to interpret in the case concerning the Aegean Sea Continen-
tal Shelf (1 C.J. Reports 1978, p. 34, para. 81, and p. 36, para. 86).

63. The Court has already found, in the present case, that a dispute
does exist between the Parties, and it has identified that dispute (see para-
graph 35 above). It must now determine whether that dispute has as its
subject-matter the measures mentioned in the reservation or their enforce-
ment, or both, or concerns those measures, or arises out of them. In
order to do this, the fundamental question which the Court must now
decide is the meaning to be given to the expression “conservation and
management measures...” and “enforcement of such measures” in the
context of the reservation.

+

64. Spain recognizes that the term “measure” is “an abstract word sig-
nifying an act or provision, a démarche or the course of an action, con-

30
459 FISHERIES JURISDICTION (JUDGMENT)

ceived with a precise aim in view” and that in consequence, in its most
general sense, the expression “conservation and management measure”
must be understood as referring to an act, step or proceeding designed
for the purpose of the “conservation and management of fish”.

However, in Spain’s view this expression, in the particular context of
the Canadian reservation, must be interpreted more restrictively.

Initially, Spain contended that the reservation did not apply to the
Canadian legislation, which merely represented “the legal title which
[was] the origin and basis of the prohibition of fishing on the high seas”,
or “frame of reference”. The reservation covered only “the consequences
of that Act for the conservation and management of resources”, that is to
say “the actual procedures for enforcement or implementation of the
Act”. However, in oral argument, it no longer pursued this point.

Spain’s main argument, on which it relied throughout the proceedings,
is that the term “conservation and management measures” must be inter-
preted here in accordance with international law and that in consequence
it must, in particular, exclude any unilateral “measure” by a State which
adversely affected the rights of other States outside that State’s own area
of jurisdiction. Hence, in international law only two types of measures
taken by a coastal State could, in practice, be regarded as “conservation
and management measures”: those relating to the State’s exclusive eco-
nomic zone; and those relating to areas outside that zone, in so far as
these came within the framework of an international agreement or were
directed at stateless vessels. Measures not satisfying these conditions were
not conservation and management measures but unlawful acts pure and
simple. In the course of this argument, Spain referred to Article | (1) (b)
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 referred to as the “United
Nations Agreement on Straddling Stocks of 1995”), which reads as
follows

“1. For the purposes of this Agreement:
(b) ‘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 rele-

vant rules of international law as reflected in the Convention
and this Agreement.”

65. Canada, by contrast, stresses the very wide meaning of the word
“measure”. It takes the view that this is a “generic term”, which is used
in international conventions to encompass statutes, regulations and
administrative action.

31
460 FISHERIES JURISDICTION (JUDGMENT)

Canada further argues that the expression “conservation and manage-
ment measures” is “descriptive” and not “normative”; it covers “the
whole range of measures taken by States with respect to the living
resources of the sea”. Canada further states that “a generic category is
never limited to the known examples it contains”. Finally, Canada con-
tends that the United Nations Agreement on Straddling Stocks of 1995 is
not relevant for the purpose of determining the general meaning of the
expression in question and its possible scope in other legal instruments.

66. The Court need not linger over the question whether a “measure”
may be of a “legislative” nature. As the Parties have themselves agreed,
in its ordinary sense the word is wide enough to cover any act, step or
proceeding, and imposes no particular limit on their material content or
on the aim pursued thereby. Numerous international conventions include
“laws” among the “measures” to which they refer (see for example, as
regards “conservation and management measures”, Articles 61 and 62 of
the 1982 United Nations Convention on the Law of the Sea). There is no
reason to suppose that any different treatment should be applied to the
Canadian reservation, the text of which itself refers not to measures
adopted by the executive but simply to “Canada”, that is to say the State
as a whole, of which the legislature is one constituent part. Moreover, as
the Court has already pointed out (see paragraph 60), the purpose of the
reservation was specifically to protect “the integrity” of the Canadian
coastal fisheries protection legislation. Thus to take the contrary view
would. be to disregard the evident intention of the declarant and to
deprive the reservation of its effectiveness.

67. The Court would further point out that, in the Canadian legisla-
tive system as in that of many other countries, a statute and its imple-
menting regulations cannot be dissociated. The statute establishes the
general legal framework and the regulations permit the application of the
statute to meet the variable and changing circumstances through a period
of time. The regulations implementing the statute can have no legal exist-
ence independently of that statute, while conversely the statute may
require implementing regulations to give it effect.

68. The Court shares with Spain the view that an international instru-
ment must be interpreted by reference to international law. However, in
arguing that the expression “conservation and management measures” as
used in the Canadian reservation can apply only to measures “in con-
formity with international law”, Spain would appear to mix two issues. It
is one thing to seek to determine whether a concept is known to a system
of law, in this case international law, whether it falls within the categories
proper to that system and whether, within that system, a particular
meaning attaches to it: the question of the existence and content of the
concept within the system is a matter of definition. It is quite another
matter to seek to determine whether a specific act falling within the scope
of a concept known to a system of law violates the normative rules of
that system: the question of the conformity of the act with the system is
a question of legality.

32
461 FISHERIES JURISDICTION (JUDGMENT)

69. At this stage of the proceedings, the task of the Court is simply to
determine whether it has jurisdiction to entertain the dispute. To this end
it must interpret the terms of the Canadian reservation, and in particular
the meaning attaching in the light of international law to the expression
“conservation and management measures” as used in that reservation.

70. According to international law, in order for a measure to be char-
acterized as a “conservation and management measure”, it is sufficient
that its purpose is to conserve and manage living resources and that, to
this end, it satisfies various technical requirements.

It is in this sense that the terms “conservation and management mea-
sures” have long been understood by States in the treaties which they
conclude. Notably, this is the sense in which “conservation and manage-
ment measures” is used in paragraph 4 of Article 62 of the 1982 United
Nations Convention on the Law of the Sea (see also 1923 Convention
between the United States of America and Canada for the Preservation
of the Halibut Fisheries of the Northern Pacific Ocean, especially Ar-
ticles 1 and 2; 1930 Convention between the United States of America
and Canada for the Preservation of the Halibut Fisheries of the Northern
Pacific Ocean and Bering Sea, Arts. 1, 2 and 3; 1949 International Con-
vention for the Northwest Atlantic Fisheries, Art. IV (2) and especially
Art. VIII; 1959 North-East Atlantic Fisheries Convention, Art. 7; 1973
Convention on Fishing and Conservation of the Living Resources in the
Baltic Sea and the Belts, Art. I and especially Art. X. Cf. 1958 Geneva
Convention on Fishing and Conservation of the Living Resources of the
High Seas, Art. 2). The same usage is to be found in the practice of
States. Typically, in their enactments and administrative acts, States
describe such measures by reference to such criteria as: the limitation of
catches through quotas; the regulation of catches by prescribing periods
and zones in which fishing is permitted; and the setting of limits on the
size of fish which may be caught or the types of fishing gear which may be
used (see, among very many examples, Algerian Legislative Decree
No. 94-13 of 28 May 1994, establishing the general rules relating to fish-
eries; Argentine Law No. 24922 of 6 January 1998, establishing the Fed-
eral Fishing Régime; Malagasy Ordinance No. 93-022 of 1993 regulating
fishing and aquaculture; New Zealand Fisheries Act 1996; as well as, for
the European Union, the basic texts formed by Regulation (EEC)
No. 3760/92 of 20 December 1992, establishing a Community system for
fisheries and aquaculture, and Regulation (EC) No. 894/97 of 29 April
1997, laying down certain technical measures for the conservation of fish-
eries resources. For NAFO practice, see its document entitled Conserva-
tion and Enforcement Measures (NAFO/FC/Doc. 96/1)). International
law thus characterizes “conservation and management measures” by ref-
erence to factual and scientific criteria.

In certain international agreements (for example the United Nations

33
462 FISHERIES JURISDICTION (JUDGMENT)

Agreement on Straddling Stocks of 1995 and the “Agreement to Promote
Compliance with International Conservation and Management Measures
by Fishing Vessels on the High Seas” (FAO, 1993), neither of which has
entered into force) the parties have expressly stipulated, “for purposes of
th[e] Agreement”, that what is generally understood by “conservation
and management measures” must comply with the obligations of inter-
national law that they have undertaken pursuant to these agreements,
such as, compatibility with maximum sustainable yield, concern for the
needs of developing States, the duty to exchange scientific data, effective
flag State control of its vessels, and the maintenance of detailed records
of fishing vessels.

The question of who may take conservation and management mea-
sures, and the areas to which they may relate, is neither in international
law generally nor in these agreements treated as an element of the defini-
tion of conservation and management measures. The authority from
which such measures derive, the area affected by them, and the way in
which they are to be enforced do not belong to the essential attributes
intrinsic to the very concept of conservation and management measures;
they are, in contrast, elements to be taken into consideration for the pur-
pose of determining the legality of such measures under international
law.

71. Reading the words of the reservation in a “natural and reason-
able” manner, there is nothing which permits the Court to conclude that
Canada intended to use the expression “conservation and management
measures” in a sense different from that generally accepted in interna-
tional law and practice. Moreover, any other interpretation of that
expression would deprive the reservation of its intended effect.

72. The Court has already given a brief description of the amendments
made by Canada on 12 May 1994 to the Coastal Fisheries Protection Act
and on 25 May 1994 and 3 March 1995 to the Coastal Fisheries Protec-
tion Regulations (see paragraphs 15, 17 and 18).

It is clear on reading Section 5.2 of the amended Act that its sole pur-
pose is to prohibit certain sorts of fishing, while Sections 7, 7.1 and 8.1
prescribe the means for giving effect to that prohibition. The same
applies to the corresponding provisions of the amended Regulations. In
its version of 25 May 1994, subsection 2 of Section 21 of the Regulations,
which implements Section 5.2 of the Act, defines the protected straddling
stocks and “the prescribed classes” of vessels, and states that for such
vessels “a prohibition against fishing for straddling stocks, preparing to
fish for straddling stocks or catching and retaining straddling stocks is
a prescribed conservation and management measure”. Table V to Sec-
tion 21 of the Regulations as amended on 3 March 1995 lists seven types
of “conservation and management measures” applicable to ships flying
the Spanish or Portuguese flag; the first two of these specify the species of
fish in respect of which fishing is prohibited in certain areas and during

34
463 FISHERIES JURISDICTION (JUDGMENT)

certain periods; the next two specify the types of fishing gear which are
prohibited; the fifth lays down size limits; while the last two lay down
certain rules with which ships must comply in connection with inspection
by protection officers.

73. The Court concludes from the foregoing that the “measures” taken
by Canada in amending its coastal fisheries protection legislation and
regulations constitute “conservation and management measures” in the
sense in which that expression is commonly understood in international
law and practice and has been used in the Canadian reservation.

*

74, The conservation and management measures to which this reserva-
tion refers are measures “taken by Canada with respect to vessels fishing
in the NAFO Regulatory Area, as defined in the Convention on Future
Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978”.

Article I, paragraph 2, of that Convention defines the NAFO “Regu-
latory Area” as “that part of the Convention Area which lies beyond the
areas in which coastal States exercise fisheries jurisdiction”; paragraph 1
of this same Article states that the “Convention Area” is “the area to
which this Convention applies” and defines that area by reference to geo-
graphical co-ordinates.

The NAFO “Regulatory Area” is therefore indisputably part of the
high seas. The Court need not return to the doubts which this part of the
reservation may have raised on the Spanish side, in view of the construc-
tion placed by the latter on the expression “conservation and manage-
ment measures”. For its part the Court has determined that this expres-
sion must be construed in a general and customary sense, without any
special connotations with regard to place.

75. Thus the only remaining issue posed by this part of the reservation
is the meaning to be attributed to the word “vessels”. Spain argues that it
is clear from the parliamentary debates which preceded the adoption of
Bill C-29 that the latter was intended to apply only to stateless vessels or
to vessels flying a flag of convenience. It followed, according to Spain —
in view of the close links between the Act and the reservation — that the
latter also covered only measures taken against such vessels.

Canada accepts that, when Bill C-29 was being debated, there were a
number of references to stateless vessels and to vessels flying flags of con-
venience, for at the time such vessels posed the most immediate threat to
the conservation of the stocks that it sought to protect. However, Canada
denies that its intention was to restrict the scope of the Act and the res-
ervation to these categories of vessels.

76. The Court will begin by once again pointing out that declarations

35
464 FISHERIES JURISDICTION (JUDGMENT)

of acceptance of its jurisdiction must be interpreted in a manner which is
in harmony with the “natural and reasonable” way of reading the text,
having due regard to the intention of the declarant. The Canadian reser-
vation refers to “vessels fishing . . .”, that is to say all vessels fishing in the
area in question, without exception. It would clearly have been simple
enough for Canada, if this had been its real intention, to qualify the word
“vessels” so as to restrict its meaning in the context of the reservation. In
the opinion of the Court the interpretation proposed by Spain cannot be
accepted, for it runs contrary to a clear text, which, moreover, appears to
express the intention of its author.

77. Furthermore, the Court cannot share the conclusions drawn by
Spain from the parliamentary debates cited by it. It is, indeed, evident
from the replies given by the Canadian Ministers of Fisheries and Oceans
and for Foreign Affairs to the questions put to them in the House of
Commons and in the Senate that at that time the principal target of the
Bill was stateless vessels and those flying flags of convenience; however,
these were not the only vessels covered. Thus the Minister of Fisheries
and Oceans expressed himself as follows before the House of Commons:

“as to what is meant by ‘vessels of a prescribed class’, it is simply a
reference that allows the government to prescribe or designate a
class, a type or kind of vessel we have determined is fishing in a man-
ner inconsistent with conservation rules and therefore against which
conservation measures could be taken.

For example, we could prescribe stateless vessels. Another
example is that we could prescribe flags of convenience. That is all
that is meant.” (Emphasis added.)

Similarly, the Minister for Foreign Affairs stated in the Senate:

“We have said from the outset, and Canada’s representatives
abroad in our various embassies have explained to our European
partners and other parties, that this measure is directed first of all
toward vessels that are unflagged or that operate under so-called
flags of convenience.” (Emphasis added.)

Furthermore, the following statement by the Minister of Fisheries and
Oceans to the Speaker of the House of Commons leaves no doubt as to
the scope of the proposed Act:

“The legislation gives Parliament of Canada the authority to desig-
nate any class of vessel for enforcement of conservation measures.
The legislation does not categorize whom we would enforce against.
The legislation makes clear that any vessel fishing in a manner
inconsistent with good, widely acknowledged conservation rules
could be subject to action by Canada. We cite as an example the

36
465 FISHERIES JURISDICTION (JUDGMENT)

NAFO conservation rules. Any vessel from any nation fishing at
variance with good conservation rules could under the authority
granted in the legislation be subject to action by Canada. There are
no exceptions.”

This is confirmed by the inclusion in the “prescribed classes of foreign
fishing vessels”, as a result of the amendment of 3 March 1995, of vessels
flying the Spanish and Portuguese flags (see paragraph 18 above). Indeed,
it should not be forgotten that, through the enactment of the legislation
by means of regulations as well as statute, from the outset the potential
was deliberately left open to add prescribed classes of vessels, the term
“class” referring not only to types of vessels but also to the flags the ves-
sels were flying.

Ba

78. The Court must now examine the phrase “and the enforcement of
such measures”, on the meaning and scope of which the Parties disagree.
Spain contends that an exercise of jurisdiction by Canada over a Spanish
vessel on the high seas entailing the use of force falls outside of Canada’s
reservation to the Court’s jurisdiction. Spain advances several related
arguments in support of this thesis. First, Spain says that the use of force
by one State against a fishing vessel of another State on the high seas is
necessarily contrary to international law; and as Canada’s reservation
must be interpreted consistently with legality, it may not be interpreted to
subsume such use of force within the phrase “the enforcement of such
measures”. Spain further asserts that the particular use of force directed
against the Estai was in any event unlawful and amounted to a violation
of Article 2, paragraph 4, of the Charter, giving rise to a separate cause of
action not caught by the reservation.

79. The Court has already indicated that there is no rule of interpreta-
tion which requires that reservations be interpreted so as to cover only
acts compatible with international law. As explained above, this is to
confuse the legality of the acts with consent to jurisdiction (see para-
graphs 55 and 56 above). Thus the Court has no need to consider further
these aspects of Spain’s argument.

80. By Section 18.1 of the 1994 Act, the enforcement of its provisions
in the NAFO Regulatory Area was made subject to the application of
criminal law. In turn, Section 25 of the Criminal Code was amended fol-
lowing the adoption of Bill C-8 (see paragraph 16 above). Spain contends
in this context that Canada has thus provided for penal measures related
to the criminal law and not enforcement of conservation and manage-
ment measures. Spain also contends that the expression “enforcement of
such measures” in paragraph 2 (d) of Canada’s declaration contained no
mention of the use of force and that the expression should not be inter-
preted to include it — not least because the relevant provisions of the

37
466 FISHERIES JURISDICTION (JUDGMENT)

1982 United Nations Law of the Sea Convention relating to enforcement
measures also make no mention of the use of force.

81. The Court notes that, following the adoption of Bill C-29, the
Coastal Fisheries Protection Act authorized protection officers to board
and inspect any fishing vessel in the NAFO Regulatory Area and “in
the manner and to the extent prescribed by the regulations, use force
that is intended or is likely to disable a foreign fishing vessel’, if the
officer “believes on reasonable grounds that the force is necessary for
the purpose of arresting” the master or crew (Section 8.1). Such pro-
visions are of a character and type to be found in legislation of various
nations dealing with fisheries conservation and management, as well
as in Article 22 (1) (f) of the United Nations Agreement on Straddling
Stocks of 1995.

82. The Coastal Fisheries Protection Regulations Amendment of May
1994 specifies in further detail that force may be used by a protection
officer under Section 8.1 of the Act only when he is satisfied that board-
ing cannot be achieved by “less violent means reasonable in the circum-
stances” and if one or more warning shots have been fired at a safe
distance (Sections 19.4 and 19.5). These limitations also bring the author-
ized use of force within the category familiar in connection with enforce-
ment of conservation measures.

83. As to Spain’s contention that Section 18.1 of the 1994 Act and the
amendment of Section 25 of the Criminal Code constitute measures of
penal law other than enforcement of fisheries conservation measures, and
thus fall outside of the reservation, the Court notes that the purpose of
these enactments appears to have been to control and limit any author-
ized use of force, thus bringing it within the general category of measures
in enforcement of fisheries conservation.

84. For all of these reasons the Court finds that the use of force
authorized by the Canadian legislation and regulations falls within the
ambit of what is commonly understood as enforcement of conservation
and management measures and thus falls under the provisions of para-
graph 2 (d) of Canada’s declaration. This is so notwithstanding that the
reservation does not in terms mention the use of force. Boarding, inspec-
tion, arrest and minimum use of force for those purposes are all con-
tained within the concept of enforcement of conservation and manage-
ment measures according to a “natural and reasonable” interpretation of
this concept.

38
467 FISHERIES JURISDICTION (JUDGMENT)

85. In this Judgment, the Court has had to interpret the words of the
Canadian reservation in order to determine whether or not the acts of
Canada, of which Spain complains, fall within the terms of that reserva-
tion, and hence whether or not it has jurisdiction. For this purpose the
Court has not had to scrutinize or prejudge the legality of the acts
referred to in paragraph 2 (d) of Canada’s declaration.

Because the lawfulness of the acts which the reservation to the Canadian
declaration seeks to exclude from the jurisdiction of the Court has no rele-
vance for the interpretation of the terms of that reservation, the Court has
no reason to apply Article 79, paragraph 7, of its Rules in order to declare
that Canada’s objection to the jurisdiction of the Court does not possess,
in the circumstances of the case, an exclusively preliminary character.

* *

86. In the course of the proceedings Spain argued that the reservation
contained in paragraph 2 (d) of Canada’s declaration might be thought
to have the characteristics of an “automatic reservation” and thus be in
breach of Article 36, paragraph 6, of the Statute. It is clear from the
Court’s interpretation of the reservation as set out above that it cannot
be regarded as having been drafted in terms such that its application
would depend upon the will of its author. The Court has had full free-
dom to interpret the text of the reservation, and its reply to the question
whether or not it has jurisdiction to entertain the dispute submitted to it
depends solely on that interpretation.

x * +

87. In the Court’s view, the dispute between the Parties, as it has been
identified in paragraph 35 of this Judgment, had its origin in the amend-
ments made by Canada to its coastal fisheries protection legislation and
regulations and in the pursuit, boarding and seizure of the Estai which
resulted therefrom. Equally, the Court has no doubt that the said dispute
is very largely concerned with these facts. Having regard to the legal
characterization placed by the Court upon those facts, it concludes that
the dispute submitted to it by Spain constitutes a dispute “arising out of”
and “concerning” “conservation and management measures taken by
Canada with respect to vessels fishing in the NAFO Regulatory Area”
and “the enforcement of such measures”. It follows that this dispute
comes within the terms of the reservation contained in paragraph 2 (d)
of the Canadian declaration of 10 May 1994. The Court consequently
has no jurisdiction to adjudicate upon the present dispute.

x * x

88. Finally, the Court notes that, in its Counter-Memorial of February
1996, Canada maintained that any dispute with Spain had been settled,

39
468 FISHERIES JURISDICTION (JUDGMENT)

since the filing of the Application, by the agreement concluded on
20 April 1995 between the European Community and Canada, and that
the Spanish submissions were now without object. However, at the begin-
ning of Canada’s oral argument, its Agent informed the Court that his
Government intended to challenge the Court’s jurisdiction solely on the
basis of its reservation: “It is on this problem, and no other, that the
Court is called upon to rule.” This position was confirmed at the end of
the oral proceedings. Spain nonetheless draws attention to the “Court’s
statutory duty to verify the existence of a dispute between States in order
to exercise its function”.

It is true that it is for the Court to satisfy itself, whether at the instance
of a party or proprio motu, that a dispute has not become devoid of pur-
pose since the filing of the Application and that there remains reason to
adjudicate that dispute (see Northern Cameroons (Cameroon v. United
Kingdom), Preliminary Objections, Judgment, LC.J. Reports 1963,
p. 38; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 271, para. 58). The Court has, however, reached the conclusion
in the present case that it has no jurisdiction to adjudicate the dispute
submitted to it by Spain (see paragraph 87 above). That being so, in the
view of the Court it is not required to determine proprio motu whether or
not that dispute is distinct from the dispute which was the subject of the
Agreement of 20 April 1995 between the European Community and
Canada, and whether or not the Court would have to find it moot.

89. For these reasons,

THE COURT,
By twelve votes to five,

Finds that it has no jurisdiction to adjudicate upon the dispute brought
before it by the Application filed by the Kingdom of Spain on 28 March
1995.

IN FAVOUR: President Schwebel; Judges Oda, Guillaume, Herczegh, Shi,
Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Rezek;
Judge ad hoc Lalonde;

AGAINST: Vice-President Weeramantry; Judges Bedjaoui, Ranjeva, Veresh-
chetin; Judge ad hoc Torres Bernardez.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this fourth day of December, one thousand
nine hundred and ninety-eight, in three copies, one of which will be

40
469 FISHERIES JURISDICTION (JUDGMENT)

placed in the archives of the Court and the others transmitted to the
Government of the Kingdom of Spain and the Government of Canada
respectively.

(Signed) Stephen M. SCHWEBEL,
President.

(Signed) Eduardo VALENCIA-OsPINA,
Registrar.

President SCHWEBEL and Judges OpA, KoRoMA and KOoIMANS append
separate opinions to the Judgment of the Court.

Vice-President WEERAMANTRY, Judges BEDJAOUI, RANJEVA and VERESH-
CHETIN, and Judge ad hoc TORRES BERNARDEZ append dissenting opinions
to the Judgment of the Court.

(Initialled) S.M.S.
(Initialled) E.V.O.

A1