105

SEPARATE OPINION OF JUDGE SIR HUMPHREY WALDOCK

1. lam in general agreement with both the operative part and the rea-
soning of the Judgment of the Court. As, however, there are some aspects
of the case which I consider should have received more prominence in the
Judgment, I feel it incumbent on me to deal with them in this separate
opinion.

* *

2. The Judgment refers to the Exchange of Notes of 11 March 1961
and draws certain conclusions from it regarding the United Kingdom’s
recognition of Iceland’s exceptional dependence on coastal fisheries and
regarding Iceland’s recognition of the United Kingdom’s traditional
fisheries in the waters around Iceland. It does not, however, give the 1961
Exchange of Notes the importance which, in my opinion, that agreement
necessarily has as a treaty establishing a particular legal régime governing
the relations between the parties with respect to fishing in those waters.
The 1961 Exchange of Notes, which was negotiated and concluded imme-
diately after the Second United Nations Conference on the Law of the Sea
had failed to resolve the problem of fishery limits, had as its express
object the settlement of an existing fishery dispute between Iceland and
the United Kingdom. This it did upon terms which lay down specific
rules to cover the case of a subsequent claim by Iceland to extend her
fishery jurisdiction beyond the 12-mile limit assented to by the United
Kingdom in that agreement. The result, in my view, is that the starting
point for determining the rights and obligations of the Parties in the
present case has to be the 1961 Exchange of Notes which, by its Judgment
of 2 February 1973, the Court has held to be valid, in force and applicable
to the extension of Iceland’s fishery jurisdiction now in question before
the Court.

3. The 1961 Exchange of Notes has to be read in the light of the fishery
dispute which it was designed to settle. Under varying Icelandic fishery
limits, United Kingdom fishing vessels had fished in the waters around
Iceland for some centuries, before the conclusion of the Anglo-Danish
Fishery Convention of 24 June 1901. By that Convention Denmark,
which was then internationally responsible for the foreign relations of
Iceland, in effect agreed to apply to the waters around Iceland the pro-

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visions of the North Sea Fisheries Convention of 1882 regarding fishery
limits and the regulation of fisheries. In particular, Article 2 of the 1901
Convention provided:

“The subjects of His Majesty the King of Denmark shall enjoy the
exclusive right of fishery within the distance of 3 miles from low-
water mark along the whole extent of the coasts of the said islands,
as well as of the dependent islets, rocks and banks.

As regards bays, the distance of 3 miles shall be measured from
a straight line drawn across the bay, in the part nearest the entrance,
at the first point where the width does not exceed 10 miles.”

The Convention, which was subject to termination by either party on
giving two years’ notice, remained in force until 3 October 1951, governing
the fishery relations between the United Kingdom and Iceland until that
date. Meanwhile, [celand’s separate international personality was being
increasingly recognized and she was separately represented at The Hague
Codification Conference of 1930 convened to codify, inter alia, the law of
territorial waters. At that Conference her delegate argued in favour of a
4-mile limit for Iceland as having a historical basis and being “a fair limit,
provided it were possible to have some rules for protecting the fisheries
in certain areas outside the territorial waters”. The Conference having
failed to reach any agreement on the limit of the territorial sea, British
fishing vessels continued to fish in the waters around Iceland up to the
3-mile limit under the 1901 Convention, even if at a very reduced rate
during the 1939-1945 War and immediately thereafter.

4, The end of the Second World War, however, proved to be a turning
point in the history of Icelandic fisheries. On 17 June 1944 the Althing
proclaimed the establishment of the Republic of Iceland and Iceland
became fully independent. The following year saw the issue by President
Truman, on 28 September 1945, of two Proclamations claiming for the
United States, respectively, jurisdiction over the natural resources of the
subsoil and sea-bed of the continental shelf contiguous to the United
States and the right, either alone or together with other interested States,
to establish fishery conservation zones in areas of the high seas contiguous
to its coasts. The new doctrines advanced in these Proclamations, and
especially the invocation of the continental shelf as a legal concept, pro-
vided the stimulus for a variety of new maritime claims in different
countries, including Iceland, where the public were already restive about
the fishing of foreign vessels up to three miles from their shores.

5. So it was that in 1948 the Althing passed a law entitled “Law
Concerning the Scientific Conservation of the Continental Shelf Fisher-

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ies”, which included the following provisions:

“Article 1. The Ministry of Fisheries shall issue regulations
establishing explicitly bounded conservation zones within the limits
of the continental shelf of Iceland; wherein all fisheries shall be sub-
ject to Icelandic rules and control; Provided that the conservation
measures now in effect shall in no way be reduced. The Ministry shall
further issue the necessary regulations for the protection of the
fishing grounds within the said zones. . .

Article 2, The regulations promulgated under Article | of the pre-
sent law shall be enforced only to the extent compatible with agree-
ments with other countries to which Iceland is or may become a
party.”

These provisions, if they may have owed some of their inspiration to
the two United States Proclamations, were not based on the same
principle as either of those Proclamations. The continental shelf Procla-
mation issued by President Truman asserted a claim to jurisdiction and
control over the natural resources only of the subsoil and sea-bed of the
continental shelf, expressly declaring that it in no way affected the char-
acter as high seas of the waters above it. [celand’s Law of 1948, on the
other hand, asserted a claim to be entitled to establish fishery conservation
zones in the waters of the high seas above her continental shelf and to
exclusive jurisdiction and control therein. Indeed, it was not until 1969
and by a quite separate law that Iceland proclaimed her sovereign rights
in respect of the natural resources of the continental shelf itself (United
Nations Legislative Series, ST/LEG/SER.B/15, p. 364). Again, President
Truman’s fishery Proclamation, unlike Iceland’s Law of 1948, was not
related to the continental shelf and made explicit provision for the par-
ticipation of other States in the conservation measures.

6. Moreover, the Exposé des Motifs accompanying the Law of 1948
made it plain that, although expressed as essentially a conservation
measure, the Law was intended to be an enabling Act authorizing the
Fisheries Ministry to extend [celand’s fisheries jurisdiction over areas of
the continental shelf as and when the Ministry judged it appropriate
(United Nations Legislative Series, ST/LEG/SER.B/6, pp. 514-515). In
the following year, on 3 October 1949, the Government of Iceland gave
notice of her denunciation of the Anglo-Danish Convention of 1901, with
the result that the Convention, in accordance with its terms, ceased to
be in force two years later, i.e., on 3 October 1951. During that interval,
in the course of the Anglo-Norwegian Fisheries case, the United Kingdom
had recognized Norway’s historic claim to a 4-mile territorial sea and the
Court itself had endorsed the validity of the system of straight baselines
applied by Norway along the bays and islets off the Norwegian coast
(C.J. Reports 1951, pp. 126 and 132-139). Aware, no doubt, of these

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developments, Iceland early in 1952 informed the United Kingdom of her
intention to issue new fishery regulations in pursuance of the, Law of
1948; and on 19 March of that year promulgated regulations which
provided for a fishery zone extending four miles to seaward of straight
baselines drawn along the outermost points of the coasts, islands and
rocks and across the openings of bays, and prohibited all foreign fishing
activities within that zone.

7. Iceland’s 1952 Fisheries Regulations encountered protests from the
United Kingdom with respect to the 4-mile claim and certain of the
straight baselines, the compatibility of which with the principles laid
down in the Anglo-Norwegian Fisheries case it called into question. The
fishing industry in the United Kingdom also reacted against the new
Regulations by trying to prevent Icelandic vessels from landing their
catches in the United Kingdom. After various abortive attempts to solve
the dispute, a modus vivendi was reached in 1956, under the auspices of
the Organization for European Economic Co-operation. Under it there
was to be no further extension of Iceland’s fishery limits pending the
General Assembly’s discussion of the International Law Commission’s
report on the law of the sea, a discussion which resulted in the convening
at Geneva in 1958 of the first United Nations Conference on the Law of
the Sea.

8. The Conference, although it succeeded in adopting four major
Conventions on the Law of the Sea, failed to reach agreement either on
the limit of the territorial sea or on the extent of a State’s exclusive
fishery rights. On these questions it had to content itself with recom-
mending the convening of a second Law of the Sea Conference specifi-
cally for the purpose of trying to settle them. Even so, the Geneva Con-
ference of 1958 was not without its implications with regard to Iceland’s
fishery limits. Thus, by Articles | and 2 of the High Seas Convention, the
Conference agreed that the high seas comprise ‘‘all parts of the sea that
are not included in the territorial sea or in the internal waters of a State”,
and that the freedom of the high seas comprises “inter alia, both for
coastal and non-coastal States ... Freedom of fishing’. By Articles 1
and 2 of the Continental Shelf Convention it further agreed that the
rights attaching to a coastal State in virtue of its adjacent continental
shelf relate solely to the natural resources of the sea-bed and subsoil,
including only such living resources as belong to sedentary species; and
that these rights of the coastal State ‘‘do not affect the legal status of the
superjacent waters as high seas”. Clearly, Iceland’s claim in her Law of
1948 to be entitled to establish her fishery jurisdiction over the waters of
all her continental shelf did not find any justification in these provisions
of the High Seas and Continental Shelf Conventions adopted by the
1958 Geneva Conference.

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9. Similarly, the Convention on Fishing and Conservation of the
Living Resources of the High Seas took a different approach to the con-
servation of fishery resources outside the territorial sea from that of the
Law of 1948. Reflecting the approach of President Truman’s fishery
Proclamation rather than of the Icelandic Law, the Geneva Conference
recognized that ‘‘a coastal State has a special interest in the maintenance
of the productivity of the living resources in any area of the high seas
adjacent to its territorial sea”, but did not allow any exclusive rights of
jurisdiction to coastal States outside their territorial sea. Instead, it
placed a general obligation on non-coastal States to enter into negotia-
tions with the coastal State, at the latter’s request, ‘with a view to pres-
cribing by agreement the measures necessary for the conservation of the
living resources of the high seas in that area” (emphasis added). True, if
such negotiations were requested by a coastal State and had not led to
an agreement within six months, the Convention empowered the coastal
State to adopt unilateral measures of conservation; but it did so only
under strictly circumscribed conditions and pending the settlement of any
disagreement as to their validity by a special commission. Thus, in this
Convention the 1958 Conference left fishery conservation in waters out-
side the territorial sea essentially a matter to be agreed between the coastal
State and any other States concerned and, in the event of disagreement,
to be decided by an independent commission. In consequence, Iceland’s
Law of 1948 could equally not find its justification in the Convention on
Fishing and Conservation of the Living Resources of the High Seas.

10. In the Territorial Sea and Contiguous Zone Convention, the 1958
Conference settled the rules governing the baselines for delimiting the
territorial sea, and incorporated in them, subject to minor variations, the
straight baseline system sanctioned by the Court in the Anglo-Norwegian
Fisheries case. It also recognized that a coastal State has full sovereignty
and so, by implication, exclusive fishery rights within its territorial sea.
But it failed to reach agreement on the extent of the territorial sea, though
in prescribing that the contiguous zone may not extend beyond 12 miles
from the baseline, it implied that a fortiori the territorial sea may not
extend beyond that limit. It follows that this Convention, like the others
adopted at the 1958 Conference, did not provide Iceland with a legal
basis for the continental shelf fisheries claim enunciated in her Law of
1948.

11. Two other developments at the 1958 Conference require to be
noticed, since they contributed to shaping the course of the present
dispute. The first is the emergence at the Conference of the concept of the
preferential position of a coastal State whose people are specially de-
pendent upon coastal fisheries. As paragraph 56 of the Judgment recalls,

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although an Icelandic proposal embodying this concept failed to obtain
the necessary majority, the Conference adopted a resolution concerning
“the situation of countries or territories whose people are overwhel-
mingly dependent on coastal fisheries for their livelihood or economic
development”. This resolution, entitled “Special Situations relating to
Coastal Fisheries”, recognized that “‘such situations call for exceptional
measures befitting particular needs”, and made the recommendations
which are set out in that paragraph of the Judgment. In such “special
situations” the resolution in effect advocated that, if catch-limitation
becomes necessary for the purpose of conservation, non-coastal States
should collaborate with the coastal State to establish agreed conservation
measures which recognize such preferential requirements of the latter as
result from its dependence on the fishery in question. Thus, even in the
case of a State specially dependent on coastal fisheries, like Iceland, the
resolution did not envisage the unilateral assumption of exclusive rights
by the coastal State. On the other hand, it clearly did envisage that they
should have a certain preference in the exploitation of the fisheries in
adjacent areas of the high seas.

12. The other development of the 1958 Conference requiring to be
noticed is the ventilation first by Canada, and then by the United States,
of the concept of a contiguous zone of exclusive fisheries as a possible
means of compromising the differences between those who advocated a
3-mile territorial sea and those who considered that a coastal State should
be at liberty to choose any breadth for the territorial sea up to 12 miles.
At this Conference the version of the compromise to attract most support
was that of the United States which provided for a 6-mile territorial sea
and a further 6-mile contiguous zone of exclusive fisheries, subject to the
proviso that States, the nationals of which had fished in the fishery zone
regularly for the past five years should have the right to continue to do so.
But the United States’ proposal did not obtain the necessary two-thirds
majority in the voting and, as already indicated, no agreement was reached
at the Conference on the questions of the breadth of the territorial sea or
of the extent of a State’s exclusive fishery rights.

13. Soon after the conclusion of the Conference, as the Judgment
relates, Iceland announced her intention to reserve exclusively for Ice-
landic fishermen the right of fishing within 12 miles from her baselines and
further to expand her exclusive fishing zone by modifying those base-
lines; and to this intention she gave effect by the issue on 30 June 1958 of
new “Regulations concerning the Fisheries Limits off Iceland”. Article 1
of these Regulations proclaimed a 12-mile fishery limit around Iceland
drawn from new baselines and Article 2 prohibited all fishing activities
by foreign vessels within the new fishery limit. The Regulations, as they
expressly stated, were issued under the power conferred on the Ministry
of Fisheries by the Althing in the Law of 1948 “‘Concerning the Scientific

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Conservation of the Continental Shelf Fisheries”. Their immediate in-
spiration, however, seems to have been the trend at the 1958 Conference
towards allowing a 12-mile contiguous zone of exclusive fisheries as a
compromise to resolve the differences regarding the breadth of the terri-
torial sea.

14. The validity of the new Regulations was immediately challenged
by the United Kingdom and various attempts were made to settle the
resulting dispute by negotiation which, however, failed to produce any
solution before the second United Nations Conference on the Law of the
Sea began in March 1960. During the course of these negotiations, on
5 May 1959, the Althing passed a resolution which requires mention as
it later became an element in the 1961 Exchange of Notes. This resolu-
tion, inter alia, stated:

be

. the Althing declares that it considers that Iceland has an
indisputable right to fishery limits of 12 miles; that recognition should
be obtained of its rights to the entire continental shelf area in confor-
mity with the policy adopted by the Law of 1948, concerning the
scientific conservation of the continental shelf fisheries, and that
fishery limits of less than 12 miles from baselines around the country
are out of the question’’. (Emphasis added.)

The Althing thus made it clear that the 1958 Regulations asserting a
claim to a 12-mile fishery limit in no way implied any modification by
Iceland of her objective of extending her exclusive fishery zone over “the
entire continental shelf area”.

15. The period between the 1958 and 1960 Conferences also saw the
conclusion of a fishery conservation convention by 14 States interested
in the fisheries of the North-East Atlantic. This was the North-East
Atlantic Fisheries Convention of 24 January 1959, which embraced the
Icelandic area and to which Iceland and the United Kingdom are par-
ties !. The Convention set up for the North-East Atlantic Area a régime
for the conservation and exploitation of fisheries, operated by a Fishery
Commission and by Regional Committees and similar to the régime
created a decade earlier for the North-West Atlantic by the North-West
Atlantic Fishery Convention of 8 February 1949. The 1959 Convention is
expressed to apply to all the waters situated within the North-East
Atlantic area, but under Article 2 nothing in the Convention is to be
“deemed to affect the rights, claims or views of any contracting State in
regard to the extent of jurisdiction over fisheries”.

1 As also is the Federal Republic of Germany, Applicant in the other Fisheries Juris-
diction case now before the Court.

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16. The Second Conference on the Law of the Sea, held in Geneva in
March and April 1960, failed to reach agreement on what had become the
twin questions of the breadth of the territorial sea and the extent of
exclusive fisheries. At the Conference, attention again centred on the
possibility of solving these questions on the basis of a 6-mile territorial
sea plus a further 6-mile contiguous zone of exclusive fisheries subject to
a short phase-out period for States having existing fisheries within the
6-mile contiguous fishery zone. Moreover, it was a joint United States-
Canadian proposal in that form, providing for a 10-year phase-out
period and also for preferential fishing rights for a coastal State in a
situation of special dependence on adjacent fisheries, which was the text
that paragraph 52 of the Judgment refers to as having failed of adoption
by only one vote.

* *

17. Meanwhile, the dispute between the United Kingdom and Iceland
concerning both the 12-mile limit and the new baselines promulgated in
the 1958 Regulations still subsisted; and they undertook a series of
negotiations from 1 October 1960 until the end of that year with a view
to its settlement. These negotiations, as was only to be expected, were
conducted by the Parties in the context not only of the previous history
of the dispute but of the comprehensive review of the law of the sea which
had just taken place at the first and second Geneva Conferences on the
Law of the Sea.

18. Thus, at the opening meeting on | October 1960 the Icelandic
delegate recalled the views expressed by Iceland at those Conferences.
He stressed that Iceland is in a unique position in that her people are
dependent entirely upon the coastal fisheries; that it was essential for her
to safeguard her coastal fisheries; that she did not consider conservation
measures alone to be sufficient and that it was therefore her policy to
secure exclusive jurisdiction ‘‘in accordance with international law”. He
also referred to the fact that a 6 + 6 solution, with an adjustment period
of 10 years, had nearly been reached at the second Conference. He further
said that two proposals tabled by the Icelandic delegation had received
considerable support: namely, that countries in special situations should
receive preferential treatment even beyond [2 miles; and that a tran-
sitional period should not apply to special situation countries.

19. The United Kingdom, in its opening statement, also recalled the
compromise proposal of the United States and Canada for a 12-mile

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fishery limit, subject to a 10-year transitional period for States having
existing fisheries between the 6 and 12-mile limits. It observed that a
bilateral agreement had just been concluded between the United Kingdom
and Norway based upon that compromise proposal and subject to a 10-
year transitional period for United Kingdom fishing vessels. At the same
time, the United Kingdom reaffirmed its recognition of Iceland’s special
situation as a country whose economy depends mainly upon its fisheries
and conceded that the United States-Canada formula would, for this
reason, need to be modified to take account of that factor. That modi-
fication, it suggested, should be the reduction of the transitional period of
United Kingdom fishing from ten to five years.

20. The negotiations continued with proposals and counter-proposals
from each side. The Icelandic delegates insistently pressed for the re-
servation to Icelandic fishermen of certain areas even outside the 12-mile
limit as being essential, in their view, to solve the problem of densely
fished areas. The United Kingdom delegation no less insistently contested
that view and objected that in the light of the scientific evidence con-
cerning the fisheries, the reservation of areas outside the 12-mile limit
could not be justified on grounds of conservation; while offering to
examine together with the Icelandic delegation any proposals for con-
servation measures in particular areas or for policing regulations to
avoid difficulties in any areas of more dense fishing, they declined to
accede to Iceland’s demand for reserved areas outside the 12-mile limit.

21. The compromise by which the dispute was ultimately settled in the
1961 Exchange of Notes is set out in paragraph 26 of the Judgment. In
substance, the Parties agreed to settle the dispute on the basis of: a 12-
mile fishery zone around Iceland; baselines as promulgated in the 1958
Regulations subject to four modifications; a 3-year transitional period
for United Kingdom fishing between the 6-mile and 12-mile limits;
exclusion of United Kingdom fishing vessels from seven specified areas
between the 6-mile and 12-mile limits; a clause providing for the con-
tingency of any further initiative taken by Iceland to extend her fishery
jurisdiction in implementation of the Althing Resolution of 5 May 1959.
Thus, while accepting the reduction of the transitional period still further
from five to three years as well as restrictions within the transitional zone
even during that period, the United Kingdom did not accept any Ice-
landic rights of jurisdiction outside the 12-mile limit. On the contrary it
made its whole acceptance of the package settlement conditional upon
Iceland’s acceptance of a provision regulating the position between the
Parties in the event of any future initiative taken by Iceland under the
Althing Resolution of 5 May 1959 to extend her jurisdiction. It further
emphasized that its acceptance of the settlement was ‘in view of the

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exceptional dependence of the Icelandic nation upon coastal fisheries for
their livelihood and economic development”.

22. Thus, whatever differences there may have been in the views of the
two countries regarding the applicable rule of general international law,
Iceland and the United Kingdom agreed in 1961 that the 12-mile limit,
which was the only fishery limit that had come near to general acceptance
at the 1960 Conference, should thereafter constitute the limit of Iceland’s
fishery jurisdiction as between themselves. They further agreed that this
12-mile limit should remain in force between them unless and until an
extension of Iceland’s fishery jurisdiction should become opposable to the
United Kingdom in accordance with the final clause in the Exchange of
Notes which provided:

“The Icelandic Government will continue to work for the im-
plementation of the Althing Resolution of 5 May 1959 regarding the
extension of fisheries jurisdiction around Iceland, but shall give to the
United Kingdom Government six months’ notice of such extension
and, in case of a dispute in relation to such extension, the matter
shall, at the request of either party, be referred to the International
Court of Justice.”

This clause, as the Court stressed in its Judgment on the jurisdiction of
the Court (1.C.J. Reports 1973, p. 3), is not a mere compromissory clause
ancillary to the main provisions of the agreement. It was a basic con-
dition of the settlement by which Iceland obtained the United Kingdom’s
recognition of Iceland’s 12-mile limit, her enlarged baselines, the brief
three-year transitional period and the exclusion of United Kingdom ves-
sels from seven areas even during the transitional period.

23. In that Judgment the Court traced the origins of the compromis-
sory clause in the negotiations leading up to the conclusion of the 1961
Exchange of Notes (para. 18):

“The records of these negotiations which were drawn up by and
have been brought to the Court’s attention by the Appplicant, as well
as certain documents exchanged between the two Governments,
show that, as early as 5 October 1960, it had become apparent that
the United Kingdom would accept in principle Iceland’s right to
exclusive fisheries jurisdiction within the 12-mile limit following
the end of a transitional period. However, the Government of the
United Kingdom sought an assurance that there would be no further
extensions of Icelandic fisheries jurisdiction excluding British vessels,
in implementation of the Althing resolution, except in conformity
with international law. In the course of the discussions concerning
this point both parties accepted the notion that disputes arising from
such further extensions should be submitted to third-party decision.”
(Emphasis added.)

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Having then traced the history of the drafting of the clause, the Court
concluded (paras. 21-23):

“The history of the negotiations not only shows the intentions of
the parties but also explains the significance of the six months’
notice required to be given by the Government of Iceland to the
United Kingdom Government, for on 2 December 1960 the United
Kingdom representatives stated that the assurance they were seeking
should provide, inter alia, that, ‘pending the Court’s decision, any
measure taken to give effect to such a rule will not apply to British
vessels’. The Foreign Minister of Iceland is recorded as having replied
on the same date that the most difficult feature of the problem of the
assurance was how to deal with the point that ‘if there was a dispute,
no measure to apply an extension on fishery limits would be taken
pending reference to the International Court’.

The idea of a six months’ notice to be given by Iceland was first
discussed on 3 December 1960 and was embodied in the formula
advanced by the Icelandic delegation on that same date, which is
transcribed in paragraph 19 above. This requirement of notice was
agreed to by the parties. It may be assumed that they considered that
such a period would allow sufficient time to settle the question
through negotiations or, if no settlement were reached, to submit the
whole issue to the Court, including, in accordance with the statutory
powers possessed by the Court, the applicability of the measures of
exclusion to British vessels pendente lite . . .

This history reinforces the view that the Court has jurisdiction in
this case, and adds emphasis to the point that the real intention of the
parties was to give the United Kingdom Government an effective
assurance which constituted a sine qua non and not merely a severable
condition of the whole agreement: namely, the right to challenge
before the Court the validity of any further extension of Icelandic
fisheries jurisdiction in the waters above its continental shelf beyond
the 12-mile limit.” (Emphasis added.)

This view of the compromissory clause, which I share, is amply justified
by the context of the clause in the settlement embodied in the 1961
Exchange of Notes and by the record of the negotiations.

24. It follows, in my opinion, that under the very terms of the 1961
Exchange of Notes a subsequent extension by Iceland of her fishery
jurisdiction beyond the [2-mile limit agreed to in that treaty is not oppo-
sable to the United Kingdom if that extension does not comply with the
conditions laid down in the compromissory clause.

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25. The principal facts relating to Iceland’s subsequent extension of
her fishery jurisdiction to 50 miles are summarized in paragraphs 27-34
of the Judgment. When Iceland made a public announcement of her
intention to extend her fishery limit to 50 miles from her baselines, she at
the same time announced that she considered the 1961 Exchange of
Notes as ‘“‘terminated”. On the United Kingdom’s objecting that it
considered Iceland’s intended extension of her fishery limit to have no
basis in international law and reminding her of the compromissory
clause in the 1961 Exchange of Notes, Iceland repeated her claim that the
compromissory clause was no longer in force. Similarly, when in an aide-
mémoire of 24 February 1972 Iceland gave to the United Kingdom for-
mal notice of her intention to proceed to the extension of her fishery
limit not later than | September of that year, she reasserted her thesis that
the provisions of the Exchange of Notes were “‘no longer applicable” and
“consequently terminated”. Again, when on 14 April 1972 the United
Kingdom filed an Application bringing the present case before the Court,
Iceland informed the Court, ina letter of 29 May 1972, that the Agreement
of 11 March 1961 was not of a permanent nature, that its object and
purpose had been fully achieved, and that it was no longer applicable
and had terminated; that there was on 14 April 1972 no basis under the
Statute for the Court to exercise jurisdiction; and that she was not willing
to confer jurisdiction on the Court and would not appoint an agent.
Furthermore, although the Court had not yet pronounced on its juris-
diction, Iceland proceeded, on 14 July 1972, to issue new Regulations
extending her fishery limit to 50 miles as from 1 September of that year.

26. When the issue of the new Regulations led the United Kingdom
to file a request for the indication of interim measures of protection,
Iceland in a telegram to the Court of 29 July 1972 reiterated her view
that there was no basis for the exercise of the Court’s jurisdiction in the
case, asserted that there was consequently no basis either for the request
for an indication of interim measures and took no part in the proceedings.
On 17 August 1972 the Court made its Order for interim measures in
which, inter alia, it indicated that, pending its final decision in the pro-
ceedings, [celand should refrain from taking any measures to enforce the
Regulations of 14 July 1972 against vessels registered in the United
Kingdom and engaged in fishing activities in the waters around Iceland
outside the 12-mile fishery zone. Notwithstanding this Order of the
Court, however, Iceland proceeded to enforce her new Regulations
against United Kingdom vessels as soon as they came into effect onl
September 1972. In a Note of 28 August 1972 to the United Kingdom,
Iceland explained that she did not consider the Order to be binding upon
her “since the Court has no jurisdiction in the matter”.

27. So long as Iceland’s claim, that the 1961 Exchange of Notes was
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no longer applicable between her and the United Kingdom, remained
undecided, the question whether the enforcement of her new Regulations
against the United Kingdom violated that agreement could perhaps be
considered as being in doubt. In its Judgment of 2 February 1973,
however, the Court rejected seriatim all Iceland’s objections to the appli-
cation of the 1961 Exchange of Notes to the present dispute and upheld its
jurisdiction to pronounce upon the merits. That Judgment, as Iceland
could not fail to be aware, was binding upon her under Article 36, para-
graph 6, of the Statute of the Court and res judicata for the purposes of
the present case. Yet, even after the handing down of that Judgment,
Iceland persisted in her efforts to enforce the new 50-mile limit against
United Kingdom vessels and, as is evidenced by her telegram to the
Court of 14 January 1974, in denying the Court’s competence to adju-
dicate upon the dispute. Whatever may have been the considerations that
led Iceland to repudiate her obligations under the compromissory clause
of the 1961 Exchange of Notes, the clear implication of the Court’s
Judgment of 2 February 1973 is that she lacked any legal justification for
thus attempting to revoke the assurance which she had given to the United
Kingdom in that Agreement.

28. The comprehensive character of Iceland’s repudiation of the assur-
ance which she had given in the 196! Exchange of Notes needs little
emphasis in the light of the facts recited above. By denying the Court's
competence to decide the dispute in relation to the extension of her
fishery jurisdiction, by denying the Court’s power to indicate interim
measures and by disregarding the Court’s Order indicating that she
should refrain from taking measures to enforce the extension against
United Kingdom vessels pendente lite, Iceland in effect tore up the
assurance which she had given in 1961 and sought unilaterally to impose
the new extension upon the United Kingdom. It follows that Iceland’s
extension of her fishery jurisdiction promulgated in 1972 does not comply
with the conditions laid down in the compromissory clause of the 1961
Exchange of Notes. It further follows, in my opinion, that the extension
is not opposable to the United Kingdom in the present proceedings.

29. It is true that the object of the compromissory clause was to enable
either Party, and more especially the United Kingdom, to have the
question of the validity of any further extension of Iceland’s fishery
Jurisdiction determined by the Court; and that, as the records of the
negotiations show, the clause was directed to the possibility of some
future development in maritime international law. It is also true that the
United Kingdom has invoked the clause and asked for a determination
of the invalidity of the new extension under maritime international law;

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and that the Court has upheld its jurisdiction to pronounce upon the
merits. In my opinion, however, Iceland’s repudiation of the compro-
missory clause, and of the assurance which she thereby gave in the 1961
Exchange of Notes, constitutes an initial and conclusive ground of the
invalidity of the extension as against the United Kingdom. To decide
otherwise would be to give Iceland the benefit of her own wrong by
leaving the question of invalidity open before the Court. At the same
time, by giving effect to this initial ground of invalidity, which derives
from general principles of international law, the Court would be ful-
filling the object of the compromissory clause, no less than by pronoun-
cing upon the validity of the extension under maritime international law.

30. Consequently, I do not think that it would be correct to regard
Iceland’s total refusal of the Court’s jurisdiction as having the effect only
of exposing her to a judgment in default of appearance under Article 53
of the Statute. To attribute to it so limited an effect would not, in my
view, be consistent with the object of the compromissory clause or
compatible with the Court’s finding that the assurance given to the United
Kingdom in the clause was intended to be not merely a “severable
condition”’ but a ‘‘sine qua non of the whole agreement”. The compromis-
sory clause, it follows from that finding, is an integral part of the law
applicable between Iceland and the United Kingdom with regard to an
extension of Iceland’s fishery jurisdiction, and, as such, is also part of the
law to be applied by the Court in deciding upon the validity of such an
extension.

31. Accordingly, in my opinion, Iceland’s total repudiation of the
assurance which she gave in the 1961 Exchange of Notes constitutes an
additional, and quite fundamental, ground for finding that Iceland’s
extension of the fishery jurisdiction in 1972 is not opposable to the United
Kingdom in the present proceedings. That in itself would, I think, suffice
to justify the Court in upholding the second and third submissions of the
United Kingdom. Unlike the first submission which asks the Court to
declare the extension to be without foundation in international law and
invalid erga omnes, these two submissions specifically challenge Iceland’s
right to assert an exclusive fisheries jurisdiction, as against the United,
Kingdom, beyond the limits agreed to in the Exchange of Notes of 1961. At
the public sitting of 29 March 1974, in reply to a question from a Member
of the Court, counsel for the United Kingdom explained that the first three
submissions of the United Kingdom are not so connected that the second
and third cannot stand without the first, and that it is therefore open to the
Court to adjudicate on the second and third without adjudicating upon
the first. Nor does counsel seem to have intended to modify that statement
when he added: “it being, of course, understood and accepted that
submissions (6) and (c) are based on general international law and are,
of course, not confined merely to the effect of the Exchange of Notes”.
General international law, no doubt, forms an element in the second and
third submissions since it is the United Kingdom’s thesis that the 12-mile

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limit agreed to in 1961 is at the same time the generally accepted limit of
exclusive fishery jurisdiction. But what differentiates these submissions
from the first submission is the express reliance which they place on the
agreement between the Parties in the 1961 Exchange of Notes regarding
a 12-mile fishery limit around Iceland.

32. My view therefore is that, in addition to the reasons given in the
Judgment, Iceland’s repudiation of her obligations under the 1961
Exchange of Notes would in itself suffice to justify subparagraphs | and 2
of the operative part of the Judgment which in effect upheld the second
and third of the United Kingdom’s final submissions.

33. As to the first submission, it follows that I agree with the Court that
for the purposes of the present Judgment it is not, strictly speaking, neces-
sary to pronounce upon the question raised by that submission, namely,
whether the extension of Iceland’s fishery limit to 50 miles is without foun-
dation in international law and is invalid. Framed in that way, the sub-
mission appears to ask the Court to hold that the extension was ipso jure
illegal and therefore invalid erga omnes; and this view of the submission
is confirmed by the statement of counsel at the public sitting on 25 March
1974 when, inter alia, he said: “This answers the question whether an
extension of an exclusive fisheries zone beyond 12 miles would be illegal,
it would.” Although I consider that Iceland’s extension of her fishery
limit beyond the 12-mile limit agreed to in 1961 would not be opposable to
the United Kingdom under general international law as well as under the
Exchanges of Notes, [ should have more hesitation in upholding the
proposition advanced in the first submission. The reason is that it does
not seem to me to formulate the issue in the manner in which it presents
itself in modern maritime international law.

34. After the failure of The Hague Codification Conference of 1930 to
establish the 3-mile limit as a universal rule and obligatory limit for the
breadth of the territorial sea, the question arose as to what, if any, is the
rule of international law concerning the breadth of the territorial sea. The
prevailing opinion was that, after the failure of the Conference, the 3-mile
limit remained a limit which could be said to be generally accepted and,
therefore, ipso jure, valid and enforceable against any other State; but
that a claim in excess of that limit could no longer be said to be ipso jure
contrary to international law and invalid erga omnes; and that the validity
of such a claim as against another Siate would depend on whether it was
accepted or acquiesced in by that State (cf. G. Gidel, Droit international
public de la mer, 1934, Vol. 3, pp. 134-135).

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35. Since 1930 a considerable number of new claims to maritime juris-
diction have been advanced by coastal States, whether to a larger terri-
torial sea or to other forms of maritime jurisdiction. In the absence of
clearly established general rules, the legal issue has continued to present
itself in terms of the opposability of the claim to each other State rather
than of the absolute legality or illegality of the claim erga omnes; in other
words, in terms of the acceptance or acquiescence of other States. At the
two Geneva Conferences on the Law of the Sea of 1958 and 1960 the
12-mile limit figured prominently in the debates both with respect to the
breadth of the territorial sea and the extent of the exclusive fishery zone,
though adopted at those Conferences in regard to neither. In fisheries, as
paragraph 52 of the Judgment relates, the law evolved through State
practice and a coastal State’s right to an exclusive fishery zone up to 12
miles from its baselines appears to have become generally accepted.
Larger claims have certainly been advanced by individual States and the
third United Nations Law of the Sea Conference is already in session.
But these larger claims, while accepted by some States, are rejected by
others and beyond the 12-mile limit general acceptance does not exist,
nor, as paragraph 53 of the Judgment observes, can the Court anticipate
the law before the legislator has laid it down. Therefore, an extension of
fisheries jurisdiction beyond 12 miles is not, in my opinion, opposable to
another State unless shown to have been accepted or acquiesced in by
that State.

36. In the present instance, [celand’s unilateral extension of her ex-
clusive fishery limits from 12 to 50 miles as from 1 September 1972 was
at once objected to by the United Kingdom. Consequently, if it were
necessary to rest the Judgment on this point, [ would consider the Court
justified in holding that Iceland’s extension of her fishery jurisdiction
beyond the 12-mile limit agreed to in the 1961 Exchange of Notes is also
not opposable to the United Kingdom under general international law.

37. The Judgment, however, lays the emphasis on [celand’s obligation
to respect the United Kingdom’s existing fishing rights, the United
Kingdom’s obligation, in turn, to respect [celand’s preferential rights as a
coastal State specially dependent on the fisheries in adjacent waters, the
resulting obligation of both countries to undertake negotiations in good
faith for the equitable solution of their differences regarding their respec-
tive fishing rights and their duty to examine together such measures as
may be required for the conservation and development and equitable
exploitation of the fishery resources in the disputed waters. On this aspect

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of the case [ need only add a few observations regarding the competence
of the Court under the compromissory clause to adjudicate upon these
issues, a question which is examined in paragraphs 43-48 of the Judgment.
1 fully subscribe to the reasoning developed in those paragraphs which [
believe to be borne out by the records of both the negotiations leading to
the conclusion of the 1961 Exchange of Notes and of the dispute con-
cerning Iceland’s extension of her fishery jurisdiction to 50 miles.

38. Even the brief account of the 1960 negotiations given in paragraphs
18-22 of this opinion shows that preferential rights, conservation and the
traditional fishing rights of the United Kingdom were very much a sub-
ject of the differences between the Parties in those negotiations. The
Opening statements of either side on | October 1960 set the framework
for the negotiations, and it is clear that from the outset Iceland invoked
her exceptional dependence on her coastal fisheries, referring specifically
to her proposal at the 1960 Conference that countries in special situations
should receive preferential treatment even beyond 12 miles. The United
Kingdom, on the other hand, while acceding to Iceland’s claim to be a
“special situation” country, took a quite different view of the preferential
treatment to which Iceland was entitled in virtue of her special situation;
for it took the position that this might entitle Iceland merely to a reduc-
tion of the phase-out period for British vessels. In subsequent meetings
the Icelandic delegation fought hard for areas to be entirely reserved to
Icelandic fishermen outside the 12-mile limit; so much so that those areas
were referred to at the meeting of 5 October 1960 as a more or less contin-
uous belt of water around the Icelandic coast. Indeed, the Icelandic delega-
tion seems to have suggested that this might actually amount to a further
belt of 12 miles from which all United Kingdom fishing should be ex-
cluded. The response of the United Kingdom delegation was that this
could not conceivably be justified either on grounds of conservation or on
practical grounds of density of fishing.

39. In short, running through the negotiations were arguments con-
cerning preferential treatment, reserved areas outside the 12-mile limit,
conservation and dense fishing. Et was in this context and in face of the
constant pressure of the Icelandic delegation for reserved areas outside
the 12-mile limit, as well as in the context of Iceland’s declared policy of
seeking to extend her fishery jurisdiction over the whole continental shelf,
that the United Kingdom delegation raised the question of a guarantee
against a further extension of Iceland’s fishery jurisdiction except in
conformity with international law. Indeed, when the question of a gua-

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rantee was first raised at the meeting of 5 October 1960, it was in the con-
text of a discussion as to what would be the position after the transitional
period in regard to the reserved areas outside the 12-mile limit which had
been demanded by Iceland.

40. It is true that the guarantee soon assumed a broader aspect in the
discussions and was then expressed to provide an assurance against the
exclusion of United Kingdom vessels from any area outside the 12-mile
limit except in conformity with a generally accepted rule of international
law. In other formulations it was referred to as an assurance against any
extension of Iceland’s “fishery limits”, but in its final version it was ex-
pressed in the entirely general form “‘extension of fisheries jurisdiction
around Iceland” and linked to the Althing Resolution of 5 May 1959
concerning Iceland’s policy of seeking recognition of her “rights” to the
whole continental shelf. That Resolution was itself linked to Iceland’s
1948 “Law concerning the Scientific Conservation of the Continental
Shelf Fisheries” which, although expressed simply as a conservation
measure, was an ‘enabling’? Act authorizing the fisheries minister to ex-
tend Iceland’s fisheries jurisdiction over areas of the continental shelf as
and when he judged it appropriate (see paras. 5 and 6 of this opinion).

41. Although Iceland’s primary objective has, no doubt, been to
extend her exclusive fishery rights over more and more areas of the con-
tinental shelf, it does not seem to me justifiable to regard either the Law
of 1948 or the Althing Resolution of 1959 as relating only to extensions
of Iceland’s exclusive fishery limits as the means for expanding her claims
to the fishery resources of the continental shelf. Quite apart from the
express reference to “conservation” as the motif for the Law of 1948, it
is clear not only from the proceedings of the 1958 and 1960 Conferences
but also from the records of the 1960 negotiations that Iceland was ready
to make use of any concept, and especially those of “preferential rights”
and ‘‘conservation zones” as a means of furthering her fisheries objectives.
Consequently, in my opinion, it would be altogether too narrow an inter-
pretation of the compromissory clause to interpret the reference in it to
the Althing Resolution of 1959 as confining the Court’s competence to a
dispute in relation to an extension of Iceland’s exclusive fishery limits and
nothing else. The compromissory clause itself does not refer to an ex-
tension of fishery limits but to an extension of fishery jurisdiction, a term
apt to cover any form of an attempt by Iceland to extend her authority
over fisheries outside the 12-mile limit.

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42. In addition, as I have indicated, such a narrow interpretation does
not seem consistent with the travaux préparatoires of the compromissory
clause. Equally, it does not seem to me consistent with the Court’s
conclusion, in its Judgment of 2 February 1973, that:

“... the real intention of the parties was to give the United Kingdom
Government an effective assurance . . .: namely, the right to challenge
before the Court the validity of any further extension of Icelandic
fisheries jurisdiction in the waters above its continental shelf ...”
(C.J. Reports 1973, p. 13, para. 23; emphasis added).

If, instead of extending her exclusive fishery limit pure and simple, Ice-
land had introduced measures greatly to restrict, or render unprofitable,
foreign fishing but in the guise of a “‘preferential’’ or ‘‘conservation”
régime, it would make nonsense of the ‘effective assurance’’—the “sine
qua non of the whole agreement” in the Exchange of Notes—to interpret
it as not covering such measures. Nor should it be overlooked that the
“extension of fisheries jurisdiction” effected by Iceland’s 1972 Regulations
was in fact expressed in those Regulations to be an application of the
Law of 1948 concerning ‘Scientific Conservation of the Continental Shelf
Fisheries”. Consequently, it seems to me evident that the Court’s compe-
tence must be understood as covering questions of preferential rights and
conservation, and more especially when raised in direct connection with
a dispute in relation to an extension of Iceland’s zone of exclusive
fisheries.

43. There remains, however, the question whether the present “‘dis-
pute” does involve the questions of preferential rights and conservation. I
share the view of the Court that, although occasioned by Iceland’s uni-
lateral extension of her fishery jurisdiction, the present dispute at the
same time clearly includes differences regarding those matters. This seems
to me sufficiently established by the account of the dispute given in para-
graphs 17-29 of the United Kingdom’s Memorial on the merits which
show that the differences between the Parties were not limited to the
question of the validity of the extension of the exclusive fishery zone, as
such, but involved Iceland’s claims to exclusive fishery limits by reason of
her right to preferential treatment and her claims to be entitled to take
unilateral conservation measures.

44. Thus, in the very first explanation of the extension offered by the
Icelandic Government, in an aide-mémoire of 31 August 1971 (Annex
3 of the Memorial on the merits), it justified the measure by reference to

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its need to maintain the resources of the sea and to “‘measures of pro-
tection essential to safeguard the vital interests of the Icelandic people
in the seas surrounding its coasts”. Moreover it reiterated this justification
in an aide-mémoire of 24 February 1972, enclosing a Memorandum
entitled Fisheries Jurisdiction in Iceland and containing material designed
to support that justification. The United Kingdom objected that an
extension of the exclusive fishery limit was not a necessary means of
achieving conservation and offered to examine with Iceland agreed catch-
limitation schemes in areas outside the 12-mile zone. Iceland disputed the
efficacy of multilateral conservation measures, now arguing that the pro-
blem was not one of conservation but of division of stocks. The United
Kingdom objected that it had fishing rights in the waters around Iceland
which were firmly based on traditional use, specific agreement and cus-
tomary law. It repeated its catch-limitation proposal, referring in this
connection to the North-East Atlantic Fisheries Commission and re-
minding Iceland that under the Special Situations Resolution of 26 April
1958 any such catch-limitation arrangement would have to recognize any
preferential rights of the coastal State resulting from its dependence on the
fisheries concerned. As to the question of preferential rights, it is true
that Iceland showed some tendency to invoke a trend in favour of ac-
cording priority rights to coastal States in general and not merely in
special situations. But, that the dispute involved Iceland’s claim to pre-
ferential rights is further evidenced by her Note of 11 August 1972 to the
United Kingdom (Annex 10 of the Memorial on the merits); for the
Icelandic Government there recalled:

“In the discussions between representatives of the Icelandic and
British Governments in July 1972 on the question of fisheries limits
the Icelandic side made quite clear its willingness to continue the
discussions.

The Icelandic representatives laid main emphasis on receiving
from the British side positive replies to two fundamental points:

I. Recognition of preferential rights for Icelandic vessels as to
fishing outside the 12-mile limit.

2. That Icelandic authorities should have full rights and be in a
position to enforce the regulations established with regard to fishing
inside the 50-mile limit.”

In that Note, it is true, Iceland was thinking in terms only of an interim
agreement regarding United Kingdom fishing, but it shows that ‘‘pre-

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ferential rights” were very much part of Iceland’s armoury of legal
argument in the dispute.

45. A “dispute’’, as has frequently been said both by the Permanent
Court of International Justice and by this Court |, is: ‘‘a disagreement on
a point of law or fact, a conflict of legal views or of interests between two
persons.” In the present instance it seems to me clear that the “‘dis-
agreement on a point of law” and the “conflict of legal views or of in-
terests”, though occasioned by [celand’s extension of her fishery limit,
included disagreements and conflicts as to whether Iceland’s right to
preferential treatment entitled her to exclusive fishery rights, whether
exclusive rights may be claimed in the name of conservation, whether
conservation measures may be taken unilaterally and whether Iceland’s
claims should prevail over the United Kingdom’s traditional rights in the
waters in dispute. Accordingly, I think the Court fully justified in con-
cluding that these issues form an integral part of a dispute in relation to an
extension of fisheries jurisdiction around Iceland within the meaning of the
compromissory clause.

46. As to the question of the Court’s competence in the event of the
failure of the parties to resolve the dispute by negotiation or other means
of their own choice, I agree with the Court that this question is hypothet-
ical and does not call for its consideration in the present proceedings.
Under Article 60 of the Statute the Judgment is ‘‘final and without
appeal”. It thus constitutes a final disposal of the case brought before the
Court by the Application of 14 April 1972, subject only to the right
reserved to any party by that Article to request the Court to construe the
Judgment in the event of a dispute as to its meaning or scope. Conse-
quently, should some other dispute between the parties as to their
respective fishery rights in the waters around Iceland be brought before
the Court unilaterally by either of them it would be for the Court, in the
light of the particular circumstances of that dispute, then to determine its
jurisdiction to entertain the case and the validity of any objections that
might then be raised to the exercise of its jurisdiction.

(Signed) H. WALDOCK.

1 E.g., Mavrommatis Palestine Concessions case, P.C.I.J., Series A, No. 2, at p. 1h;
Right of Passage over Indian Territory case, 1.C.J. Reports 1960 at p. 34.

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