126

DISSENTING OPINION OF JUDGE GROS
[Translation |

I consider that Iceland’s claim to establish an exclusive fishing zone
over the superjacent waters of the continental shelf is contrary to the
rules of international law, but the reasoning which leads me to that
opinion, and my analysis of the dispute itself, are different from what is
contained in the Judgment, from both the reasoning and the decision of
the Court; a judgment of the Court comprises the reasoning part and the
operative clause, and to understand the scope of the judgment it is not
possible to separate either of these elements from the other, and an
elliptical operative clause only reveals its meaning when read with the
reasoning leading up to it. Adapting myself to the method adopted by
the Court, I have cast a negative vote on the questions which it has
selected; [ must explain how L understood the Court’s mission in the
present case, the meaning of the question put to it, the answer to be given
thereto, and thus the reasons supporting my dissenting opinion.

1. The first question which was raised for the Court in this merits-
phase of the case was to determine what its task was. The Court has
recognized in its Judgment of 2 February 1973 on jurisdiction that the
Exchange of Notes of 11 March 1961 contained in its penultimate para-
graph, a ‘‘compromissory clause” which conferred jurisdiction on the
Court to give judgment in any dispute which might arise concerning the
extension of fisheries jurisdiction around Iceland. Examination of that
agreement and of the negotiations which led up to its being concluded
leads me to an interpretation different from that in the Judgment as to
the definition of the disputes which could be brought before the Court.

2. The basic principle of the Court’s jurisdiction is the acceptance of
that jurisdiction by the Parties; whether what is in question is a compro-
missory clause providing for the jurisdiction, or a special agreement, the
rule is that interpretation cannot extend the jurisdiction which has been
recognized. It should be added in the present case that, Iceland having
failed to appear, and Article 53 of the Statute being applied by the Court,
it is particularly necessary to satisfy oneself that the Court is passing
upon a dispute which has been defined as justiciable by Iceland and the
United Kingdom, and not some other dispute constructed during con-
sideration of the case by the Court. An obligation to bring a dispute
before a court is always reciprocal and of equal extent for each State
which has accepted it; hence the need to proceed to a special verification
in this case, since Iceland has not co-operated in the precise definition
of the dispute. I have stated on another occasion that [ disagreed with
the penalizing approach of the Court with regard to a State which fails to
appear, in its interpretation of Article 53 (Fisheries Jurisdiction, [.C.J.

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FISHERIES JURISDICTION (DISS. OP. GROS) 127

Reports 1973, p. 307); the present phase has strengthened my conviction
on this point.

3. The Exchange of Notes of 1961 would not appear to leave room for
any doubt, and I will quote the English text which is the authoritative
text:

“The Icelandic Government will continue to work for the im-
plementation of the Althing Resolution of May 5, 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 Inter-
national Court of Justice.”

Thus the reference is to a possible dispute in relation to the extension by
the Government of Iceland of its fisheries jurisdiction around Iceland in
relation to the limits recognized in the 1961 agreement. The Court, in its
Judgment of 2 February 1973, stated in the last explanatory paragraph
on this point:

“The compromissory clause enabled either of the parties to submit
to the Court any dispute between them relating to an extension of
Icelandic fisheries jurisdiction in the waters above its continental shelf
beyond the 12-mile limit. The present dispute is exactly of the char-
acter anticipated in the compromissory clavse of the Exchange of
Notes.” (.C./. Reports 1973, p. 21, para. 43; emphasis added.)

It is important to note that the formula underlined may be found in
paragraphs 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 27, 28, 40 and 41 of the
Judgment. To rely on the form of words used in the operative clause of
the 1973 Judgment in order to assert that the Court found that it had
jurisdiction to entertain the Application, with the implication that the
content of that Application binds the Court, is to disregard, first the
inherent connection between the reasoning of the 1973 Judgment, which
is based solely on the concept of extension of fisheries jurisdiction, and
the form of the operative clause; and secondly the rule that it is the 1961
treaty which determines what the subject-matter of the justiciable dispute
is, and not the Application or the submissions of one of the Parties. The
Court should decide what the extent of its jurisdiction is, without being
bound by the argument addressed to it on the point.

I have quoted the original-language text of the Judgment to avoid any
ambiguity resulting from translation, and to show that I cannot accept
the argument that a form of words as precise as “dispute in relation to
the extension of fisheries jurisdiction” can be interpreted as impliedly
including any connected question which one of the Parties may have had
occasion to refer to in the course of the negotiations preceding the 1961
agreement, if the other Party refused to make that question the subject
of the agreement itself. That an idea or even a proposal may have been

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FISHERIES JURISDICTION (DISS. OP. GROS) 128

put forward in the course of negotiations is not sufficient for them to
survive rejection, and acceptance of that rejection by the author of such
proposals; any other view of the matter would enable multiple disputes
to be artificially created, simply by the introduction into a negotiation,
as a matter of principle, of various problems. No negotiations could be
usefully carried on if courts had such freedom to extend their resuits. It
would become necessary to draw up minutes of agreement as to the
meaning of the most important articles of a treaty, and then, as suspicion
increased, of all its articles.

In the present case, it is clear that the 1961 agreement only contemplated
one sort of dispute as justiciable, namely the extension of Iceland’s
fisheries jurisdiction.

4. If any confirmation from a textual source were necessary on this
point, it should be recalled that the only passage where any more general
consideration is mentioned is in the United Kingdom reply to the Ice-
landic Note of 11 March 1961, in the last paragraph and in the following
form:

“T have the honour to confirm that in view of the exceptional
dependence of the Icelandic nation upon coasta! fisheries for their
livelihood and economic development, and without prejudice to
the rights of the United Kingdom under international law towards a
third party, the contents of Your Excellency’s Note are acceptable to
the United Kingdom and the settlement of the dispute has been
accomplished on the terms stated therein.”’ (Application, p. 25.)

Nothing further need be said; this is an opinion held by the Government
of the United Kingdom, and not a term of the agreement.

5. The kind of dispute which the parties to the 1961 agreement had in
contemplation, and which they agreed to bring before the Court, was
pegged to a legal point which was specially defined, in a limited way, and
because assurances, which were also special and precise, had been sought
and obtained on this one point. If, as I hold, this definition of the justi-
ciable dispute has not been applied in the present Judgment, the Court
has gone beyond the bounds of its jurisdiction.

Iceland, which is absent from the proceedings, has from the outset
disputed that the Court has any jurisdiction, and this claim was rejected
in the Judgment of 2 February 1973 by an almost unanimous Court,
which observed that the dispute was exactly of the character anticipated
in the 1961 agreement (cf. para. 3 above) and that that agreement was
still in force and applicable. The Judgment on the merits, on the other
hand, departs from the definition of the dispute on which judgment is to
be given on two points:

(a) in that it does not decide the precise question of law contemplated
in the compromissory clause of 1961, i.e., the conformity with inter-

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FISHERIES JURISDICTION (DISS. OP. GROS) 129

national law of the extension to 50 miles of Iceland’s fisheries
jurisdiction;

(b) in that it adopts an extensive interpretation, in relation to the text,
of the’1961 agreement on the scope of the Court’s jurisdiction, as if
it had read: any dispute on any question whatever connected with a
modification of the fisheries régime fixed by the present agreement.

With some internal contradiction, the Judgment simultaneously
declines to exercise the jurisdiction conferred upon the Court by the 1961
agreement and exercises jurisdiction which was not created by that
agreement. Study of the records of the negotiations which led to the 1961
agreement will show that this is so.

6. A first series of meetings took place between 1 October and 4
December 1960, and a second series between 17 and 20 December 1960
(documents deposited in the Registry of the Court by the United King-
dom on 13 October 1972 !).

At the first meeting the views of the Icelandic Government were ex-
plained extremely clearly as being a claim to exclusive fisheries juris-
diction, but ‘tin accordance with international law”, and for the time
being it was a matter of obtaining the United Kingdom’s recognition of
the 12-mile limit. These talks also show that the Icelandic Government
was already talking of establishing a more or less continuous belt of
reserved waters around Iceland, possibly extending for 12 miles, from
which British ships would be barred from navigation as well as fishing,
and it is at this point that the British idea appears of the necessary
guarantee against any fresh extension of the fishing zone, if the 12-mile
limit were recognized in the current negotiations.

United Kingdom delegation:

“‘Moreover, we should need to have some guarantee in any
agreement that after the transitional period the Icelandic Govern-
ment would not seek to exclude our vessels from any of the waters
outside 12 miles, unless of course there were to be some change in
the general rule of international law agreed under United Nations
auspices. Would your Government be prepared to give us such a
guarantee in any agreement?” (Records, p. 14.)

This request for a guarantee is repeated incessantly (cf. para. 8 on p. 17,
and para. 14: ‘*. .. an assurance that there would be no further extensions
towards the Continental Shelf”}, and the first formulation of a guarantee
was provided by the Government of Iceland in these terms:

these records and of the possibility of consulting them in the Registry of the Court,
did not take advantage of this possibility. The records prepared by the United Kingdom
delegation to these negotiations have been widely used by the United Kingdom in its
pleadings and by the Court in its Judgment of 2 February 1973. The Court has not been
able to take cognizance of any similar record on the Icelandic side.

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FISHERIES JURISDICTION (DISS. OP. GROS) 130

“The Icelandic Government reserves its right to extend fisheries
jurisdiction in Icelandic waters in conformity with international law.
Such extension would, however, be based either on an agreement
(bilateral or multilateral) or decisions of the Icelandic Government
which would be subject to arbitration at the request of appropriate
parties.” (Records, p. 20.)

(See also page 27 where the link between what was to be included in the
proposed agreement and the “‘guarantee”’ is openly recognized, and what
was included in the agreement was no more than the adjustment of the
jurisdiction of Iceland in a 12-mile fishing zone; further, the Icelandic
delegate only refers to an ‘‘assurance” in respect of a possible extension of
jurisdiction after the agreement, never in respect of anything else, cf.
page 31.)

7. The basic element to which the guarantee which was contemplated
related was thus clearly the extension of fishing rights claimed by Iceland
over waters beyond the 12-mile limit, in accordance with whatever the
current state of international law might be at the chosen moment; the
means contemplated by Iceland were negotiation, bilateral or multilat-
eral, or a unilateral decision of the Icelandic Government which would
be subject to arbitration. At no time during the further talks on this
question of the guarantee does it appear that there was any modification
of this position taken up by Iceland as to the content of the commitment
which it contemplated undertaking, and the form of words proposed by
the Icelandic delegation (and reproduced in para. 6 above) was gradually
altered to what ultimately became the penultimate paragraph of the
Exchange of Notes of 1961 (see text in para. 3 above). The United King-
dom position was an immediate recognition that any extension of fishery
limits effected in accordance with international law would be opposable
to the United Kingdom; on the other hand, an agreement would be
necessary, not a unilateral decision, even with the possibility of arbitra-
tion. Thus the British counter-proposal was the following:

“Except in accordance with the terms of any subsequent agree-
ment between the United Kingdom and Iceland, or of any subsequent
multilateral agreement which embodies a generally accepted rule of
law in relation to fishing limits, the Icelandic Government will not
take any action to exclude vessels registered in the territory of the
United Kingdom from fishing in any area outside the 12-mile
limit.” (Records, p. 33.)

8. The immediate response of the Icelandic delegate, after studying
this text, was that it was necessary to “‘leave the Icelandic Government’s
hands ‘untied’ ” in respect of possible further extensions of fishery juris-
diction, in particular, he explained, by applying customary law which
developed more easily than treaty law as the two Geneva Conferences
had shown (ibid., p. 33, last paragraph). The point was taken up by a

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FISHERIES JURISDICTION (DISS. OP. GROS) 131

member of the British delegation who said that a unilateral extension was
not acceptable, even when based on custom; the Icelandic representative
then confirmed that there was a conflict of views on this by saying that
‘further extension beyond 12 miles would only be on a basis of a change
either of international law or of customary law” (ibid., p. 34, para. 2).

9. At the following meeting the point in dispute was defined by the
United Kingdom delegation as follows:

“They appreciated Mr. Andersen’s desire that the draft should
cover the possibility of a further extension of Icelandic fishery limits
in conformity with a new rule of customary law, as distinct from an
international agreement. The difficulty, however, would be how to
establish that such a customary rule existed. In the United Kingdom
view such a rule would not only have to reflect the practice of a
number of States, but also be generally accepted, i.e., established by
general consent and recognized as such by the International Court of
Justice.” (Records, p. 38.)

The same day, the United Kingdom delegation handed to the other
party the following draft:

“Assurance by the Icelandic Government on no extensions
of fishery limits beyond 12 miles

The Icelandic Government will not take any action to exclude
vessels registered in the United Kingdom from fishing in any area
outside the 12-mile limit except in accordance with the terms of a
subsequent international agreement embodying a generally accepted
rule of law in relation to fishery limits, or in conformity with a rule
of international law, established by general consent and recognized
as such by the International Court of Justice, which would permit
such an extension of fishery jurisdiction.”’ (Records, p. 40.)

10. There can therefore be no doubt as to the concrete expression of
the legal point in issue between the two States; Iceland was proposing to
take a unilateral decision, based upon international law—treaty law or
customary law—according to its own assessment of the state of the law
at the time of a fresh extension of the fishery limits, and the United King-
dom was asking that the existence of the rule permitting the extension
should be susceptible of being decided by the Court (cf. a revised draft of
the assurance quoted in para. 9 above: “Any dispute as to whether such
a rule exists may be referred at the request of either party to the Inter-
national Court of Justice.” (Records, Annex 2, para. 6, p. 40.)). According
to the United Kingdom delegation, the assurance would have to cover
three essential points:

“(1) The Icelandic Government will not claim an extension of
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FISHERIES JURISDICTION (DISS. OP. GROS) 132

fishery limits beyond 12 miles except in accordance with a rule of
international law which has been clearly established (a) by embodi-
ment in an international agreement, or (b) accepted by general
consent as a rule of customary international law.

(2) Any dispute about whether such a rule of international law has
been established shall be submitted to the International Court of
Justice: and pending the Court’s decision, any measure taken to
give effect to such a rule will not apply to British vessels.

(3) The assurance on this point will form an essential part of the
agreement.

If these three points could be met then Her Majesty’s Government
would do all they could to help the Icelandic Government on the
form and presentation of the assurance. In particular, if a reference
to the Althing’s Resolution of May 5 1959 was important, they
would have no objection to including one.” (Records, p. 42, em-
phasis added in para. 2.)

I take note of the mention of the Resolution of 5 May 1959, to which
the United Kingdom did not object, but which was left as entirely under
the responsibility of Iceland, and was not incorporated in the agreement
so as to become one of the terms thereof. The [Icelandic Law remains
what it was, without it being possible for the United Kingdom to invoke
it, if it were not observed by Iceland, in support of an international claim
based on the idea that an extension of Iceland’s jurisdiction would only
be lawful if carried out on the basis and in the spirit of the Law of 1948.

The Icelandic delegate replied to the British proposed text that while
the formula proposed in London was not acceptable to his Government:

“there did not seem to be any real differences of opinion between
the two sides. The Iceland Government must state that their aim
was the Continental Shelf. They were, however, ready to state their
intention to base their action on rules of international law and also
their willingness to submit any dispute to the International Court”
(Records, pp. 42-43, para. 7).

What was contemplated was clearly a dispute over a future action by
Iceland, announced quite unequivocally, directed to exclusive jurisdiction
over the waters of the continental shelf, and that a judicial decision
should be obtained on such an action according to international law, and
no more, but that is what the British party was seeking. On 2 December
1960 the Icelandic delegate said that the most difficult feature of the
problem of the assurance was to meet the British requirement that no
measure to apply an extension would be taken pending reference to the
International Court of a dispute relating to such measures (Records,
p. 44, para. 5, in fine).

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FISHERIES JURISDICTION (DISS. OP. GROS) 133

11. The last meeting of the first series of talks confirms that the essen-
tial feature of the assurance would be that “it would . . . be for the Inter-
national Court to decide whether [any act extending Icelandic jurisdiction]
was in fact in accordance with International Law” (Records, p. 46,
para. 3).

It was at this point that the British proposal appears, for six months’
advance notice before any extension, making it possible to refer the
matter to the Court before the measure was actually applied (Records,
p. 46, para. 6), and the drafting of the penultimate paragraph of the
Exchange of Notes of 1961 thereafter progressed more easily. The
United Kingdom delegation proposed three draft texts, and each of
these contained in one form or another the basic idea that possible
disputes would relate to the question whether a rule of international
law exists permitting an extension of Icelandic fisheries jurisdiction
(Records, p. 48 and p. 49, para. 5). Annex A at page 50 gives the final
version of the text expressing in concrete form the British views on the
guarantee which should result from the referral of the matter to the Court
to ensure that any fresh extension of Iceland’s jurisdiction would be in
accordance with international law.

12. This detailed study of the negotiations is necessary to dissipate
any doubt as to what was involved in the commitment to judicial settle-
ment undertaken by Iceland and the United Kingdom in March 1961.
There was never any question of “guaranteeing” the United Kingdom
against anything other than possible Icelandic measures to extend its
fisheries jurisdiction, of which the United Kingdom was already aware,
affecting the superjacent waters of the continental shelf, by means of a
recourse to judicial settlement limited to the question of the conformity
of such measures with international law. All the drafts which were
discussed are quite clear on this point, up to the final text of the Exchange
of Notes of March 1961, where the reference to the conformity of the
measures with international law disappears. Examination of the records
relating to the disappearance of these terms supplies the explanation of
it. The United Kingdom obtained what it had always asked for, but to
spare Icelandic feelings, it accepted a form of words which was less
explicit than the drafts which had been discussed; this is recorded
expressis verbis in the Record for 5 December 1960, page 48, paragraph 1.

It is thus apparent how little in accordance with historical truth it
would be to deduce, from this purely formal concession by the British
Government, that there was a transformation and extension of the system
of a jurisdictional guarantee which that Government had unceasingly
sought as a condition sine qua non of any agreement with Iceland. The
United Kingdom wished to be assured of possible examination by the
Court, according to international law, of any subsequent measure ex-
tending Iceland’s jurisdiction as it was to be recognized in the contem-
plated agreement; it obtained this assurance as it had been negotiated,
and finally accepted by Iceland on the understanding that the formulation
should be pitched in a low key.

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FISHERIES JURISDICTION (DISS. OP. GROS) 134

13. The second series of talks, held from 17 to 20 December 1960,
confirms that the United Kingdom was seeking a ‘“‘watertight” agreement
on the basis of an assurance that Iceland “‘would not attempt to extend
[its fishery limits] beyond 12 miles . . . otherwise than with the agreement
of the International Court” (Record for 17 December, p. 3, para. 15;
again on 18 December, p. 4, para. 3, in the same terms). Furthermore the
Icelandic delegate said that this form of assurance, accepted in principle
by Iceland, “would have the additional advantage, from the British point
of view, of including an undertaking by the Icelandic Government to
the effect that the existing base-lines would not be altered otherwise than
with the agreement of the International Court”. This again confirms, if
it were necessary, that the dispute contemplated involved the examination
according to international law of the extension of the limits, and nothing
else. This was also to draw inspiration from the Court’s Judgment in the
Fisheries case in 1951, where it was said that: ‘‘the method employed for
the delimitation of the fisheries zone . . . is not contrary to international
law” (Z.C.J. Reports 1951, p. 143). For completeness the identical termi-
nology used on 19 December 1960 by the Foreign Minister of Iceland
should be mentioned:

“recognition by Her Majesty’s Government of Iceland’s 12-mile
fishery jurisdiction in return for an assurance against further exten-
sion” (Records, p. 5, para. 1).

14. The Judgment also invokes (para. 32) the attempts to negotiate an
interim agreement in 1972, which were unsuccessful, in support of the
contention that Iceland agreed to negotiate on the basis of a preferential
right. In 1972 Iceland only entered into negotiations with several States
in order to fix very short adjustment periods in respect of its Regulations
extending exclusive jurisdiction to 50 miles, which it never for a moment
contemplated withdrawing or modifying (cf. para. 25 below) and, as
regards the United Kingdom, the kind of discussion which took place is
indicated by the Note of the Icelandic Government of 11 August 1972
(Annex 10 to the United Kingdom Memorial), the very one in which it
is claimed that a request by Iceland for a discussion of preferential rights
can be found, for it ends with the following words: “{c) The term of the
agreement would expire on 1 June, 1974.” This Note of 11 August 1972
dates from after the hearing held by the Court, in Iceland’s absence, on
1 August 1972, on the request for interim measures of protection,.and is
prior to the Order of 17 August 1972, which Iceland has not accepted:
what was contemplated was an agreement for less than two years, and the
Icelandic Government stated that it intended to “‘have full rights . .. to
enforce the regulations [of 14 July 1972]. . . inside the 50-mile limit”.

The abortive negotiations of 1972 are totally irrelevant to the definition
of the subject of the dispute; on the Icelandic side they were directed to
the conclusion of an agreement leading to the extinction of the rights of
the United Kingdom in 1974, and organizing an interim régime until

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FISHERIES JURISDICTION (DISS. OP. GROS) 135

then, the Regulations of 14 July being kept in force, in application of the
Althing Resolution of 15 February 1972, which only contemplated tran-
sitional agreements. Confirmation of this is supplied by an Icelandic
Memorandum of 19 January 1973 (Annex 13 to the Memorial), proposing
an agreement to be in force until | September 1974, i.e., for 18 months
only. Finally the fact that the agreement ultimately concluded on 13
November 1973 entirely reserved the legal position of each party cannot
be overlooked, and for Iceland that position was not a claim to preferen-
tial rights but to exclusive jurisdiction extending to 50 miles. That the
United Kingdom may have had a different conception of Iceland’s rights
is not an element of interpretation of the position of that State.

15. The history of the negotiation of the text founding the jurisdiction
of the Court in the present case explains—if there were any need, the text
being clear—the laconic provision in the penultimate paragraph of the
1961 agreement. When Iceland entered into an undertaking in 1961 it did
so to a limited extent. The Court should give an answer on the only
question which could be brought before it; since it has not done so, it has
not exercised the jurisdiction conferred by the agreement. I have made it
clear for my own part that I regarded the extension from 12 to 50 sea
miles as contrary to general international law, and therefore non-oppos-
able to any State fishing in the waters adjacent to the 12-mile limit around
Iceland. The Court stated in its Judgment in the North Sea Continental
Shelf cases that: “The coastal State has no jurisdiction over the super-
jacent waters.” (.C.J. Reports 1969, p. 37, para. 59.) The claim of Iceland
is expressly in relation to those waters. As to the lawfulness of an
encroachment into sea areas which all States fishing in the area, without
exception, regarded as forming part of the high seas on | September 1972,
it is unarguable that it was lawful; Articles 1 and 2 of the Convention
on the High Seas and Article 24 of the Convention on the Territorial Sea
are provisions which are in force, and since the only argument relied on
to exclude them is that they are outdated, no reply on this point is needed;
the calling of a third codifying Conference in July 1974 amply demon-
strates that certain procedures, and agreement, are necessary to replace
codifying texts. Until different texts have been regularly adopted, the
law of the sea is recorded in the texts in force.

It has also been said that a claim extending beyond 12 miles is not
ipso jure unlawful, because there have been many claims of this kind;
but by conceding that these claims are also not ipso jure lawful one admits
that acceptance by others is necessary to make them opposable. What
could a claim which was disputed by all the States concerned in a given
legal situation be, if it were not unlawful? But since all States fishing in
the Icelandic waters in question are opposed to the extension, what is the
reason for not stating this and drawing the necessary conclusion?

There is no escaping the fact that if the States which oppose the exten-
sion cannot do so on the basis of a rule of international law, their opposi-
tion is ineffective, and this must be said; but if they can base their opposi-
tion on such a rule, it is equally necessary not to hesitate to say that. It is

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FISHERIES JURISDICTION (DISS. OP. GROS) 136

the accumulation and the constancy of the opposition which should have
obliged the Court to make a general pronouncement in the present case.

This was in fact the purpose of the first submission of the United King-
dom, which is not answered in the Judgment; furthermore the Agent said
in the course of his argument that it was understood and accepted ‘that
submissions {b) and (c) are based on general international law and are
of course not confined merely to the effect of the Exchange of Notes”.
The Court has decided entirely otherwise. As a result of its refusal to
give judgment on the conformity of the 50-mile extension with general
international law, the Court has had to treat the 1961 agreement as the
sole ground of non-opposability of that extension to the United King-
dom, interpreting that agreement as a recognition by Iceland that the
Court has jurisdiction for any dispute concerning any measure relating
in any way to fisheries.

16. Going beyond the events of 1961, it should be added that analysis
of Iceland’s position on the fisheries problem for the last quarter-century
and more leads to the conclusion that that State has unremittingly
advanced, and secured recognition of, the view that claims as to the
extent of the fishery zone were entirely distinct from probiems of conser-
vation. Thus under the North-West Atlantic Fisheries Convention of 8
February 1949 (Art. I, para. 2), and then under the North-East Atlantic
Fisheries Convention of 24 January 1959, Iceland was to be one of the
parties which attached the greatest importance to the formal reservation
that those conventions did not affect the rights, claims, or views of any
contracting State in regard to the extent of jurisdiction over fisheries.

The constant element in the policy of Iceland appears to me to be the
distinction between limits of an exclusive fishery zone, and a claim to
preferential rights beyond that zone. These are two clearly different
problems; by asserting, by means of its Regulations of 14 July 1972,
exclusive fisheries jurisdiction up to a 50-mile limit Iceland took up its
position in the field of its claims as to the extent of its exclusive fishing
zone, as the two parties to the 1961 agreement had foreseen; this was the
legal point which the Court was to decide.

*

17. Subparagraph 3 of the operative clause of the Judgment contains a
decision that there is an obligation to negotiate between Iceland and the
United Kingdom ‘‘for the equitable solution of their differences con-
cerning their respective fishery rights . . .”’, and subparagraph 4 indicates
various considerations as guidelines for such negotiations. I consider that
the role of the Court does not permit of it giving a pronouncement on
these two points, and that by doing so, the Court has exceeded the bounds
of its jurisdiction.

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FISHERIES JURISDICTION (DISS. OP. GROS) 137

18. Subparagraph 3 refers to differences concerning the “respective”
fishery rights of the two States. There are of course differences, since
Iceland is claiming to exclude the United Kingdom finally from the area
up to 50 miles, but this claim is made erga omnes, and it is somewhat
unreal to treat as a bilateral problem, capable of being bilaterally resolved,
the effects of the Icelandic Regulations of 14 July 1972 asserting exclusive
jurisdiction over the superjacent waters of the continental shelf, after
having declined to reply to the question raised as to the unlawfulness of
such Regulations in international law. Although in subparagraph 4 there
are formal safeguards for the position of the other States, the Court has
regarded it as possible, to isolate, as it were, the bilateral differences and
settle them by the Judgment. This is the first point that I should deal
with before turning to the substance of subparagraphs 3 and 4 of the
operative clause of the Judgment.

19. The origin of these subparagraphs 3 and 4 of the operative clause
is in the last part of the United Kingdom’s submissions (final submission
(d)) which gave the dispute a wider dimension than the sole question
of the lawfulness of the unilateral extension of jurisdiction, and on the
basis of that submission problems of conservation have been extensively
discussed in argument. But the bounds of a judgment are not fixed by a
party in its Application, nor in its final submissions, nor, a fortiori, in its
argument, when the jurisdiction being exercised is one specially laid
down by a treaty, with a view to bringing before the Court a precise
question of law. Particularly when the other Party is absent from the
proceedings, the Court cannot simultaneously decline to reply to the
joint request for a declaratory judgment which was indisputably made in
the 1961 agreement, and decide what the conditions shall be of negotia-
tions over conservation as to which no-one but the Applicant has ever
asked its opinion, since it should be remembered that according to Ice-
land there are 11 States regularly fishing in the waters around Iceland
(cf. Fisheries Jurisdiction in Iceland, Reykjavik, February 1972, table 1,
p. 14). As for the United Kingdom, its counsel, in reply to a question on
29 March 1974, stated that in the United Kingdom’s pleadings, the only
States which were regarded as interested or affected or concerned by the
question of fisheries around Iceland were those which have in the past
fished in that area, that is to say, apart from the United Kingdom and
Iceland, the Federal Republic of Germany, the Faroes, Belgium and
Norway. Thus questions also arose as to the nature of the interest in the
fisheries of the geographical area in question, which the Judgment neither
takes into account nor resolves.

20. It is now some considerable time ago that attention was drawn to
the difficulties which result from submissions being drafted both as a
restatement of the arguments in support of the claim and as the final
definition of what the Court is asked to decide (cf. ‘Quelques mots sur
les ‘conclusions’ en procédure internationale’, J. Basdevant, Mélanges
Tomaso Perassi, p. |75). The present case affords a fresh example of this.
The Court, which is the sole judge of its jurisdiction, must therefore sort

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FISHERIES JURISDICTION (DISS. OP. GROS) 138

out what in the submissions is a statement of arguments and what is the
precise statement of the claim; the claim cannot go beyond the subject of
the jurisdiction conferred upon the Court, and that jurisdiction was
limited to a declaratory decision as to the conformity of Iceland’s uni-
lateral extension of jurisdiction from 12 to 50 miles with existing inter-
national law on 1 September 1972, the date on which the Icelandic
Regulations were brought into force.

21. Lf one reads the second submission in the United Kingdom’s
Application it is apparent that the second part thereof was so drafted
that it could not constitute a claim, but merely an argument in support
of the first part of that submission, by which the Court was asked to
declare that questions of conservation cannot be regulated by a unilateral
extension of limits to 50 miles, as a sort of consequence of the declaration
asked for as to the non-conformity of the Icelandic regulations with
general international law, in the first submission of the United King-
dom. The submission continues with the following:

“(questions of conservation] are matters that may be regulated, as
between Iceland and the United Kingdom, by arrangements agreed
between those two countries, whether or not together with other
interested countries and whether in the form of arrangements reached
in accordance with the North-East Atlantic Fisheries Convention
of 24 January, 1959, or in the form of arrangements for collaboration
in accordance with the Resolution on Special Situations relating to
Coastal Fisheries of 26 April, 1958, or otherwise in the form of
arrangements agreed between them that give effect to the continuing
rights and interests of both of them in the fisheries of the waters in
question” (Application, para. 21; emphasis added).

A further version of this submission was given in the Memorial on
the merits (reproduced in para. 11 of the Judgment) where the obligation
to negotiate appears formally expressed, and was to be maintained as a
final submission. The Court would have exhausted its jurisdiction by
saying, in reply to the first part of the submission, that questions of con-
servation cannot be regulated by a unilateral extension of limits to 50
miles and a claim by Iceland to exclusive jurisdiction in that zone.

How could such a general question of law as conservation involving
at least 11 fishing States be judicially settled “‘between Iceland and the
United Kingdom ... whether or not together with other interested
countries”? While it was possible in 1961 for Iceland and the United
Kingdom to agree on an assurance against any fresh extension of juris-
diction, the effect of which would be suspended as between those two
States by recourse to the Court, it is not reasonable to imagine that a
system of conservation of marine resources concerning 11 States could
be worked out by two of them. The importance of the United Kingdom’s
interest in the fisheries around Iceland is recognized. But the question
put to the Court is not the equitable sharing of the resources of these
fisheries, a suggestion analagous to that which the Court rejected in its

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FISHERIES JURISDICTION (DISS. OP. GROS) 139

Judgment with regard to the delimitation of the continental shelf of the
North Sea U.C./. Reports 1969, p. 13, para. 2, and pp. 21 to 23, paras.
18 to 20), from which Judgment I would adopt the expression that in the
present case, there is nothing “‘undivided to share out” between the
United Kingdom and Iceland. The idea of the “respective” fishing rights
is not a correct description of the position in fact and in law. The legal
status of the fisheries between 12 and 50 miles from Iceland can only be
an objective status, which takes account of the interests of all States
fishing in those waters. Further, the problems of “‘fishing rights” in the
waters around Iceland have been under study for a considerable time
with the States concerned, and Iceland has recognized the need to resolve
those problems with such States, as has also the United Kingdom.

22. On 22 July 1972—at the height of the Iceland fishery crisis and
one week after the promulgation of the Icelandic Regulations of 14 July
1972 which constitute the act impugned in the United Kingdom Appli-
cation—there was signed in Brussels an agreement between the European
Economic Community and Iceland in order to ‘consolidate and to
extend ... the economic relations existing between the Community and
Iceland”. The first article relates that ‘‘the aim is to foster in the Commu-
nity and in [celand the advance of economic activity [and] the improve-
ment of living and employment conditions”. The agreement applies to
fish products (Art. 2), to which a Protocol No. 6 is specially devoted;
Article 2 of that Protocol provides:

“The Community reserves the right not to apply the provisions of
this Protocol if a solution satisfactory to the Member States of the
Community and to Iceland has not been found for the economic
problems arising from the measures adopted by Iceland concerning
fishing rights.” (Emphasis added.)

In application of this Article 2 of Protocol No. 6, and at the request
or with the approval of member States of the Community (including the
United Kingdom and the Federal Republic of Germany), although the
agreement with Iceland had come into force on | April 1973, the imple-
mentation of the Protocol on Icelandic fish products has already been
postponed five times, the last time on | April 1974. To prevent Iceland
from benefiting from a customs arrangement granted it by a treaty be-
cause there is an unsettled dispute over “‘fishing rights” is, to say the
least, to declare oneself concerned or affected by that dispute. Thus the
European Economic Community has five times declared its direct interest
in coming to a settlement regarding fishing rights in the waters round
Iceland by refusing to grant Iceland the implementation of the special
tariff provisions laid down in the agreement of 22 July 1972. This agree-
ment is moreover mentioned in the White Book on the fishing dispute
published by the British Government in June 1973 (Cmnd. 5341): the
reference occurs in paragraph 22, immediately following a paragraph
on Anglo-German co-operation, and we read:

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FISHERIES JURISDICTION (DISS. OP. GROS) 140

“It will be for the Community to declare when a satisfactory
solution to the fisheries dispute has been achieved and, consequently,
when to decide that the terms of the Protocol should take effect.”

23. The common interest evinced by the member States of the Euro-
pean Economic Community, and the terms of Article 2, paragraph |,
of the above-cited Protocol No. 6, alike show that these States are not
indifferent to the elaboration of a régime for fisheries in the waters round
Iceland. For its part, Iceland, by accepting the agreement and Protocol
No. 6, has recognized the interest of the European Economic Community
in the settlement of the question of fishing rights. Thus the memorandum
explaining the grounds of the first proposal to postpone implementation
of Protocol No. 6, submitted by the Commission to the Council on 20
March 1973, refers to the ‘‘economic problems arising from the measures
adopted by Iceland concerning fishing rights” for the member States of
ihe Community. This position of Iceland vis-à-vis the EEC may usefully
be compared with that of Norway in its agreement of 14 May 1973 with
the EEC, which came into force on | July 1973: the concessions granted
therein by the EEC will only be valid provided Norway respects ‘‘fair
conditions of competition”; on 16 April 1973, the date when the agree-
ment was initialled, the Commission indicated that all the tariff-reduc-
tions granted on certain fish products of Norwegian origin had been
agreed to subject to the continued observance of the existing conditions
of overall competition in the fishing sector, which covers the eventuality
of any unilateral extension of the fishery zone.

As is well known, the member States of the European Community
constitute a majority in the North-East Atlantic Fisheries Commission;
what is more, an observer of the Community as such takes part in its
work, as is also the case of the North-West Atlantic Fisheries Commis-
sion. The catch-quotas of the participant Community members could,
according to a proposal made by the Commission of the Communities
to the Council, be negotiated and administered on a Community basis.

24. Now an agreement whereby Iceland formally accepts that treaty
provisions of undoubted economic importance for that country should be
suspended for so long as the problem of the economic difficulties arising
out of the measures it has taken in respect of fishing rights remains
unresolved would appear to constitute a recognition by Iceland and the
LEC of an obligation to negotiate. The negotiations concern the econo-
mic consequences of Iceland’s claim to exclusive fisheries jurisdiction,
and the context of the negotiations is no longer, directly, fishing rights; but
what the EEC understood in an analogous situation has been seen in the
instance of Norway, and the distinction should not be over-nicely drawn.
The question of fishing rights is necessarily affected by any decision
regarding the economic consequences, whatever solution is reached for
dealing with the economic consequences and whatever the chosen
method; but the debate is one of wider scope, and extends to

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FISHERIES JURISDICTION (DISS. OP. GROS) 141

general economic relations between all the countries concerned. While
the Court, in subparagraph 4 of the operative part of the Judgment, has
not sought to define more than the conservation aspect of fishing rights
in the prescriptions directed to the United Kingdom and Iceland, the
working-documents of the Community accurately convey an all-round
picture of the various aspects of the problem of fishing in the waters
round Iceland. One more example: a Danish memorandum on fishing
submitted to the Council on 20 March 1973 recommends, after reviewing
the problem of regions almost wholly dependent on fishing (Greenland,
the Faroes), special measures of both a structural and a regional nature.

By finding, in the Judgment, that there is a bilateral obligation to
negotiate concerning ‘‘respective” rights of a bilateral character, when
Iceland has accepted a multilateral obligation to negotiate on much
wider bases in institutions and international bodies which do not come
within the purview of the Court’s jurisdiction, the Court has formulated
an obligation which is devoid of all useful application.

25. The necessity of dealing with the problem of fisheries in the waters
round Iceland comprehensively and with those States particularly inter-
ested is also accentuated by the fact that certain States have concluded
agreements of an interim character with Iceland, as the United Kingdom
did on 13 November 1973, in order to mitigate the difficulties caused them
by the application of the Icelandic Regulations of 14 July 1972. The
first negotiations were conducted with the local government of the Faroe
Islands and enabled fishermen from these islands to fish within the 50-
mile limit (Reykjavik agreements of 15-16 August on bottom-line and
handline fishing and of 19 September 1972 on trawl fishing). A Danish
Note verbale of 23 August 1972 states that ‘‘questions concerning fishing
in the North Atlantic should ... be settled in an international context”
and expresses the hope that negotiations “‘with the Parties whose inter-
ests are threatened by the new Icelandic regulations may be resumed as
quickly as possible” (cited in Revue générale de droit international public,
1974, pp. 343 f. 1).

Belgium, on 7 September 1972, concluded with Iceland an agreement
which was renewed for 18 months in March 1974; Article 1 reserves the
position of the parties on the extent of fisheries jurisdiction, but when the
text was transmitted to the Council of the European Communities, the
following indication was given: “the Belgian Government considers that,
so far as Belgium is concerned, this agreement constitutes a satisfactory,
albeit temporary solution within the meaning of Article 2 of Protocol
No. 6 to the EEC-Icelandic Agreement of 22 July 1972”. Another agree-
ment was concluded with Norway on 10 July 1973. These agreements,
even when they reserve the legal position of each of the States vis-a-vis
Iceland, necessarily take account of the 1972 Regulations which are the
source of the dispute, and Iceland doubtless views them as provisional
accommodations of very limited duration which have been made pending

1 Quotations translated from French by the Registry.

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FISHERIES JURISDICTION (DISS. OP. GROS) 142

the general acceptance of its claim. (The agreement of 19 September 1972
concluded with the Faroes is subject to denunciation by Iceland at any
time, while it may denounce that of 15-16 August at six months’ notice.)
Hence all one may deduce therefrom is an affirmation of the interest of
those States in reaching an objective solution of the problem. These
agreements, added to the treaty with the EEC which one of them men-
tions, give concrete support to the dual conclusion that there exists a
group of specially interested States concerning which the Court has no
means of knowing what intentions they may have of negotiating with a
view to establishing an objective fisheries régime, and that it has no
jurisdiction to lay down the law to them, not even by way of directions
for negotiation. The failure of all these bilateral negotiations to arrive
at anything other than phasing-out agreements which leave the sub-
stantive problem aside shows that the situation will be resolved solely
by a multilateral agreement corresponding to the objective character
of the régime desired.

26. It was not a series of accidents which caused these problems to be
considered successively under the auspices of the OEEC (in 1956, in order
to put an end to the difficulties of landing Icelandic fish catches in British
ports) and of NATO (informal talks in 1958 between representatives of
Iceland, the United Kingdom, the Federal Republic of Germany and
France), before being raised in the framework of the European Econo-
mic Community and the treaty of 1972, but the recognition of the objec-
tive character of the régime of these fisheries.

If a bilateral agreement with Iceland was possible in 1961, that was
vecause the essential content of that agreement consisted of the United
Kingdom’s recognition of the 12-mile limit; but in the last portion of the
operative part of its Judgment the Court passes upon a question regarding
a fisheries régime for the conservation of resources, and there is nothing
vilateral about that. Iceland pointed this out in clear terms to the United
Kingdom during the London conversations of 3 and 4 November 1971
(United Kingdom Memorial on the merits, para. 23) before enacting its
1972 Regulations: Iceland’s purpose was to protect its fishing industry
against massive competition by ‘‘super-trawlers” from Spain, Portugal,
Poland, the USSR and Japan and to facilitate the planned expansion
of Iceland’s own fishing industry (it will be noted that [celand here adds
three States, to the eleven listed in paragraph 19 above, but, in any
event, the circle of States concerned is not unlimited even if such varia-
tions are to be found; it is thus wholly irrelevant to look into the claims
of States which are equally far removed from the Iceland fishery area
and Iceland’s preoccupations). Iceland has wider aims than conservation.
A review of Iceland’s economic problems seen in relation to an extension
of fisheries jurisdiction is to be found in the already-quoted OECD report
of 1972 (in particular, pp. 32-39). As the Court did not touch upon this
aspect of the situation, [ will simply say that any tribunal that wished.
to study the régime of Iceland’s fisheries would have found it indispen-
sable to consider these problems; it is not sufficient to say in general

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FISHERIES JURISDICTION (DISS. OP. GROS) 143

terms that Iceland is dependent on its coastal fisheries “for its livelihood
and economic development”’ if no attempt is made to grasp the economic
realities underlying the phrase. Indeed, for want of all research on the
point, the Court’s pronouncement constitutes simply an abstract reply
to an abstract question. Even from the standpoint adopted by the Court,
whereby a problem of objective régime may purportedly be resolved by
means of bilateral negotiations, the question should have been placed
within its true dimensions, these being of wider scope than conservation
procedure, which, in the unique case of Iceland, is probably not the only
factor capable of reconciling the legitimate interests that stand confronted
(cf. para. 31 below).

27. The obligation to negotiate in the present case does not originate
in a kind of general undertaking drawn from Article 33 of the Charter,
which is above all a list of means of settlement; this theory makes of the
obligation to negotiate a universal but an uncertain remedy, since when
negotiations take place without a specific objective the Parties necessarily
remain free to appraise their desirability and the necessity of their suc-
cess. There is only one obligation laid down in Article 33, that of seeking
a solution to any dispute likely to endanger peace and security, and
parties are left entirely free to adopt the “peaceful means of their own
choice”. There is nothing to authorize selecting one of those means,
negotiation, and turning it into a legal obligation, when all the other
methods remain open. The danger in this new construction is that it may
have the result of imposing upon States which are before the Court in
relation to a specific dispute, in the form of directions for negotiations
occasioned by that dispute—but not on the dispute itself—, rules of
conduct which a mediator or conciliation commission might propose,
though without compulsory effect. Thus it is as if, in creating the idea of
an obligation to negotiate on account of Article 33, it were desired to
lend one of the means greater effect than the others. This interpretation
would enable the Court, in any grave dispute, to transform itself into an
arbitrator, conciliator or mediator, as the case might be, and that is what
it has done in the present instance. Article 33 of the Charter does not
permit this evolution in the role of the Court, which is contrary both
to the Charter and to the Court’s own Statute. In paragraph 100 of its
1969 Judgment the Court said that one must not “‘over-systematize”’
(Z.C.J. Reports 1969, p. 54).

The source of the obligation to negotiate in this case is the legal nature
of the fisheries régime which is the subject of the dispute, and that can
only be actualized by means of negotiation among all the States concer-
ned; it is there, solely, that the Court could have found the answer to the
question it had chosen to ask itself and discovered that it could not incor-
porate it into its decision but at most give it a place in the reasoning of
the judgment.

28. To conclude my observations on subparagraphs 3 and 4 of the
Operative part: by virtue of the interpretation placed on the 1961 agree-
ment and the negotiations that enabled it to be concluded (see in parti-

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FISHERIES JURISDICTION (DISS. OP. GROS) 144

cular paras. 25 and 47 of the Judgment) the Court considers that Iceland
has agreed to the inclusion of problems of conservation (zones and me-
thods), preferential rights and historic rights within the categories of
dispute which it might find the Court adjudicating. I have already indicated
that it appeared to me to be an unwavering constant of Icelandic policy
always to distinguish problems of conservation and preferential rights
from the problem of the extension of fisheries jurisdiction (para. 16
above) and that the 1961 agreement was one of the proofs of this. If this
position had shifted in 1961, why is there nothing in the records to reveai
as much? Yet what would have been the concession in point?—the
recognition that, in relation to any extension beyond the 12-mile limit
of the exclusive fishery zone, any problems of conservation or preferen-
tial and historic rights might also be referred to adjudication as elements
of a dispute over the extension of the zone. I must say that I find this
improbable in the absence of any formal admission on the part of Iceland
and considering its constant attitude of opposition to all confusion of
problems concerning the breadth of the exclusive fishery zone with
problems of the fishery régime beyond that zone.

*

29. One further point remains to be examined: what is the effect of
this last part of the operative clause of the Judgment? The interim agree-
ment of 13 November 1973 is a treaty which the Court is obviously
powerless to modify; and it applies as an interim agreement until 13 No-
vember 1975 “pending a settlement of the substantive dispute and without
prejudice to the legal position or rights of either Government on the
question” (this is from the first sentence of the agreement). In 1972 the
Parties conducted unsuccessful negotiations directed to the conclusion
of an interim agreement for the duration of the proceedings before the
Court; the agreement of November 1973 is different: it guarantees the
United Kingdom a certain provisional position for two years in any
event, while expressly reserving the question of settlement of the dispute.
It is clearly contrary to the first paragraph of the agreement, cited above,
and contrary to all the probabilities, to say that by using this expression
Iceland agreed that a decision of the Court on the merits could settle the
dispute. The legal position of Iceland is in fact recognized by the agree-
ment, and it is reserved—thus left outside the agreement. If Iceland had
tacitly accepted that the Court should be empowered to settle the dispute
on the merits, which it has always refused to do, it would thus have recog-
nized the jurisdiction of the Court. That amounts to saying that it would
have granted what in its eyes was a favourable position to the United
Kingdom for two years, and in addition recognized that the Court would
give judgment on the merits of a dispute as to which Article 7 of the
agreement indicates that the Parties are aware that it will no doubt be
still in existence in November 1975: “Its termination [that of the agree-

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FISHERIES JURISDICTION (DISS. OP. GROS) 145

ment] will not affect the legal position of either Government with respect
to the substantive dispute.” Comparison of this Article 7 with the first
paragraph seems to me to leave no room for doubt. Furthermore, the
history of Article 7 was already available in a British document (White
Book, Ann. A, Doc. 9) which reproduces the counter-proposals for an
interim agreement made by the United Kingdom on 3-4 May 1973 in the
course of talks in Reykjavik. The Icelandic ministers had asked that at
these talks the question should be examined whether, if an interim arran-
gement were agreed, the proceedings before the Court could be suspended
(White Book, Ann. A, Doc. 6 (f), p. 16). The draft counter-proposal of
the United Kingdom shows how the negotiations went on this point
(White Book, Ann. A, doc. 9, para. 6) and my colleague, Judge Petrén,
has demonstrated in his dissenting opinion that Iceland refused to accept
a form of words for Article 7 which would have provided for an obligation
to negotiate with the United Kingdom on the merits before November
1975; that obligation having been formally excluded, it is impossible to go
against the clear text of the treaty and impose it. The 1973 agreement,
which maintains the legal position of the Parties as they stand at present
and as they may be in November 1975, therefore prevents the bilateral
obligation to negotiate pronounced by the Court from having any effect.
The two Governments could of course decide to negotiate tomorrow, if
they so wish, but there is nothing to oblige them to do so, and the 1973
agreement recognizes this.

This is not all. The general considerations in subparagraph 4 of the
operative clause of the Judgment, being intended for bilateral Anglo-
Icelandic negotiations, are in danger of being overtaken by events by
November 1975. If it is suggested that before November 1975 the United
Kingdom could come back to the Court, in one way or another, [ should
explain briefly that it seems to me that the position is otherwise.

30. The Judgment (subpara. 4 of the operative clause) is not applicable
until 1975, since the interim settlement for British fishing was reached
with the reservation of any settlement on the merits. This again confirms
the abstract, not to say illusory, aspect of this final part of the operative
clause. It also follows from this that any change in international law in
this field will render the Judgment obsolete.

Paragraph 76 of the Judgment states that the agreement of November
1973 does not relieve the Parties from their obligation to negotiate;
even if such a bilateral obligation existed, which has here been contested,
the 1973 agreement broke new ground, where modification is not possible,
as defined in the following way by the Prime Minister of the United
Kingdom in the House of Commons:

“Our position at the World Court remains exactly as it is, and the
agreement is without prejudice to the case of either country in this
matter. This is an interim agreement covering two years from the
moment of signature this afternoon, in the expectation that the
Conference on the Law of the Sea will be able to reach firm conclu-

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FISHERIES JURISDICTION (DISS. OP. GROS) 146

sions. We all know the difficulties facing a conference on the law of
the sea, but both Governments hope that it will have been possible
by the expiration of this agreement to reach agreement on the law of
the sea and that that will then govern the situation.” (Hansard,
Commons, 13 November 1973, column 252; emphasis added.)

If the British Government recognizes that the agreement is without
prejudice to the legal position of the Icelandic Government, and is not
contemplating any possibility prior to the expiration of the agreement
other than general agreement on the law of the sea in connection with
the proceedings of the Third Conference on the Law of the Sea, it defi-
nitely appears that the two Governments considered that the 1973 agree-
ment “relieved” them from bilateral negotiation for so long as no general
agreement has been reached in the general framework of the proceedings
in progress. These statements wouid also appear to exclude the hypothesis
of any return to the Court prior to the termination of the agreement of
November 1973, to seek judgment on the substantive dispute, which is
agreed to be reserved.

31. Since a dissenting-or separate opinion should be kept within limits,
I will not deal with other points on which I also disagree with the Judg-
ment,—with the exception of one of these. The invocation of the Judg-
ment in the North Sea Continental Shelf cases to support the present
decision, with regard to the recognition of a bilateral obligation to nego-
tiate and the reference to equity in paragraphs 75 and 78 of the Judgment
and in the final part of the operative clause, is unjustified. The present
legal position is quite distinct, since it was the special agreements which
had decided that the task of actually fixing the boundaries should be
reserved to the Parties, who undertook to do so ‘‘on the basis of, and in
accordance with, the principles and rules of international law found by
the Court to be applicable” (.C.J. Reports 1969, p. 13, para. 2 of the
Judgment). Thus in 1969 the Court did exactly the opposite of what it has
done today, when instead of giving a judicial statement of the state of
international law on the subject, and leaving the application thereof to the
Parties, the Judgment disregards the obligation to state the law, and falls
back on an obligation to negotiate which was not provided for in the
1961 agreement by the two States. Furthermore, in 1969 the delimitation
of the continental shelf only concerned the three States which were
Parties before the Court, and they alone were competent to effect it.
That is not the case here for the matters which the Court has sought to
resolve in subparagraph 4 of the operative clause: that is, the bilateral
organization of a fishery conservation régime while there is a multilateral
obligation to negotiate.

Since I also attach particular importance to the question of equity, I
would recall that the Court on that occasion took the greatest possible
precautions in its drafting specifically in order to prevent its observations
being treated as of general application. The inequity of the geographical

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FISHERIES JURISDICTION (DISS. OP. GROS) 147

situation was simple, and was the result of the natural configuration of
the coast; the adjustment involved a single operation, which was also
simple, namely, as just a modification as possible of the boundary. The
fisheries situation of Iceland is quite unrelated to this, since it involves
interests which are of their nature extremely diverse; to inject the concept
of equity into a recommendation of negotiations is not sufficient to make
it applicable, because of the circumstance, which is unique in the world, of
the absolute economic dependence of a State on fisheries. “‘Equality is to
be reckoned within the same plane, and it is not such natural inequalities
as these that equity could remedy” (/.C./. Reports 1969, p. 50, para. 91).
To hold the balance between the economic survival of a people and the
interests of the fishing industry of other States raises a problem of the
balanced economic development of all, according to economic criteria, in
which fishing is only one of the elements taken into account, and of which
the bases are international interdependence and solidarity. The concepts
of rate of economic growth, industrial diversification, vulnerability of an
economy faced with the ‘‘caprices” of nature, population structure and
growth, use of energy, investment needs, development of external markets
for fish products, regularization of such markets, foreign participation in
Icelandic undertakings, industrial development funds, among many
others, define the economic interests of Iceland in obtaining a certain
settlement of the fisheries problem. Not merely have these expressions
never been used, but it is clear that differences of views on these questions
do not give rise to justiciable disputes, since these are problems of econo-
mic interests which are not the concern of the Court. But the Court cannot
make them disappear by refusing to see anything but a conservation
problem; the balance of facts and interests is broken.

*

32. In effect the Judgment decides that Iceland did not have the right
to extend its fisheries limits from 12 to 50 miles on grounds of conserva-
tion, which will be generally conceded, but this is to choose a ground
which is not that of Iceland, after having avoided deciding that, in the
present state of existing law, the extension to 50 miles is not opposable to
the fishing States, whatever ground may be relied on for such an extension,
including the interests of Iceland as it has explained them: but to dis-
regard a line of argument amounts to rejecting it. Then, sticking to this
single theme of conservation, the Court constructs for the two parties to
a dispute a system of consultation on conservation problems as if the
solution of these could take the place of the only decision which was con-
templated in 1961, namely that on the lawfulness of any fresh extension
of limits beyond 12 miles. To respond to a dispute over a claim to exclusive
jurisdiction by giving guidelines for a conservation agreement is not a
fulfilment of the Court’s task; even if the Court thought that the question
raised under the agreement was too narrow, it is the question which was

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FISHERIES JURISDICTION (DISS. OP. GROS) 148

defined by the parties. An agreement can never define anything other than
what was subject to negotiation at the appropriate time between the par-
ties who concluded it; as the Court has said: “tno party can impose its
terms on the other party” U.C.J. Reports 1950, p. 139). Nor can a court
impose its interpretation of an agreement on the States which concluded
it, so as to make it say something more than, or something different from,
what it says. Here again the Court has already spoken:

‘.., though it is certain that the Parties, being free to dispose of
their rights, might ... embody in their agreement any provisions
they might devise .. ., it in no way follows that the Court enjoys the
same freedom; as this freedom, being contrary to the proper func-
tions of the Court, could in any case only be enjoyed by it if such
freedom resulted from a clear and explicit provision . . .” (Free Zones
of Upper Savoy and the District of Gex, Order of 6 December 1930,
P.C.I.J., Series A, No. 24, p. 11).

33. By centring its decision around problems of conservation which
are not the subject of the dispute which arose in 1972 as a resuit of Ice-
jand’s extension of its fisheries jurisdiction from 12 to 50 miles, the Court
has raised an abstract question to which it has given, in the last part of the
operative clause of the Judgment, an abstract reply. In contentious cases,
the Court is bound by what it is asked to adjudge; when it applies Article
53 of the Statute, the rule is still stricter, since the Court must satisfy itself
that it is not going further or in a direction other than what was agreed to
by the State which is absent from the proceedings, in the instrument which
established the competence of the tribunal. Thus the Court observed in
the Ambatielos case that: “tin the absence of a clear agreement between
the Parties . . . the Court has no jurisdiction to go into all the merits of the
present case” (.C./. Reports 1952, p. 39); the least that can be said is
that the problems of conservation were not the subject of such discussion
in 1960 between the United Kingdom and Iceland, and that it is difficult
to see by what unequivocal agreement it could have become a dispute in
itself under the Exchange of Notes of 1961.

34. The Court has not fulfilled its mission in the present case, since
is has not decided the legal question which the Parties to the 1961 agree-
ment had envisaged laying before it, for purposes which they were free to
decide upon, and since it has dealt with the problem of the conservation
of Icelandic fisheries as being the substance of the dispute. Such a judg-
ment cannot therefore be effective for the settlement of the real substan-
tive dispute, even if there were an intention to achieve this, as appears
from paragraph 48 and from certain covert allusions in the text.

The real task of the Court is still to ‘‘decide in accordance with inter-
national law such disputes as are submitted to it” (Art. 38 of the Statute).
To introduce into international relations an idea that the decisions of the
Court may be given according to what on each occasion the majority
thought to be both just and convenient, would be to effect a profound
transformation. It will be sufficient to quote the Court itself:

149
FISHERIES JURISDICTION (DISS. OP. GROS) 149

“Having thus defined . . . the legal relations between the Parties . . .,
the Court has completed its task. It is unable to give any practical ad-
vice as to the various courses which might be followed with a view
to terminating the asylum, since, by doing so, it would depart from
its judicial function. But it can be assumed that the Parties, now that
their mutual legal relations have been made clear, will be able to find
a practical . .. solution...” (.C.J. Reports 1951, p. 83.)

That this new concept must be rejected as in contradiction with the role
of an international tribunal appears to me to be clear, simply from the
observation that an international court is not a federal tribunal; the
States—of which there are now not many—which come before the Court
do not do so to receive advice, but to obtain judicial confirmation of the
treaty commitments which they have entered into, according to estab-
lished international law, in relation toa situation with which they are well
acquainted. The Court saw all this in the Judgment in the Fisheries case,
in which the special nature of the situation was the dominant feature in
the decision {1.C.J. Reports 1951, Judgment of 18 December 1951); by
seeking to effect, under cover of a case limited to Icelandic fisheries, a
pronouncement of universal effect, the Court contradicts its whole
previous attitude. As long ago as 1963, Charles De Visscher wrote in
his commentary on judicial interpretation:

“The function of interpretation is not to perfect a legal instrument
with a view to adapting it more or less precisely to what one may be
tempted to envisage as the full realisation of an objective which was
logically postulated, but to shed light on what was in fact the will
of the Parties.”

There could be no better response to the philosophy which inspires the
Judgment and the postulates it contains (particularly paras. 44-48).

(Signed) André Gros.

150


SA AMA NE

152

ANNEX.

DOCUMENTS SUBMITTED TO THE COURT.

I.—DocuMENTS FILED ON BEHALF OF THE BELGIAN GOVERNMENT.
In the course of the written proceedings :

Award of the Mixed Arbitral Tribunal of July 5th, 1923.

Award of the Mixed Arbitral Tribunal of May 27th, 1925.

Award of the Mixed Arbitral Tribunal of October 30th, 1925.

Cahier des charges (extracts).

Tariff of the Pernik Mines, February 13th, 1924.

Tariff of the Pernik Mines, February 14th, 1925.

Tariff of the Pernik Mines, June 12th, 1925.

Letter of the Electricity Company of Sofia and Bulgaria to the Pernik
Mines, No. 707, May 8th, 1929.

Letter of the Pernik Mines to the Electricity Company, No. 5734,
May 1oth, 1929.

Letter of the Pernik Mines to the Electricity Company, No. 6627,
May 29th, 1929.

Letter of the Municipality of Sofia to the Electricity Company, No. 6786,
August roth, t931-

Letter of the Electricity Company to the Municipality of Sofia, No. 1286,
October 6th, 1934:

Letter of the Municipality of Sofia to the Electricity Company, No. 7584,
October 23rd, 1934.

Certificate issued by the Pernik Mines, October 24th, 1934.

Letter of the Electricity Company to the Municipality of Sofia, No. 1482,
November 15th, 1934.

Letter of the Pernik Mines to the Municipality of Sofia, No. 28942,
November 15th, 1934.

Letter of the Municipality of Sofia to the Electricity Company, No. 8599,
November 2oth, 1934.

Letter of the Electricity Company to the Municipality of Sofia, No. 1531,
November 26th, 1934. |

Letter of the Pernik Mines to the Electricity Company, No. 30460,
November 26th, 1934. -

Tariff of the Pernik Mines, December 3rd, 1934.

Note presented at a plenary meeting of the Municipality of Sofia, Novem-
ber 30th, 1934.

Letter of the Electricity Company to the Municipality of Sofia, No. 1599,
December roth, 1934.

Convention of December 1934 fixing the tariff for the year 1935.

Letter of the Electricity Company to the Municipality of Sofia, No. 1659,
October 29th, 1935.

Letter of the Municipality of Sofia to the Electricity Company, No. 12651,
December 13th, 1935.

Letter of the Electricity Company to the Municipality of Sofia, No. 1958,
December 30th, 1935.

Letter of the Electricity Company to the Municipality of Sofia, No. 80,
January 27th, 1936.

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A./B. 77.—THE ELECTRICITY COMPANY OF SOFIA 153

Letter of the Municipality of Sofia to the Electricity Company, No. 824,
January 31st, ‘1936.

Letter of the Municipality of Sofia to the Electricity Company, No. 37,
January zotb, 1936.

Letter of the Electricity Company to the Municipality of Sofia, No. 91,
February ist, 1936. |

Letter of the Municipality of Sofia to the Electricity Company, No. 130,
February 3rd, 1936. °

Note verbale No. 840/1456, October ‘26th, 1935, from the Belgian Minister
in Sofia to the Ministry for Foreign Affairs and’ Public Worship. .
Aide-mémoive No. 840/1457, October 27th, 1935, annexed to the mote
verbale No. 840/1456.

Note verbale No. 840/117, January 27th, 1936, from the Belgian Legation
in Sofia to the Ministry for Foreign Affairs and, Public Worship.

Note verbale No. 840/125, January 28th, 1936, from the Belgian Legation
at Sofia to the Ministry for Foreign Affairs and Public Worship.

Note verbale No. 840/141, February 6th, 1936, from the Belgian Legation
in Sofia to the Ministry for Foreign Affairs and Public Worship.

Note verbale No. 4714-49-II, February 18th, 1936, from the Ministry for
Foreign Affairs and Public Worship to the Belgian Legation in Sofia.
Note verbale No. 12438-23-II, May 14th, 1936, from the Ministry for
Foreign Affairs and Public Worship to the Belgian Legation in Sofia.
Award of the Mixed Arbitral Tribunal of December z9th, 1936.

Claim of the Municipality of Sofia against the Electricity Company
brought before the Regional Court of Sofia.

Answer of the Electricity Company, March 14th, 1936.

Decision of the Regional Court concerning the admission of evidence.
Judgment of the Regional Court of Sofia upon the objection to the
jurisdiction, May 26th, 1936.

Judgment of the Regional Court of Sofia of October 24th, 1936.

Appeal of the Electricity Company, January 2nd, 1937.

Judgment of the Court of Appeal of Sofia, March 27th, 1937.
Communiqué issued by the Mayor (March 28th, 1937) and published in
the Sofia daily papers the day following the delivery of the Court of
Appeal’s judgment and on the eve of the elections.

Letter of the Electricity Company to the Municipality of Sofia, No. 475,
April 28th, 1937.

Certificate drawn up by the officials of the Electricity Company and of
the Municipality respecting the restoration of the supply of current to
customers (April z9th, 1937).

Letter of the Municipality of Sofia to the Electricity Company, No. 2811,
April 29th, 1937.

Letter of the Electricity Company to the Municipality of Sofia, No. 493,
May 5th, 1937.

Law regarding income tax of February 3rd, 1936 (extracts).

Circular No. 3800 of February 28th, 1936, of the Ministry of Finance.
Law amending and supplementing the law of February 3rd, 1936, regard-
ing income tax.

Letter of the Electricity Company to the Minister of Finance, May 18th,
1936. : |

Letter of the Belgian Minister in Sofia to M. Kiosseivanoff, President of
the Council, No. 840/961, June 24th, 1937.

Letter of the Belgian Minister in Sofia to M. Kiosseivanoff, President of
the Council, No. 1144, July 30th, 1937.

Letter of the Minister for Foreign Affairs and Public Worship to the
Belgian Minister in Sofia, No. 19179-46-II,. August 3rd, 1937.

Letter of the Belgian Minister in Sofia to M. Kiosseivanoff, President of
the Council, No. 1163, August 3rd, 1937.

Appeal of the Electricity Company to the Court of Cassation, June 23rd,
1937.

93
NH

Io.

A./B. 77.—THE ELECTRICITY COMPANY OF SOFIA 154

Judgment of the High Court of Cassation of Sofia, March 16th, 1938.
Decree Law of March 13th, 1938, respecting the regulation of relations
between consumers of electric current and the Electricity Company.
Certificate issued by the Pernik Mines, June rith, 1936.

Certificate issued by the Pernik Mines, March 17th, 1937.

Regulations concerning the creation of Compensation Offices attached to
Chambers of Commerce.

Bulletin No. 891 (Dec. 25th, 1936) of the Sofia Chamber of Commerce
and Industry.

Letter of the National Bank of Bulgaria, No. 28900, November 26th,
1936. .

Letter of the National Bank of Bulgaria, No. 33327, January 4th, 1937.
Judgment No. 133, February 5th, 1937, of the High Administrative Court.
Various laws concerning excise duties.

Regulations concerning the method of assessment and collection of excise
duty on electric current used for lighting (Sept. 16th, 1914).

Letter of the Municipality of Sofia to the Electricity Company, No. 2044,
May 26th, 1928.

Letter of the Electricity Company to the Municipality of Sofia, No. 1197,
May 29th, 1928.

Letter of the Municipality of Sofia to the Electricity Company, No. 2110,
June ist, 1928. |

Letter of the Electricity Company to the Municipality of Sofia, No. 1300,
June 8th, 1928.

Letter of the Electricity Company to the Municipality of Sofia, No. 1616,
July 18th, 1928.

Letter of the Municipality of Sofia to the Electricity Company, No. 3536,
July 24th, 1928.

Letter of the Municipality of Sofia to the Electricity Company, No. 10652,
November 2nd, 1935.

Extract from the Judgment of the Court of Cassation, No. 283, of
March 25th, 1926, concerning the Rodopi Company.

II.—DocuMENTs FILED ON BEHALF OF THE BULGARIAN GOVERNMENT.
A.—In the course of the written proceedings :

Judgment No. 653, October 24th, 1936, of the Regional Court of Sofia.
Judgment No. 70, March 27th, 1937, of the Court of Appeal of Sofia.
Judgment No. .177, March 16th, 1938, of the High Court of Cassation of
Sofia.

Minute of the Bulgaro-Belgian Mixed Arbitral Tribunal, October 3oth,
1930. | .
Award of the Bulgaro-Belgian Mixed Arbitral Tribunal, December 29th,
1936.

Letter No. 840/568, April 22nd, 1937, from M. Motte, Belgian Minister
in Sofia, to M. Kiosseivanoff, President of the Council of Ministers,
Minister for Foreign Affairs and Public Worship of Bulgaria.

Certificate No. 3875, June 7th, 1938, of the Bulgarian Ministry of Justice.
Bulgarian and Belgian declarations adhering to the optional clause
concerning the compulsory jurisdiction of the Permanent Court of Inter-
national Justice.

Treaty of conciliation, arbitration and judicial settlement of June 23rd,
1931, between Bulgaria and Belgium.

Letter No. 19179-46-IT, August 3rd, 1937, from M. Kiosseivanoff, Presi-
dent of the Council of Ministers, Minister for Foreign Affairs and Public
Worship of Bulgaria, to M. Motte, Belgian Minister in Sofia.

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A./B. 77.—THE ELECTRICITY COMPANY OF SOFIA 155

11. Letter No. 593, August 3rd, 1937, from M. Miankoff, Bulgarian Chargé
d’affaires ad interim in Brussels, to M. Spaak, Belgian Minister for

Foreign Affairs and Foreign Trade.

Letter No. 452/1-438/5406, August 3rd, 1937, from the Belgian Ministry

for Foreign Affairs and Foreign Trade to M. Miankoff, Bulgarian Chargé

d'affaires ad interim in Brussels.

12.

B.—In the course of the oval proceedings :
— Collection of contracts between the Municipality of Sofia and the conces-

sionaires for the supply of electric power and for the Sofia tramways.
(Bulgarian and French texts. Sofia, 1930.)

95