COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS
ET ORDONNANCES

1974

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS
AND ORDERS

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

FISHERIES JURISDICTION CASE

(UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND vy. ICELAND)

MERITS

JUDGMENT OF 25 JULY 1974

1974

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA COMPETENCE
EN MATIERE DE PECHERIES

(ROYAUME-UNI DE GRANDE-BRETAGNE ET
D'IRLANDE DU NORD c. ISLANDE)

FOND

ARRET DU 25 JUILLET 1974
Official citation:

Fisheries Jurisdiction (United Kingdom v. Iceland),
Merits, Judgment, I.C.J. Reports 1974, p. 3.

Mode officiel de citation:

Compétence en matière de pêcheries ( Royaume-Uni
c. Islande), fond, arrêt, C.L.J. Recueil 1974, p. 3.

Nedevente: 395

25 JULY 1974

JUDGMENT

FISHERIES JURISDICTION CASE

(UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND v. ICELAND)

MERITS

AFFAIRE DE LA COMPETENCE
EN MATIERE DE PECHERIES

(ROYAUME-UNI DE GRANDE-BRETAGNE ET
D'IRLANDE DU NORD c. ISLANDE)

FOND

25 JUILLET 1974
ARRET
1974
25 July
General List
No. 55

INTERNATIONAL COURT OF JUSTICE

YEAR 1974

25 July 1974

FISHERIES JURISDICTION CASE

(UNITED KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND y. ICELAND)

MERITS

Failure of Party to appear—Statute, Article 53.
History of the dispute—Interpretation of interim agreement pending settle-
ment of substantive dispute-—Effect on obligation of Court to give judgment.

Jurisdiction of the Court—Effect of previous finding of jurisdiction—Inter-
pretation of compromissory clause.

Icelandic Regulations of 14 July 1972—Extension by coastal State of fisheries
jurisdiction to 50 miles from baselines round coast—Extension challenged as
contrary to international law—Law of the sea—Geneva Conferences of 1958
and 1960-— Concepts of fishery zone and preferential rights of coastal State in
situation of special dependence on coastal fisheries—State practice—Excep-
tional dependence of Iceland on fisheries—Conservation needs—Preferential
rights no justification for claim to extinguish concurrent rights of other fishing
States—Historic rights of United Kingdom—Regulations of 14 July 1972 not
opposable to United Kingdom—Reconciliation of preferential rights of coastal
State and rights of other fishing States—Obligation to keep conserva-
tion measures of fishery resources under review—Negotiation required for
equitable solution—Obligation to negotiate fiowing from nature of Parties’
respective rights— Various factors relevant to the negotiation,

JUDGMENT

Present: President LACHS; Judges FORSTER, GROS, BENGZON, PETREN,
ONYEAMA, DILLARD, IGNACIO-PINTO, DE CASTRO, Morozov,
JIMENEZ DE ARECHAGA, Sir Humphrey WALDOCK, NAGENDRA SINGH,
RUDA; Registrar AQUARONE.
4 FISHERIES JURISDICTION (JUDGMENT)

In the Fisheries Jurisdiction case,
between

the United Kingdom of Great Britain and Northern Ireland,
represented by

Mr. D. H. Anderson, Legal Counsellor in the Foreign and Commonwealth
Office,

as Agent,
assisted by

the Rt. Hon. Samuel Silkin Esq., QC, MP, Attorney-General,

Mr. G. Slynn, Junior Counsel to the Treasury,

Mr. J. L. Simpson, CMG, TD, Member of the English Bar,

Professor D. H. N. Johnson, Professor of International and Air Law in the
University of London, Member of the English Bar,

Mr. P. G. Langdon-Davies, Member of the English Bar,

Dr. D. W. Bowett, President of Queens’ College, Cambridge, Member of
the English Bar,

as Counsel,

and by

Mr. J. Graham, Fisheries Secretary, Ministry of Agriculture, Fisheries and
Food,

Mr. M. G. de Winton, CBE, MC, Assistant Solicitor, Law Officers’
Department,

Mr. G. W. P. Hart, Second Secretary, Foreign and Commonwealth Office,

as Advisers,
and

the Republic of Iceland,

THE Court,
composed as above,

delivers the following Judgment:

1. By a letter of 14 April 1972, received in the Registry of the Court the
same day, the Chargé d'Affaires of the British Embassy in the Netherlands
transmitted to the Registrar an Application instituting proceedings against
the Republic of Iceland in respect of a dispute concerning the then proposed
extension by the Government of Iceland of its fisheries jurisdiction.

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

3. By a letter dated 29 May 1972 from the Minister for Foreign Affairs of
Iceland, received in the Registry on 31 May 1972, the Court was informed
(inter alia) that the Government of Iceland was not willing to confer jurisdic-
tion on the Court and would not appoint an Agent.

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5 FISHERIES JURISDICTION (JUDGMENT)

4. On 19 July 1972, the Agent of the United Kingdom filed in the Registry
of the Court a request for the indication of interim measures of protection
under Article 41 of the Statute and Article 61 of the Rules of Court adopted
on 6 May 1946. By an Order dated 17 August 1972, the Court indicated
certain interim measures of protection in the case; and by a further Order
dated 12 July 1973, the Court confirmed that those measures should, subject
as therein mentioned, remain operative until the Court has given final judg-
ment in the case. By a letter of 21 November 1973, the Agent of the United
Kingdom informed the Court, with reference to the Orders of 17 August 1972
and 12 July 1973, of the conclusion on 13 November 1973 of an Exchange of
Notes constituting an interim agreement ‘‘relating to fisheries in the disputed
area, pending a settlement of the substantive dispute and without prejudice to
the legal position or rights of either government in relation thereto”. Copies
of the Exchange of Notes were enclosed with the letter. A further copy was
communicated to the Court by the Minister for Foreign Affairs of Iceland
under cover of a letter dated 11 January 1974. The Exchange of Notes was
registered with the United Nations Secretariat under Article 102 of the
Charter of the United Nations.

5. By an Order dated 18 August 1972, the Court, considering that it was
necessary to resolve first of all the question of its jurisdiction in the case,
decided that the first pleadings should be addressed to the question of the
jurisdiction of the Court to entertain the dispute, and fixed time-limits for the
filing of a Memorial by the Government of the United Kingdom and a
Counter-Memorial by the Government of Iceland. The Memorial of the
Government of the United Kingdom was filed within the time-limit pre-
scribed, and was communicated to the Government of Iceland; no Counter-
Memorial was filed by the Government of Iceland. On 5 January 1973, after
due notice to the Parties, a public hearing was held in the course of which the
Court heard the oral argument of counsel for the United Kingdom on the
question of the Court’s jurisdiction; the Government of Iceland was not
represented at the hearing.

6. By a Judgment dated 2 February 1973, the Court found that it had
jurisdiction to entertain the Application filed by the United Kingdom and to
deal with the merits of the dispute.

7. By an Order dated 15 February 1973 the Court fixed time-limits for the
written proceedings on the merits, namely | August 1973 for the Memorial of
the Government of the United Kingdom and 15 January 1974 for the Count-
er-Memorial of the Government of Iceland. The Memorial of the Government
of the United Kingdom was filed within the time-limit prescribed, and was
communicated to the Government of Iceland; no Counter-Memorial was
filed by the Government of Iceland.

8. By a letter from the Registrar dated 17 August 1973 the Agent of the
United Kingdom was invited to submit to the Court any observations which
the Government of the United Kingdom might wish to present on the question
of the possible joinder of this case with the case instituted on 5 June 1972 by
the Federal Republic of Germany against the Republic of Iceland (General
List No. 56), and the Agent was informed that the Court had fixed 30 Sep-
tember 1973 as the time-limit within which any such observations should be
filed. By a letter dated 26 September 1973, the Agent of the United Kingdom
submitted the observations of his Government on the question of the possible
joinder of the two Fisheries Jurisdiction cases. The Government of Iceland
was informed that the observations of the United Kingdom on possible

6
6 FISHERIES JURISDICTION (JUDGMENT)

joinder had been invited, but did not make any comments to the Court. On
17 January 1974 the Court decided by nine votes to five not to join the present
proceedings to those instituted by the Federal Republic of Germany against
the Republic of Iceland. In reaching this decision the Court took into account
the fact that while the basic legal issues in each case appeared to be identical,
there were differences between the positions of the two Applicants, and be-
tween their respective submissions, and that joinder would be contrary to the
wishes of the two Applicants. The Court decided to hold the public hearings
in the two cases immediately following each other.

9. On 25 and 29 March 1974, after due notice to the Parties, public hearings
were held in the course of which the Court heard the oral argument of counsel
for the United Kingdom on the merits of the case; the Government of Iceland
was not represented at the hearings. Various Members of the Court addressed
questions to the Agent of the United Kingdom both during the course of the
hearings and subsequently, and replies were given either orally at the hearings
or in writing. Copies of the verbatim record of the hearings and of the written
questions and replies were transmitted to the Government of Iceland.

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

11. In the course of the written proceedings, the following submissions
were presented on behalf of the Government of the United Kingdom:

in the Application:

“The United Kingdom asks the Court to adjudge and declare:

(a) That there is no foundation in international law for the claim by
Iceland to be entitled to extend its fisheries jurisdiction by estab-
lishing a zone of exclusive fisheries jurisdiction extending to 50
nautical miles from the baselines hereinbefore referred to; and that
its claim is therefore invalid; and

(b) that questions concerning the conservation of fish stocks in the
waters around Iceland are not susceptible in international law to
regulation by the unilateral extension by Iceland of its exclusive
fisheries jurisdiction to 50 nautical miles from the aforesaid base-
lines but 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 Fish-
eries 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.”
FISHERIES JURISDICTION (JUDGMENT)

in the Memorial on the merits:

66

. the Government of the United Kingdom submit to the Court that

the Court should adjudge and declare:

(a)

(b)

(c)

(d)

(e)

that the claim by Iceland to be entitled to a zone of exclusive fisheries
jurisdiction extending 50 nautical miles from baselines around the
coast of Iceland is without foundation in international law and is
invalid;

that, as against the United Kingdom, Iceland is not entitled uni-
laterally to assert an exclusive fisheries jurisdiction beyond the limits
agreed to in the Exchange of Notes of 1961;

that Iceland is not entitled unilaterally to exclude British fishing
vessels from the area of the high seas beyond the limits agreed to in
the Exchange of Notes of 1961 or unilaterally to impose restrictions
on the activities of such vessels in that area;

that activities by the Government of Iceland such as are referred to
in Part V of this Memorial, that is to say, interference by force or
the threat of force with British fishing vessels operating in the said
area of the high seas, are unlawful and that Iceland is under an
obligation to make compensation therefor to the United Kingdom
(the form and amount of such compensation to be assessed, failing
agreement between the Parties, in such manner as the Court may
indicate); and

that, to the extent that a need is asserted on conservation grounds,
supported by properly attested scientific evidence, for the introduc-
tion of restrictions on fishing activities in the said area of the high
seas, Iceland and the United Kingdom are under a duty to examine
together in good faith (either bilaterally or together with other
interested States and either by new arrangements or through already
existing machinery for international collaboration in these matters
such as the North-East Atlantic Fisheries Commission) the existence
and extent of that need and similarly to negotiate for the establish-
ment of such a régime for the fisheries of the area as, having due
regard to the interests of other States, will ensure for Iceland, in
respect of any such restrictions that are shown to be needed as
aforesaid, a preferential position consistent with its position as a
State specially dependent on those fisheries and as will also ensure
for the United Kingdom a position consistent with its traditional
interest and acquired rights in and current dependency on those
fisheries.”

12. At the hearing of 25 March 1974, the Court was informed that, in view
of the conclusion of the interim agreement constituted by the Exchange of
Notes of 13 November 1973 referred to above, the Government of the United
Kingdom had decided not to pursue submission {d) in the Memorial. At the
close of the oral proceedings, written submissions were filed in the Registry
of the Court on behalf of the Government of the United Kingdom; these sub-
missions were identical to those contained in the Memorial, and set out above,
save for the omission of submission (d) and the consequent re-lettering of
submission (e) as (d).

8
8 FISHERIES JURISDICTION (JUDGMENT)

13. No pleadings were filed by the Government of Iceland, which was also
not represented at the oral proceedings, and no submissions were therefore
presented on its behalf. The attitude of that Government was however defined
in the above-mentioned letter of 29 May 1972 from the Minister for Foreign
Affairs of Iceland, namely that there was on 14 April 1972 (the date on which
the Application was filed) no basis under the Statute for the Court to exercise
jurisdiction in the case, and that the Government of Iceland was not willing to
confer jurisdiction on the Court. After the Court had decided, by its Judgment
of 2 February 1973, that it had jurisdiction to deal with the merits of the
dispute, the Minister for Foreign Affairs of Iceland, by letter dated If January
1974, informed the Court that:

“With reference to the time-limit fixed by the Court for the submission
of Counter-Memorials by the Government of Iceland, I have the honour
to inform you that the position of the Government of Iceland with
regard to the proceedings in question remains unchanged and, conse-
quently, no Counter-Memorials will be submitted. At the same time, the
Government of Iceland does not accept or acquiesce in any of the state-
ments of facts or allegations or contentions of law contained in the
Memorials filed by the Parties concerned.”

14. Iceland has not taken part in any phase of the present proceedings.
By the above-mentioned letter of 29 May 1972, the Government of Ice-
land informed the Court that it regarded the Exchange of Notes between
the Government of Iceland and the Government of the United Kingdom
dated 11 March 1961 as terminated; that in its view there was no basis
under the Statute for the Court to exercise jurisdiction in the case; that,
as it considered the vital interests of the people of Iceland to be involved,
it was not willing to confer jurisdiction on the Court in any case involving
the extent of the fishery limits of Iceland; and that an agent would not
be appointed to represent the Government of Iceland. Thereafter, the
Government of Iceland did not appear before the Court at the public
hearing held on | August 1972 concerning the United Kingdom’s request
for the indication of interim measures of protection; nor did it file any
pleadings or appear before the Court in the subsequent proceedings
concerning the Court's jurisdiction to entertain the dispute. Notwith-
standing the Court’s Judgment of 2 February 1973, in which the Court
decided that it has jurisdiction to entertain the United Kingdom’s Appli-
cation and to deal with the merits of the dispute, the Government of
Iceland maintained the same position with regard to the subsequent
proceedings. By its letter of 11 January 1974, it informed the Court that
no Counter-Memorial would be submitted. Nor did it in fact file any
pleading or appear before the Court at the public hearings on the merits
of the dispute. At these hearings, counsel for the United Kingdom, having

9
9 FISHERIES JURISDICTION (JUDGMENT)

drawn attention to the non-appearance in Court of any representative of
the Respondent, referred to Article 53 of the Statute, and concluded by
presenting the final submissions of the United Kingdom on the merits
of the dispute for adjudication by the Court.

15. The Court is thus confronted with the situation contemplated by
Article 53, paragraph 1, of the Statute, that ‘ Whenever one of the parties
does not appear before the Court, or fails to defend its case, the other
party may call upon the Court to decide in favour of its claim”. Paragraph
2 of that Article, however, also provides: ‘‘The Court must, before doing
so, satisfy itself, not only that it has jurisdiction in accordance with
Articles 36 and 37, but also that the claim is well founded in fact and
law.”

16. The present case turns essentially on questions of international
law, and the facts requiring the Court’s consideration in adjudicating
upon the Applicant’s claim either are not in dispute or are attested by
documentary evidence. Such evidence emanates in part from the Govern-
ment of Iceland, and has not been specifically contested, and there does
not appear to be any reason to doubt its accuracy. The Government of
Iceland, it is true, declared in its above-mentioned letter of 11 January
1974 that “it did not accept or acquiesce in any of the statements of fact
or allegations or contentions of law contained in the Memorials of the
Parties concerned”’ (emphasis added). But such a general declaration of
non-acceptance and non-acquiescence cannot suffice to bring into ques-
tion facts which appear to be established by documentary evidence, nor
can it change the position of the applicant Party, or of the Court, which
remains bound to apply the provisions of Article 53 of the Statute.

17. lt is to be regretted that the Government of Iceland has failed to
appear in order to plead its objections or to make its observations against
the Applicant’s arguments and contentions in law. The Court however,
as an international judicial organ, is deemed to take judicial notice of
international law, and is therefore required in a case falling under
Article 53 of the Statute, as in any other case, to consider on its own
initiative all rules of international law which may be relevant to the
settlement of the dispute. It being the duty of the Court itself to ascertain
and apply the relevant law in the given circumstances of the case, the
burden of establishing or proving rules of international law cannot be
imposed upon any of the parties, for the law lies within the judicial
knowledge of the Court. In ascertaining the law applicable in the present
case the Court has had cognizance not only of the legal arguments
submitted to it by the Applicant but also of those contained in various
communications addressed to it by the Government of Iceland, and in
documents presented to the Court. The Court has thus taken account of
the legal position of each Party. Moreover, the Court has been assisted
by the answers given by the Applicant, both orally and in writing, to
questions asked by Members of the Court during the oral proceedings or
immediately thereafter. It should be stressed that in applying Article 53

10
10 FISHERIES JURISDICTION (JUDGMENT)

of the Statute in this case, the Court has acted with particular circum-
spection and has taken special care, being faced with the absence of the
respondent State.

18. Accordingly, for the purposes of Article 53 of the Statute, the
Court considers that it has before it the elements necessary to enable it
to determine whether the Applicant’s claim is, or is not, well founded
in.fact and law, and it is now called upon to do so. However, before
proceeding further the Court considers it necessary to recapitulate
briefly the history of the present dispute.

ok
* *

19. In 1948 the Althing (the Parliament of Iceland) passed a law
entitled ‘‘Law concerning the Scientific Conservation of the Continental
Shelf Fisheries” containing, inter alia, the following provisions:

“Article 1

The Ministry of Fisheries shall issue regulations establishing
explicitly bounded conservation zones within the limits of the con-
tinental shelf of Iceland; wherein all fisheries shall be subject 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 1 of the present law
shall be enforced only to the extent compatible with agreements with
other countries to which Iceland is or may become a party.”

20. The 1948 Law was explained by the Icelandic Government in its
exposé des motifs submitting the Law to the Althing, in which, inter alia,
it stated:

“It is well known that the economy of Iceland depends almost
entirely on fishing in the vicinity of its coasts. For this reason, the
population of Iceland has followed the progressive impoverishment
of fishing grounds with anxiety. Formerly, when fishing equipment
was far less efficient than it is today, the question appeared in a
different light, and the right of providing for exclusive rights of
fishing by Iceland itself in the vicinity of her coasts extended much
further than is admitted by the practice generally adopted since
1900. It seems obvious, however, that measures to protect fisheries
ought to be extended in proportion to the growing efficiency of
fishing equipment.

11
11 FISHERIES JURISDICTION (JUDGMENT)

In so far as the jurisdiction of States over fishing grounds is
concerned, two methods have been adopted. Certain States have
proceeded to a determination of their territorial waters, especially
for fishing purposes. Others, on the other hand, have left the question
of the territorial waters in abeyance and have contented themselves
with asserting their exclusive right over fisheries, independently of
territorial waters. Of these two methods, the second seems to be the
more natural, having regard to the fact that certain considerations
arising from the concept of ‘territorial waters’ have no bearing upon
the question of an exclusive right to fishing, and that there are
therefore serious drawbacks in considering the two questions to-
gether.”

21. Commenting upon Article 2 of the 1948 Law, the exposé des motifs
referred to the Anglo-Danish Convention of 1901, which applied to the
fisheries in the waters around Iceland and established a 3-mile limit for
the exclusive right of fishery. This Convention, which was subject to
termination by either party on giving two years’ notice, was mentioned
as one of the international agreements with which any regulations issued
under the Law would have to be compatible so long as the Convention
remained in force. In the following year, on 3 October 1949, the Govern-
ment of Iceland gave notice of the denunciation of the Convention, with
the result that it ceased to be in force after the expiry of the prescribed
two-year period of notice on 3 October 1951. Furthermore, during that
interval this Court had handed down its Judgment in the Fisheries case
(.C.J. Reports 1951, p. 116) between the United Kingdom and Norway,
in which it had endorsed the validity of the system of straight baselines
applied by Norway off the Norwegian coast. Early in 1952, Iceland
informed the United Kingdom of its intention to issue new fishery regula-
tions in accordance with the 1948 Law. Then, on 19 March of that year,
Iceland issued Regulations providing for a fishery zone whose outer limit
was to be a line drawn 4 miles to seaward of straight baselines traced
along the outermost points of the coasts, islands and rocks and across
the opening of bays, and prohibiting all foreign fishing activities within
that zone.

22. The 1952 Fisheries Regulations met with protests from the United
Kingdom, regarding Iceland’s claim to a 4-mile limit and certain features
of its straight-baseline system, which the United Kingdom considered to
go beyond the principles endorsed by the Court in the Fisheries case. After
various attempts to resolve the dispute, a modus vivendi was reached in
1956 under which there was to be no further extension of Iceland’s
fishery limits pending discussion by the United Nations General Assembly
in that year of the Report of the International Law Commission on the
Law of the Sea. This discussion resulted in the convening at Geneva in
1958 of the first United Nations Conference on the Law of the Sea.

12
12 FISHERIES JURISDICTION (JUDGMENT)

23. The 1958 Conference, having failed to reach agreement either on
the limit of the territorial sea or on the zone of exclusive fisheries, adopted
a resolution requesting the General Assembly to study the advisability
of convening a second Law of the Sea Conference specifically to deal
with these questions. After the conclusion of the 1958 Conference, Iceland
made on 1 June 1958 a preliminary announcement of its intention to
reserve the right of fishing within an area of 12 miles from the baselines
exclusively to Icelandic fishermen, and to extend the fishing zone also by
modification of the baselines, and then on 30 June 1958 issued new
“Regulations concerning the Fisheries Limits off Iceland”. Article 1 of
these proclaimed a new 12-mile fishery limit around Iceland drawn from
new baselines defined in that Article, and Article 2 prohibited all fishing
activities by foreign vessels within the new fishery limit. Article 7 of the
Regulations expressly stated that they were promulgated in accordance
with the Law of 1948 concerning Scientific Conservation of the Continen-
tal Shelf Fisheries.

24. The United Kingdom did not accept the validity of the new
Regulations, and its fishing vessels continued to fish inside the 12-mile
limit, with the result that a number of incidents occurred on the fishing
grounds. Various attempts were made to settle the dispute by negotiation
but the dispute remained unresolved. On 5 May 1959 the Althing passed
a resolution on the matter in which, inter alia, it said:

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

The Resolution thus stressed that the 12-mile limit asserted in the 1958
Regulations was merely a further step in Iceland’s progress towards its
objective of a fishery zone extending over the whole of the continental
shelf area.

25. After the Second United Nations Conference on the Law of the
Sea, in 1960, the United Kingdom and Iceland embarked on a series of
negotiations with a view to resolving their differences regarding the 12-
mile fishery limits and baselines claimed by Iceland in its 1958 Regula-
tions. According to the records of the negotiations which were drawn
up by and have been brought to the Court’s attention by the Applicant,
the Icelandic representatives in their opening statement called attention
to the proposals submitted to the 1960 Conference on the Law of the
Sea concerning preferential rights and to the widespread support these
proposals had received, and asserted that Iceland, as a country in a
special situation, ‘‘should receive preferential treatment even beyond 12

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13 FISHERIES JURISDICTION (JUDGMENT)

miles”. Fishery conservation measures outside the 12-mile limit, including
the reservation of areas for Icelandic fishing, were discussed, but while the
United Kingdom representatives recognized that “Iceland is a ‘special
situation’ country”, no agreement was reached regarding fisheries outside
the 12-mile limit. In these discussions, the United Kingdom insisted upon
receiving an assurance concerning the future extension of Iceland’s
fishery jurisdiction and a compromissory clause was then included in the
Exchange of Notes which was agreed upon by the Parties on 11 March
1961.

26. The substantive provisions of the settlement, which were set out
in the principal Note addressed by the Government of Iceland to the
Government of the United Kingdom, were as follows:

(1) The United Kingdom would no longer object to a 12-mile fishery
zone around Iceland measured from the baselines accepted solely for
the purpose of the delimitation of that zone.

(2) The United Kingdom accepted for that purpose the baselines set out
in the 1958 Regulations subject to the modification of four specified
points.

(3) For a period of three years from the date of the Exchange of Notes,
Iceland would not object to United Kingdom vessels fishing within
certain specified areas and during certain stated months of the year.

(4) During that three-year period, however, United Kingdom vessels
would not fish within the outer 6 miles of the 12-mile zone in seven
specified areas.

(5) Iceland “will continue to work for the implementation of the Althing
Resolution of May 5, 1959, regarding the extension of fisheries juris-
diction 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”.

In its Note in reply the United Kingdom emphasized that:

+e

. in view of the exceptional dependence of the Icelandic nation
upon coastal fisheries for their livelihood and economic develop-
ment, 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”’.

27. On 14 July 1971 the Government of Iceland issued a policy state-
ment in which, inter alia, it was said:

14
14 FISHERIES JURISDICTION (JUDGMENT)

“That the agreements on fisheries jurisdiction with the British
and the West Germans be terminated and that a decision be taken
on the extension of fisheries jurisdiction to 50 nautical miles from
base lines, and that this extension become effective not later than
September Ist, 1972.”

This led the Government of the United Kingdon, in an aide-mémoire of
17 July 1971, to draw the attention of Iceland to the terms of the 1961
Exchange of Notes regarding the right of either Party to refer to the
Court any extension of Iceland’s fishery limits. While reserving all its
rights, the United Kingdom emphasized that the Exchange of Notes
was not open to unilateral denunciation or termination. This prompted
discussions between the two countries in which no agreement was
reached; in an aide-mémoire of 31 August 1971 Iceland stated that it
considered the object and purpose of the provision for recourse to judicial
settlement to have been fully achieved; and that it now found it essential
to extend further the zone of exclusive fisheries jurisdiction around its
coasts to include the areas of the sea covering the continental shelf.
Iceland further added that the new limits, the precise boundaries of which
would be furnished at a later date, would enter into force not later than
1 September 1972; and that it was prepared to hold further meetings ‘‘for
the purpose of achieving a practical solution of the problems involved”’.

28. The United Kingdom replied on 27 September 1971 and placed
formally on record its view that “such an extension of the fishery zone
around Iceland would have no basis in international law’’. It then con-
troverted Iceland’s proposition that the object and purpose of the provi-
sion for recourse to judicial settlement of disputes relating to an extension
of fisheries jurisdiction had been fully achieved, and again reserved all
its rights under that provision. At the same time, however, the United
Kingdom expressed its willingness, without prejudice to its legal position,
to enter into further exploratory discussions. In November 1971 the
United Kingdom and Iceland held discussions. At these talks, the British
delegation stated their view that Iceland’s objectives could be achieved by
a catch-limitation agreement. In further talks which took piace in January
1972 the United Kingdom expressed its readiness to negotiate any
arrangements for the limitation of catches that scientific evidence might
show to be necessary, and in which any preferential requirements of the
coastal State resulting from its dependence on fisheries would be recog-
nized. It further proposed, as an interim measure pending the elaboration
of a multilateral arrangement, to limit its annual catch of demersal fish
in Icelandic waters to 185,000 tons. The Icelandic Government was not,
however, prepared to negotiate further on this basis.

29. On 15 February 1972 the Althing adopted a Resolution reiterating
the fundamental policy of the Icelandic people that the continental shelf

15
15 FISHERIES JURISDICTION (JUDGMENT)

of Iceland and the superjacent waters were within the jurisdiction of Ice-
land. While repeating that the provisions of the Exchange of Notes of
1961 no longer constituted an obligation for Iceland, it resolved, inter
alia:

“1. That the fishery limits will be extended to 50 miles from base-lines
around the country, to become effective not later than | September
1972.

3. That efforts to reach a solution of the problems connected with
the extension be continued through discussions with the Govern-
ments of the United Kingdom and the Federal Republic of
Germany.

4, That effective supervision of the fish stocks in the Iceland area be
continued in consultation with marine biologists and that the
necessary measures be taken for the protection of the fish stocks
and specified areas in order to prevent over-fishing . . .”

Jn an aide-mémoire of 24 February 1972 Iceland’s Minister for Foreign
Affairs formally notified the United Kingdom Ambassador in Reykjavik
of his Government’s intention to proceed in accordance with this Resolu-
tion.

30. On 14 March 1972, the United Kingdom in an aide-mémoire took
note of the decision of Iceland to issue new Regulations, reiterated its
view that ‘‘such an extension of the fishery zone around Iceland would
have no basis in international law”, and rejected Iceland’s contention
that the Exchange of Notes was no longer in force. Moreover, formal
notice was also given by the United Kingdom that an application would
shortly be made to the Court in accordance with the Exchange of Notes;
the British Government was however willing to continue discussions
with Iceland ‘tin order to agree satisfactory practical arrangements for
the period while the case is before the International Court of Justice”.
On 14 April 1972, the United Kingdom filed in the Registry its Applica-
tion bringing the present case before the Court.

31. A series of negotiations between representatives of the two coun-
tries soon followed and continued throughout May, June and July 1972,
in the course of which various proposals for catch-limitation, fishing-
effort limitation, area or seasonal restrictions for United Kingdom
vessels were discussed, in the hope of arriving at practical arrangements
for an interim régime pending the settlement of the dispute. By 12 July
there was still no agreement on such an interim régime, and the Icelandic
delegation announced that new Regulations would be issued on 14 July
1972 which would exclude all foreign vessels from fishing within the
50-mile limit after 1 September 1972. The United Kingdom delegation
replied that, while ready to continue the discussions for an interim régime,
they reserved the United Kingdom’s rights in areas outside the 12-mile

16
16 FISHERIES JURISDICTION (JUDGMENT)

limit and would seek an Order for interim measures of protection from
the Court. The new Regulations, issued on 14 July 1972, extended Ice-
land’s fishery limits to 50 miles as from 1 September 1972 and, by Article
2, prohibited all fishing activities by foreign vessels inside those limits.
Consequently, on 19 July 1972, the United Kingdom filed its request for
the indication of interim measures of protection.

32. On 11 August 1972 the Icelandic Foreign Ministry sent a Note to
the United Kingdom Embassy in Reykjavik, in which the Icelandic
Government renewed its interest in the recognition of its preferential
rights in the area, an issue which had already been raised in 1967 by the
Icelandic delegation to the North-East Atlantic Fisheries Commission.
In a memorandum presented at the Fifth Meeting of that Commission,
the Icelandic delegation had drawn attention to the need for consideration
of the total problem of limiting fishing effort in Icelandic waters by, for
example, a quota system under which the priority position of Iceland
would be respected in accordance with internationally recognized prin-
ciples regarding the preferential requirements of the coastal State where
the people were overwhelmingly dependent upon the resources involved
for their livelihood. In the Note of 11 August 1972 it was recalled that:

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

1. 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.”

Thus, while Iceland invoked preferential rights and the Applicant was
prepared to recognize them, basic differences remained as to the extent
and scope of those rights, and as to the methods for their implementation
and their enforcement. There can be little doubt that these divergences
of views were some of ‘‘the problems connected with the extension” in
respect of which the Althing Resolution of 15 February 1972 had in-
structed the Icelandic Government to make “efforts to reach a solution”.

33. On 17 August 1972 the Court made an Order for provisional
measures in which, inter alia, it indicated that, pending the Court’s final
decision in the proceedings, Iceland should refrain from taking any
measures to enforce the Regulations of 14 July 1972 against United King-
dom vessels engaged in fishing outside the 12-mile fishery zone; and that
the United Kingdom should limit the annual catch of its vessels in the
“Sea Area of Iceland” to 170,000 tons. That the United Kingdom has

17
17 FISHERIES JURISDICTION (JUDGMENT)

complied with the terms of the catch-limitation measure indicated in the
Court’s Order has not been questioned or disputed. Iceland, on the other
hand, notwithstanding the measures indicated by the Court, began to
enforce the new Regulations against United Kingdom vessels soon after
they came into effect on 1 September 1972. Moreover, when in August
1972 the United Kingdom made it clear to Iceland that in its view any
settlement between the parties of an interim régime should be compatible
with the Court’s Order, Iceland replied on 30 August that it would not
consider the Order to be binding upon it “‘since the Court has no juris-
diction in the matter”.

34. By its Judgment of 2 February 1973, the Court found that it had
jurisdiction to entertain the Application and to deal with the merits of the
dispute. However, even after the handing down of that Judgment, Iceland
persisted in its efforts to enforce the 50-mile limit against United King-
dom vessels and, as appears from the letter of 11 January 1974 addressed
to the Court by the Minister for Foreign Affairs of Iceland, mentioned
above, it has continued to deny the Court’s competence to entertain the
dispute.

35. Negotiations for an interim arrangement were, however, resumed
between the two countries, and were carried on intermittently during
1972 and 1973. In the meantime incidents on the fishing grounds involving
British and Icelandic vessels were becoming increasingly frequent, and
eventually discussions between the Prime Ministers of Iceland and the
United Kingdom in 1973 led to the conclusion of an “Interim Agreement
in the Fisheries Dispute” constituted by an Exchange of Notes dated 13
November 1973.

36. The terms of the Agreement were set out in the Icelandic Note,
which began by referring to the discussions which had taken place and
continued:

“In these discussions the following arrangements have been
worked out for an interim agreement relating to fisheries in the
disputed area, pending a settlement of the substantive dispute and
without prejudice to the legal position or rights of either Govern-
ment in relation thereto, which are based on an estimated annual
catch of about 130,000 metric tons by British vessels.”

The arrangements for the fishing activities of United Kingdom vessels in
the disputed area were then set out, followed by paragraph 7 which
stipulated:

“The agreement will run for two years from the present date. Its
18
18 FISHERIES JURISDICTION (JUDGMENT)

termination will not affect the legal position of either Government
with respect to the substantive dispute.”

The Note ended with the formal proposal, acceptance of which was
confirmed in the United Kingdom’s reply, that the Exchange of Notes
should ‘‘constitute an interim agreement between our two countries”.

37. The interim agreement contained no express reference to the
present proceedings before the Court nor any reference to any waiver,
whether by the United Kingdom or by Iceland, of any claims in respect
of the matters in dispute. On the contrary, it emphasized that it was an
interim agreement, that it related to fisheries in the disputed area, that
it was concluded pending a settlement of the substantive dispute, and that
it was without prejudice to the legal position or rights of either Govern-
ment in relation to the substantive dispute. In the light of these saving
clauses, it is clear that the dispute still continues, that its final settlement
is regarded as pending, and that the Parties meanwhile maintain their
legal rights and claims as well as their respective stands in the conflict.
The interim agreement thus cannot be described as a “‘phasing-out” agree-
ment, a term which refers to an arrangement whereby both parties consent
to the progressive extinction of the fishing rights of one of them over a
limited number of years. Nor could the interim agreement be interpreted
as constituting a bar to, or setting up any limitation on, the pursuit by
the Applicant of its claim before the Court. On the face of the text, it
was not intended to affect the legal position or rights of either country in
relation to the present proceedings. That this was the United Kingdom’s
understanding of the interim agreement is confirmed by a statement
made by the British Prime Minister in the House of Commons on the date
of its conclusion: “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.” The Government of Iceland for its part, in the letter of
11 January 1974 already referred to, stated that:

“This agreement is in further implementation of the policy of the
Government of Iceland to solve the practical difficulties of the
British trawling industry arising out of the application of the 1948
Law and the Althing Resolution of 14 February 1972, by providing
an adjustment during the next two years. It also contributes to the
reduction of tension which has been provoked by the presence of
British armed naval vessels within the fifty-mile limit.”

38. The interim agreement of 1973, unlike the 1961 Exchange of Notes,
does not describe itself as a ‘‘settlement” of the dispute, and, apart from
being of limited duration, clearly possesses the character of a provisional
arrangement adopted without prejudice to the rights of the Parties, nor
does it provide for the waiver of claims by either Party in respect of the
matters in dispute. The Applicant has not sought to withdraw or dis-
continue its proceedings. The primary duty of the Court is to discharge

19
19 FISHERIES JURISDICTION (JUDGMENT)

its judicial function and it ought not therefore to refuse to adjudicate
merely because the Parties, while maintaining their legal positions, have
entered into an agreement one of the objects of which was to prevent the
continuation of incidents. When the Court decided, by its Order of 12
July 1973, to confirm that the provisional measures in the present case
should remain operative until final judgment was given, it was aware that
negotiations had taken place between the Parties with a view to reaching
an interim arrangement, and it stated specifically that “the provisional
measures indicated by the Court and confirmed by the present Order do
not exclude an interim arrangement which may be agreed upon by the
Governments concerned...” (Fisheries Jurisdiction (United Kingdom v.
Iceland), Interim Measures, Order of 12 July 1973, I.C.J. Reports 1973,
p. 303, para. 7).

39. In response to questions put by a Member of the Court, counsel
for the United Kingdom expressed the view that the interim agreement, as
a treaty in force, regulates the relations between the two countries so far
as British fishing is concerned in the specified areas. The judgment of the
Court, the United Kingdom envisages, will state the rules of customary
international law between the Parties, defining their respective rights and
obligations, but will not completely replace with immediate effect the
interim agreement, which will remain a treaty in force. In so far as the
judgment may possibly deal with matters which are not covered in the
interim agreement, the judgment would, in the understanding of the
United Kingdom, have immediate effect; the Parties will in any event be
under a duty fully to regulate their relations in accordance with the terms
of the judgment as soon as the interim agreement ceases to be in force,
i.e., on 13 November 1975 or such earlier date as the Parties may agree.
In the view of the United Kingdom, the Court’s judgment will:

‘... constitute an authoritative statement of the rights and obliga-
tions of the parties under existing law and may provide a basis for
the negotiation of arrangements to follow those contained in the
Interim Agreement”.

40. The Court is of the view that there is no incompatibility with its
judicial function in making a pronouncement on the rights and duties
of the Parties under existing international law which would clearly be
capable of having a forward reach; this does not mean that the Court
should declare the law between the Parties as it might be at the date of
expiration of the interim agreement, a task beyond the powers of any
tribunal. The possibility of the law changing is ever present: but that
cannot relieve the Court from its obligation to render a judgment on the
basis of the law as it exists at the time of its decision. In any event it
cannot be said that the issues now before the Court have become without
object; for there is no doubt that the case is one in which ‘there exists at

20
20 FISHERIES JURISDICTION (JUDGMENT)

the time of the adjudication an actual controversy involving a conflict of
legal interests between the Parties” (Northern Cameroons, Judgment,
LC.J. Reports 1963, pp. 33-34).

41. Moreover, if the Court were to come to the conclusion that the
interim agreement prevented it from rendering judgment, or compelled
it to dismiss the Applicant’s claim as one without object, the inevitable
result would be to discourage the making of interim arrangements in
future disputes with the object of reducing friction and avoiding risk to
peace and security. This would run contrary to the purpose enshrined in
the provisions of the United Nations Charter relating to the pacific
settlement of disputes. It is because of the importance of these considera-
tions that the Court has felt it necessary to state at some length its views
on the inferences discussed above. The Court concludes that the existence
of the interim agreement ought not to lead it to refrain from pronouncing
judgment in the case.

42. The question has been raised whether the Court has jurisdiction to
pronounce upon certain matters referred to the Court in the last para-
graph of the Applicant’s final submissions (paragraphs 11 and 12 above)
to the effect that the parties are under a duty to examine together the
existence and extent of the need for restrictions of fishing activities in
Icelandic waters on conservation grounds and to negotiate for the
establishment of such a régime as will, inter alia, ensure for Iceland a
preferential position consistent with its position as a State specially
dependent on its fisheries.

43. In its Judgment of 2 February 1973, pronouncing on the juris-
diction of the Court in the present case, the Court found “that it has
jurisdiction to entertain the Application filed by the Government of the
United Kingdom of Great Britain and Northern Ireland on 14 April 1972
and to deal with the merits of the dispute” (1.C./. Reports 1973, p. 22,
para. 46). The Application which the Court found it had jurisdiction to
entertain contained a submission under letter (b) (cf. paragraph 11
above) which in its second part raised the issues of conservation of
fishery resources and of preferential fishing rights. These questions, among
others, had previously been discussed in the negotiations between the
parties referred to in paragraphs 27 to 32 above and were also extensively
examined in the pleadings and hearings on the merits.

44. The Order of the Court indicating interim measures of protection
(Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection,
Order of 17 August 1972, I.C.J. Reports 1972, p. 12) implied that the case
before the Court involved questions of fishery conservation and of
preferential fishing rights since, in indicating a catch-limitation figure for
the Applicant’s fishing, the Court stated that this measure was based on
“the exceptional dependence of the Icelandic nation upon coastal

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21 FISHERIES JURISDICTION (JUDGMENT)

fisheries” and “of the need for the conservation of fish stocks in the
Iceland area” (loc. cit., pp. 16-17, paras. 23 and 24).

45. In its Judgment of 2 February 1973, pronouncing on its juris-
diction in the case, the Court, after taking into account the aforesaid
contentions of the Applicant concerning fishery conservation and
preferential rights, referred again to “the exceptional dependence of
Iceland on its fisheries and the principle of conservation of fish stocks”
(1.C.J. Reports 1973, p. 20, para. 42). The judicial notice taken therein of
the recognition given by the Parties to the exceptional dependence of
Iceland on its fisheries and to the need of conservation of fish stocks in
the area clearly implies that such questions are before the Court.

46. The Order of the Court of 12 July 1973 on the continuance of
interim measures of protection referred again to catch limitation figures
and also to the question of ‘‘related restrictions concerning areas closed
to fishing, number and type of vessels allowed and forms of control of
the agreed provisions” (.C.J. Reports 1973, p. 303, para. 7). Thus the
Court took the view that those questions were within its competence. As
the Court stated in its Order of 17 August 1972, there must be a connec-
tion “under Article 61, paragraph 1, of the Rules between a request for
interim measures of protection and the original Application filed with
the Court” U.C.J. Reports 1972, p. 15, para. 12).

47. As to the compromissory clause in the 1961 Exchange of Notes,
this gives the Court jurisdiction with respect to ‘‘a dispute in relation to
such extension”, i.e., ‘‘the extension of fisheries jurisdiction around Ice-
land”. The present dispute was occasioned by Iceland’s unilateral exten-
sion of its fisheries jurisdiction. However, it would be too narrow an
interpretation of the compromissory clause to conclude that the Court’s
jurisdiction is limited to giving an affirmative or a negative answer to
the question of whether the extension of fisheries jurisdiction, as enacted
by Iceland on 14 July 1972, is in conformity with international law. In
the light of the negotiations between the Parties, both in 1960 (para-
graph 25 above) and in 1971-1972 (paragraphs 28 to 32 above), in which
the questions of fishery conservation measures in the area and Iceland’s
preferential fishing rights were raised and discussed, and in the light of
the proceedings before the Court, it seems evident that the dispute be-
tween the Parties includes disagreements as to the extent and scope of
their respective rights in the fishery resources and the adequacy of
measures to conserve them. It must therefore be concluded that those
disagreements are an element of the “dispute in relation to the extension
of fisheries jurisdiction around Iceland”.

48. Furthermore, the dispute before the Court must be considered in
all its aspects. Even if the Court’s competence were understood to be
confined to the question of the conformity of Iceland’s extension with the
rules of international law, it would still be necessary for the Court to

22
22 FISHERIES JURISDICTION (JUDGMENT)

determine in that context the role and function which those rules reserve
to the concept of preferential rights and that of conservation of fish
stocks. Thus, whatever conclusion the Court may reach in regard to
preferential rights and conservation measures, it is bound to examine
these questions with respect to this case. Consequently, the suggested
restriction on the Court’s competence not only cannot be read into the
terms of the compromissory clause, but would unduly encroach upon the
power of the Court to take into consideration all relevant elements in
administering justice between the Parties.

49. The Applicant has challenged the Regulations promulgated by
the Government of Iceland on 14 July 1972, and since the Court has to
pronounce on this challenge, the ascertainment of the law applicable
becomes necessary. As the Court stated in the Fisheries case:

“The delimitation of sea areas has always an international aspect;
it cannot be dependent merely upon the will of the coastal State as
expressed in its municipal law. Although it is true that the act of
delimitation is necessarily a unilateral act, because only the coastal
State is competent to undertake it, the validity of the delimitation
with regard to other States depends upon international law.” (1.C.J.
Reports 1951, p. 132.)

The Court will therefore proceed to the determination of the existing
rules of international law relevant to the settlement of the present dispute.

50. The Geneva Convention on the High Seas of 1958, which was
adopted ‘‘as generally declaratory of established principles of interna-
tional law”, defines in Article 1 the term “high seas” as ‘‘all parts of the
sea that are not included in the territorial sea or in the internal waters of a
State”. Article 2 then declares that “The high seas being open to all
nations, no State may validly purport to subject any part of them to its
sovereignty” and goes on to provide that the freedom of the high seas
comprises, inter alia, both for coastal and non-coastal States, freedom of
navigation and freedom of fishing. The freedoms of the high seas are
however made subject to the consideration that they “shall be exercised
by all States with reasonable regard to the interests of other States in
their exercise of the freedom of the high seas”.

Si. The breadth of the territorial sea was not defined by the 1958
Convention on the Territorial Sea and the Contiguous Zone. It is true
that Article 24 of this Convention limits the contiguous zone to 12 miles
“from the baseline from which the breadth of the territorial sea is
measured”. At the 1958 Conference, the main differences on the breadth

23
23 FISHERIES JURISDICTION (JUDGMENT)

of the territorial sea were limited at the time to disagreements as to what
limit, not exceeding 12 miles, was the appropriate one. The question of
the breadth of the territorial sea and that of the extent of the coastal
State’s fishery jurisdiction were left unsettled at the 1958 Conference.
These questions were referred to the Second Conference on the Law of
the Sea, held in 1960. Furthermore, the question of the extent of the
fisheries jurisdiction of the coastal State, which had constituted a serious
obstacle to the reaching of an agreement at the 1958 Conference, became
gradually separated from the notion of the tertitorial sea. This was a
development which reflected the increasing importance of fishery re-
sources for all States.

52. The 1960 Conference failed by one vote to adopt a text governing
the two questions of the breadth of the territorial sea and the extent of
fishery rights. However, after that Conference the law evolved through
the practice of States on the basis of the debates and near-agreements at
the Conference. Two concepts have crystallized as customary law in
recent years arising out of the general consensus revealed at that Con-
ference. The first is the concept of the fishery zone, the area in which a
State may claim exclusive fishery jurisdiction independently of its territo-
rial sea; the extension of that fishery zone up to a 12-mile limit from the
baselines appears now to be generally accepted. The second is the concept
of preferential rights of fishing in adjacent waters in favour of the coastal
State in a situation of special dependence on its coastal fisheries, this
preference operating in regard to other States concerned in the exploita-
tion of the same fisheries, and to be implemented in the way indicated in
paragraph 57 below.

53. In recent years the question of extending the coastal State’s
fisheries jurisdiction has come increasingly to the forefront. The Court is
aware that a number of States has asserted an extension of fishery limits.
The Court is also aware of present endeavours, pursued under the
auspices of the United Nations, to achieve in a third Conference on the
Law of the Sea the further codification and progressive development of
this branch of the law, as it is of various proposals and preparatory docu-
ments produced in this framework, which must be regarded as manifesta-
tions of the views and opinions of individual States and as vehicles of
their aspirations, rather than as expressing principles of existing law. The
very fact of convening the third Conference on the Law of the Sea
evidences a manifest desire on the part of all States to proceed to the
codification of that law on a universal basis, including the question of
fisheries and conservation of the living resources of the sea. Such a general
desire is understandable since the rules of international maritime law
have been the product of mutual accommodation, reasonableness and
co-operation. So it was in the past, and so it necessarily is today. In the
circumstances, the Court, as a court of law, cannot render judgment sub

24
24 FISHERIES JURISDICTION (JUDGMENT)

specie legis ferendae, or anticipate the law before the legislator has laid it
down.

54. The concept of a 12-mile fishery zone, referred to in paragraph 52
above, as a rertium genus between the territorial sea and the high seas, has
been accepted with regard to Iceland in the substantive provisions of the
1961 Exchange of Notes, and the United Kingdom has also applied the
same fishery limit to its own coastal waters since 1964; therefore this
matter is no longer in dispute between the Parties. At the same time, the
concept of preferential rights, a notion that necessarily implies the exis-
tence of other legal rights in respect of which that preference operates,
has been admitted by the Applicant to be relevant to the solution of the
present dispute. Moreover, the Applicant has expressly recognized
Iceland’s preferential rights in the disputed waters and at the same time
has invoked its own historic fishing rights in these same waters, on the
ground that reasonable regard must be had to such traditional rights by
the coastal State, in accordance with the generally recognized principles
embodied in Article 2 of the High Seas Convention. If, as the Court
pointed out in its dictum in the Fisheries case, cited in paragraph 49
above, any national delimitation of sea areas, to be opposable to other
States, requires evaluation in terms of the existing rules of international
law, then it becomes necessary for the Court, in its examination of the
Icelandic fisheries Regulations, to take those elements into consideration
as well. Equally it has necessarily to take into account the provisions of
the Exchange of Notes of 1961 which govern the relations between the
Parties with respect to Iceland’s fishery limits. The said Exchange of
Notes, which was concluded within the framework of the existing pro-
visions of the iaw of the sea, was held by the Court, in its Judgment
of 2 February 1973, to be a treaty which is valid and in force.

55. The concept of preferential rights for the coastal State in a situation
of special dependence on coastal fisheries originated in proposals sub-
mitted by Iceland at the Geneva Conference of 1958. Its delegation drew
attention to the problem which would arise when, in spite of adequate
fisheries conservation measures, the yield ceased to be sufficient to satisfy
the requirements of all those who were interested in fishing in a given
area. Iceland contended that in such a case, when a catch-limitation
becomes necessary, special consideration should be given to the coastal
State whose population is overwhelmingly dependent on the fishing
resources in its adjacent waters.

56. An Icelandic proposal embodying these ideas failed to obtain the
majority required, but a resolution was adopted at the 1958 Conference

25
25 FISHERIES JURISDICTION (JUDGMENT)

concerning the situation of countries or territories whose people are
overwhelmingly dependent upon coastal fisheries for their livelihood or
economic development. This resolution, after “recognizing that such
situations call for exceptional measures befitting particular needs” re-
commended that:

««_. where, for the purpose of conservation, it becomes necessary to
limit the total catch of a stock or stocks of fish in an area of the high
seas adjacent to the territorial sea of a coastal State, any other States
fishing in that area should collaborate with the coastal State to
secure just treatment of such situation, by establishing agreed
measures which shall recognize any preferential requirements of the
coastal State resulting from its dependence upon the fishery con-
cerned while having regard to the interests of the other States”.

The resolution further recommended that “appropriate conciliation and
arbitral procedures shall be established for the settlement of any disagree-
ment”.

57. At the Plenary Meetings of the 1960 Conference the concept of
preferential rights was embodied in a joint amendment presented by
Brazil, Cuba and Uruguay which was subsequently incorporated by a
substantial vote into a joint United States-Canadian proposal concerning
a 6-mile territorial sea and an additional 6-mile fishing zone, thus totalling
a 12-mile exclusive fishing zone, subject to a phasing-out period. This
amendment provided, independently of the exclusive fishing zone, that
the coastal State had:

“... the faculty of claiming preferential fishing rights in any area of
the high seas adjacent to its exclusive fishing zone when it is scientific-
ally established that a special situation or condition makes the exploi-
tation of the living resources of the high seas in that area of funda-
mental importance to the economic development of the coastal State
or the feeding of its population”.

It also provided that:

“A special situation or condition may be deemed to exist when:

(a) The fisheries and the economic development of the coastal State
or the feeding of its population are so manifestly interrelated
that, in consequence, that State is greatly dependent on the
living resources of the high seas in the area in respect of which
preferential fishing is being claimed;

(b) It becomes necessary to limit the total catch of a stock or stocks
of fish in such areas...”
The contemporary practice of States leads to the conclusion that the
26
26 FISHERIES JURISDICTION (JUDGMENT)

preferential rights of the coastal State in a special situation are to be
implemented by agreement between the States concerned, either bilateral
or multilateral, and, in case of disagreement, through the means for the
peaceful settlement of disputes provided for in Article 33 of the Charter of
the United Nations. It was in fact an express condition of the amendment
referred to above that any other State concerned would have the right to
request that a claim made by a coastal State should be tested and deter-
mined by a special commission on the basis of scientific criteria and of
evidence presented by the coastal State and other States concerned. The
commission was to be empowered to determine, for the period of time
and under the limitations that it found necessary, the preferential rights
of the coastal State, ‘“‘while having regard to the interests of any other
State or States in the exploitation of such stock or stocks of fish”.

58. State practice on the subject of fisheries reveals an increasing and
widespread acceptance of the concept of preferential rights for coastal
States, particularly in favour of countries or territories in a situation of
special dependence on coastal fisheries. Both the 1958 Resolution and the
1960 joint amendment concerning preferential rights were approved by a
large majority of the Conferences, thus showing overwhelming support
for the idea that in certain special situations it was fair to recognize that
the coastal State had preferential fishing rights. After these Conferences,
the preferential rights of the coastal State were recognized in various
bilateral and multilateral international agreements. The Court’s attention
has been drawn to the practice in this regard of the North-West and
North-East Atlantic Fisheries Commissions, of which 19 maritime States
altogether, including both Parties, are members; its attention has also
been drawn to the Arrangement Relating to Fisheries in Waters Sur-
rounding the Faroe Islands, signed at Copenhagen on 18 December 1973
on behalf of the Governments of Belgium, Denmark, France, the Federal
Republic of Germany, Norway, Poland and the United Kingdom, and to
the Agreement on the Regulation of the Fishing of North-East Arctic
(Arcto-Norwegian) Cod, signed on 15 March 1974 on behalf of the
Governments of the United Kingdom, Norway and the Union of Soviet
Socialist Republics. Both the aforesaid agreements, in allocating the
annual shares on the basis of the past performance of the parties in the
area, assign an additional share to the coastal State on the ground of its
preferential right in the fisheries in its adjacent waters. The Faroese
agreement takes expressly into account in its preamble ‘‘the exceptional
dependence of the Faroese economy on fisheries” and recognizes “that
the Faroe Islands should enjoy preference in waters surrounding the
Faroe Islands”.

_ 59. There can be no doubt of the exceptional dependence of Iceland on
its fisheries. That exceptional dependence was explicitly recognized by
the Applicant in the Exchange of Notes of 11 March 1961, and the Court

27
27 FISHERIES JURISDICTION (JUDGMENT)

has also taken judicial notice of such recognition, by declaring that it is
“necessary to bear in mind the exceptional dependence of the Icelandic
nation upon coastal fisheries for its livelihood and economic develop-
ment” (Z.C.J. Reports 1972, p. 16, para. 23).

60. The preferential rights of the coastal State come into play only at
the moment when an intensification in the exploitation of fishery resources
makes it imperative to introduce some system of catch-limitation and
sharing of those resources, to preserve the fish stocks in the interests of
their rational and economic exploitation. This situation appears to have
been reached in the present case. In regard to the two main demersal
species concerned—cod and haddock—the Applicant has shown itself
aware of the need for a catch-limitation which has become indispensable
in view of the establishment of catch-limitations in other regions of the
North Atlantic. lf a system of catch-limitation were not established in the
Icelandic area, the fishing effort displaced from those other regions might
well be directed towards the unprotected grounds in that area.

61. The Icelandic regulations challenged before the Court have been
issued and applied by the Icelandic authorities as a claim to exclusive
rights thus going beyond the concept of preferential rights. Article 2 of
the Icelandic Regulations of 14 July 1972 states:

“Within the fishery limits all fishing activities by foreign vessels
shall be prohibited in accordance with the provisions of Law No. 33
of 19 June 1922, concerning Fishing inside the Fishery Limits.”

Article 1 of the 1922 Law provides: ‘‘Only Icelandic citizens may engage
in fishing in the territorial waters of Iceland, and only Icelandic boats or
ships may be used for such fishing.” The language of the relevant
government regulations indicates that their object is to establish an
exclusive fishery zone, in which all fishing by vessels registered in other
States, including the United Kingdom, would be prohibited. The mode
of implementation of the regulations, carried out by Icelandic govern-
mental authorities vis-à-vis United Kingdom fishing vessels, before the
1973 interim agreement, and despite the Court’s interim measures,
confirms this interpretation.

62. The concept of preferential rights is not compatible with the
exclusion of all fishing activities of other States. A coastal State entitled to
preferential rights is not free, unilaterally and according to its own un-
controlled discretion, to determine the extent of those rights. The charac-
terization of the coastal State’s rights as preferential implies a certain
priority, but cannot imply the extinction of the concurrent rights of other

28
28 FISHERIES JURISDICTION (JUDGMENT)

States, and particularly of a State which, like the Applicant, has for many
years been engaged in fishing in the waters in question, such fishing
activity being important to the economy of the country concerned. The
coastal State has to take into account and pay regard to the position of
such other States, particularly when they have established an economic
dependence on the same fishing grounds. Accordingly, the fact that Iceland
is entitled to claim preferential rights does not suffice to justify its claim
unilaterally to exclude the Applicant’s fishing vessels from all fishing
activity in the waters beyond the limits agreed to in the 1961 Exchange of
Notes.

* *

63. In this case, the Applicant has pointed out that its vessels have been
fishing in Icelandic waters for centuries and that they have done so in a
manner comparable with their present activities for upwards of 50 years.
Published statistics indicate that from 1920 onwards, fishing of demersal
species by United Kingdom vessels in the disputed area has taken place on
a continuous basis from year to year, and that, except for the period of
the Second World War, the total catch of those vessels has been remark-
ably steady. Similar statistics indicate that the waters in question con-
stitute the most important of the Applicant’s distant-water fishing grounds
for demersal species.

64. The Applicant further states that in view of the present situation of
fisheries in the North Atlantic, which has demanded the establishment of
agreed catch-limitations of cod and haddock in various areas, it would
not be possible for the fishing effort of United Kingdom vessels displaced
from the Icelandic area to be diverted at economic levels to other fishing
grounds in the North Atlantic. Given the lack of alternative fishing
opportunity, it is further contended, the exclusion of British fishing
vessels from the Icelandic area would have very serious adverse con-
sequences, with immediate results for the affected vessels and with
damage extending over a wide range of supporting and related industries.
It is pointed out in particular that wide-spread unemployment would be
caused among all sections of the British fishing industry and in ancillary
industries and that certain ports—Hull, Grimsby and Fleetwood—
specially reliant on fishing in the Icelandic area, would be seriously
affected.

65. Iceland has for its part admitted the existence of the Applicant’s
historic and special interests in the fishing in the disputed waters. The
Exchange of Notes as a whole and in particular its final provision re-
quiring Iceland to give advance notice to the United Kingdom of any
extension of its fishery limits impliedly acknowledged the existence of
United Kingdom fishery interests in the waters adjacent to the 12-mile
limit. The discussions which have taken place between the two countries
also imply an acknowledgement by Iceland of the existence of such

29
29 FISHERIES JURISDICTION (JUDGMENT)

interests. Furthermore, the Prime Minister of Iceland stated on 9 Novem-
ber 1971:

“|. the British have some interests to protect in this connection.
For a long time they have been fishing in Icelandic waters ... The
well-being of specific British fishing towns may nevertheless to some
extent be connected with the fisheries in Icelandic waters . . .”

66. Considerations similar to those which have prompted the recogni-
tion of the preferential rights of the coastal State in a special situation
apply when coastal populations in other fishing States are also dependent
on certain fishing grounds. In both instances the economic dependence
and the livelihood of whole communities are affected. Not only do the
same considerations apply, but the same interest in conservation exists.
In this respect the Applicant has recognized that the conservation and
efficient exploitation of the fish stocks in the Iceland area are of impor-
tance not only to Iceland but also to the United Kingdom.

67. The provisions of the Icelandic Regulations of 14 July 1972 and
the manner of their implementation disregard the fishing rights of the
Applicant. Iceland’s unilateral action thus constitutes an infringement of
the principle enshrined in Article 2 of the 1958 Geneva Convention on
the High Seas which requires that all States, including coastal States, in
exercising their freedom of fishing, pay reasonable regard to the interests
of other States. It also disregards the rights of the Applicant as they result
from the Exchange of Notes of 1961. The Applicant is therefore justified
in asking the Court to give all necessary protection to its own rights,
while at the same time agreeing to recognize Iceland’s preferential posi-
tion. Accordingly, the Court is bound to conclude that the Icelandic
Regulations of 14 July 1972 establishing a zone of exclusive fisheries
jurisdiction extending to 50 nautical miles from baselines around the coast
of Iceland, are not opposable to the United Kingdom, and the latter is
under no obligation to accept the unilateral termination by Iceland of
United Kingdom fishery rights in the area.

68. The findings stated by the Court in the preceding paragraphs
suffice to provide a basis for the decision of the present case, namely:
that Iceland’s extension of its exclusive fishery jurisdiction beyond 12
miles is not opposable to the United Kingdom; that Iceland may on the
other hand claim preferential rights in the distribution of fishery resources
in the adjacent waters; that the United Kingdom also has established
rights with respect to the fishery resources in question; and that the prin-
ciple of reasonable regard for the interests of other States enshrined in
Article 2 of the Geneva Convention on the High Seas of 1958 requires
Iceland and the United Kingdom to have due regard to each other’s
interests, and to the intercsts of other States, in those resources.

*

30
30 FISHERIES JURISDICTION (JUDGMENT)

69. It follows from the reasoning of the Court in this case that in
order to reach an equitable solution of the present dispute it is necessary
that the preferential fishing rights of Iceland, as a State specially depen-
dent on coastal fisheries, be reconciled with the traditional fishing rights
of the Applicant. Such a reconciliation cannot be based, however, on a
phasing-out of the Applicant’s fishing, as was the case in the 1961 Ex-
change of Notes in respect of the 12-mile fishery zone. In that zone,
Iceland was to exercise exclusive fishery rights while not objecting to
continued fishing by the Applicant’s vessels during a phasing-out period.
In adjacent waters outside that zone, however, a similar extinction of
rights of other fishing States, particularly when such rights result from a
situation of economic dependence and long-term reliance on certain
fishing grounds, would not be compatible with the notion of preferential
rights as it was recognized at the Geneva Conferences of 1958 and 1960,
nor would it be equitable. At the 1960 Conference, the concept of prefer-
ential rights of coastal States in a special situation was recognized in the
joint amendment referred to in paragraph 57 above, under such limita-
tions and to such extent as is found ‘‘necessary by reason of the depen-
dence of the coastal State on the stock or stocks of fish, while having
regard to the interests of any other State or States in the exploitation of
such stock or stocks of fish”. The reference to the interests of other
States in the exploitation of the same stocks clearly indicates that the
preferential rights of the coastal State and the established rights of other
States were considered as, in principle, continuing to co-exist.

70. This is not to say that the preferential rights of a coastal State in a
special situation are a static concept, in the sense that the degree of the
coastal State’s preference is to be considered as fixed for ever at some
given moment. On the contrary, the preferential rights are a function of
the exceptional dependence of such a coastal State on the fisheries in
adjacent waters and may, therefore, vary as the extent of that dependence
changes. Furthermore, as was expressly recognized in the 1961 Exchange
of Notes, a coastal State’s exceptional dependence on fisheries may relate

not only to the livelihood of its people but to its economic development.
In each case, it is essentially a matter of appraising the dependence of the
coastal State on the fisheries in question in relation to that of the other
State concerned and of reconciling them in as equitable a manner as is
possible.

71. In view of the Court’s finding (paragraph 67 above) that the
Icelandic Regulations of 14 July 1972 are not opposable to the United
Kingdom for the reasons which have been stated, it follows that the
Government of Iceland is not in law entitled unilaterally to exclude
United Kingdom fishing vessels from sea areas to seaward of the limits
agreed to in the 1961 Exchange of Notes or unilaterally to impose restric-
tions on their activities in such areas. But the matter does not end there;

31
31 FISHERIES JURISDICTION (JUDGMENT)

as the Court has indicated, Iceland is, in view of its special situation,
entitled to preferential rights in respect of the fish stocks of the waters
adjacent to its coasts. Due recognition must be given to the rights of both
Parties, namely the rights of the United Kingdom to fish in the waters in
dispute, and the preferential rights of Iceland. Neither right is an absolute
one: the preferential rights of a coastal State are limited according to the
extent of its special dependence on the fisheries and by its obligation to
take account of the rights of other States and the needs of conservation;
the established rights of other fishing States are in turn limited by reason
of the coastal State’s special dependence on the fisheries and its own
obligation to take account of the rights of other States, including the
coastal State, and of the needs of conservation.

72. Et follows that even if the Court holds that Iceland’s extension of
its fishery limits is not opposable to the Applicant, this does not mean
that the Applicant is under no obligation to Iceland with respect to fishing
in the disputed waters in the 12-mile to 50-mile zone. On the contrary,
both States have an obligation to take full account of each others rights
and of any fishery conservation measures the necessity of which is shown
to exist in those waters. It is one of the advances in maritime international
law, resulting from the intensification of fishing, that the former /aissez-
faire treatment of the living resources of the sea in the high seas has been
replaced by a recognition of a duty to have due regard to the rights of
other States and the needs of conservation for the benefit of all. Conse-
quently, both Parties have the obligation to keep under review the fishery
resources in the disputed waters and to examine together, in the light of
scientific and other available information, the measures required for the
conservation and development, and equitable exploitation, of those
resources, taking into account any international agreement in force
between them, such as the North-East Atlantic Fisheries Convention of
24 January 1959, as well as such other agreements as may be reached in
the matter in the course of further negotiation.

73. The most appropriate method for the solution of the dispute is
clearly that of negotiation. Its objective should be the delimitation of the
rights and interests of the Parties, the preferential rights of the coastal
State on the one hand and the rights of the Applicant on the other, to
balance and regulate equitably questions such as those of catch-limita-
tion, share allocations and “related restrictions concerning areas closed to
fishing, number and type of vessels allowed and forms of control of the
agreed provisions” (Fisheries Jurisdiction (United Kingdom v. Iceland),
Interim Measures, Order of 12 July 1973, I.C.J. Reports 1973, p. 303,

32
32 FISHERIES JURISDICTION (JUDGMENT)

para. 7). This necessitates detailed scientific knowledge of the fishing
grounds. It is obvious that the relevant information and expertise would
be mainly in the possession of the Parties. The Court would, for this
reason, meet with difficulties if it were itself to attempt to lay down a
precise scheme for an equitable adjustment of the rights involved. It is
thus obvious that both in regard to merits and to jurisdiction the Court
only pronounces on the case which is before it and not on any hypo-
thetical situation which might arise in the future.

74. It is implicit in the concept of preferential rights that negotiations
are required in order to define or delimit the extent of those rights, as
was already recognized in the 1958 Geneva Resolution on Special Situa-
tions relating to Coastal Fisheries, which constituted the starting point of
the law on the subject. This Resolution provides for the establishment,
through collaboration between the coastal State and any other State
fishing in the area, of agreed measures to secure just treatment of the
special situation.

75. The obligation to negotiate thus flows from the very nature of the
respective rights of the Parties; to direct them to negotiate is therefore a
proper exercise of the judicial function in this case. This also corresponds
to the Principles and provisions of the Charter of the United Nations
concerning peaceful settlement of disputes. As the Court stated in the
North Sea Continental Shelf cases:

ec

. this obligation merely constitutes a special application of a
principle which underlies all international relations, and which is
moreover recognized in Article 33 of the Charter of the United
Nations as one of the methods for the peaceful settlement of interna-
tional disputes” (.C.J. Reports 1969, p. 47, para. 86).

76. In this case negotiations were initiated by the Parties from the date
when Iceland gave notice of its intention to extend its fisheries jurisdic-
tion, but these negotiations reached an early deadlock, and could not
come to any conclusion; subsequently, further negotiations were directed
to the conclusion of the interim agreement of 13 November 1973. The
obligation to seek a solution of the dispute by peaceful means, among
which negotiations are the most appropriate to this case, has not been
eliminated by that interim agreement. The question has been raised, how-
ever, on the basis of the deletion of a sentence which had been proposed
by the United Kingdom in the process of elaboration of the text, whether
the parties agreed to wait for the expiration of the term provided for in
the interim agreement without entering into further negotiations. The
deleted sentence, which would have appeared in paragraph 7 of the 1973
Exchange of Notes, read: “The Governments will reconsider the position
before that term expires unless they have in the meantime agreed to a
settlement of the substantive dispute.”

77. The Court cannot accept the view that the deletion of this sentence
which concerned renegotiation of the interim régime warrants the in-

33
33 FISHERIES JURISDICTION (JUDGMENT)

ference that the common intention of the Parties was to be released from
negotiating in respect of the basic dispute over Iceland’s extension to a
50-mile limit throughout the whole period covered by the interim agree-
ment. Such an intention would not correspond to the attitude taken up
by the Applicant in these proceedings, in which it has asked the Court to
adjudge and declare that the Parties are under a duty to negotiate a ré-
gime for the fisheries in the area. Nor would an interpretation of this
kind, in relation to Iceland’s intention, correspond to the clearly stated
policy of the Icelandic authorities to continue negotiations on the basic
problems relating to the dispute, as emphasized by paragraph 3 of the
Althing Resolution of 15 February 1972, referred to earlier, which reads:
“That efforts to reach a solution of the problems connected with the
extension be continued through discussions with the Governments of the
United Kingdom and the Federal Republic of Germany.” Taking into
account that the interim agreement contains a definite date for its expira-
tion, and in the light of what has been stated in paragraph 75 above, it
would seem difficult to attribute to the Parties an intention to wait for
that date and for the reactivation of the dispute, with all the possible
friction it might engender, before one of them might require the other to
attempt a peaceful settlement through negotiations. At the same time,
the Court must add that its Judgment cbviously cannot preclude the
Parties from benefiting from any subsequent developments in the pertinent
rules of international law.

78. In the fresh negotiations which are to take place on the basis of the
present Judgment, the Parties will have the benefit of the above appraisal
of their respective rights, and of certain guidelines defining their scope.
The task before them will be to conduct their negotiations on the basis
that each must in good faith pay reasonable regard to the legal rights of
the other in the waters around Iceland outside the 12-mile limit, thus
bringing about an equitable apportionment of the fishing resources based
on the facts of the particular situation, and having regard to the interests
of other States which have established fishing rights in the area. It is not a
matter of finding simply an equitable solution, but an equitable solution
derived from the applicable law. As the Court stated in the North Sea
Continental Shelf cases:

€

‘...it is not a question of applying equity simply as a matter of
abstract justice, but of applying a rule of law which itself requires the
application of equitable principles” (Z.C.J. Reports 1969, p. 47, para.
85).

34
34

FISHERIES JURISDICTION (JUDGMENT)

79. For these reasons,
THE COURT,

by ten votes to four,

(1)

(2)

finds that the Regulations concerning the Fishery Limits off Iceland
(Reglugerd um fiskveidilandhelgi fslands) promulgated by the
Government of Iceland on 14 July 1972 and constituting a unilateral
extension of the exclusive fishing rights of Iceland to 50 nautical
miles from the baselines specified therein are not opposable to the
Government of the United Kingdom;

finds that, in consequence, the Government of Iceland is not entitled
unilaterally to exclude United Kingdom fishing vessels from areas
between the fishery limits agreed to in the Exchange of Notes of
11 March 1961 and the limits specified in the Icelandic Regulations
of 14 July 1972, or unilaterally to impose restrictions on the activities
of those vessels in such areas;

by ten votes to four,

(3)

(4)

35

holds that the Government of Iceland and the Government of the
United Kingdom are under mutual obligations to undertake negotia-
tions in good faith for the equitable solution of their differences
concerning their respective fishery rights in the areas specified in
subparagraph 2;

holds that in these negotiations the Parties are to take into account,
inter alia:

(a) that in the distribution of the fishing resources in the areas
specified in subparagraph 2 Iceland is entitled to a preferential
share to the extent of the special dependence of its people upon
the fisheries in the seas around its coasts for their livelihood and
economic development;

(b) that by reason of its fishing activities in the areas specified in
subparagraph 2, the United Kingdom also has established rights
in the fishery resources of the said areas on which elements of
its people depend for their livelihood and economic well-being;

(c) the obligation to pay due regard to the interests of other States
in the conservation and equitable exploitation of these resources;
(d) that the above-mentioned rights of Iceland and of the United
Kingdom should each be given effect to the extent compatible
with the conservation and development of the fishery resources
in the areas specified in subparagraph 2 and with the interests
of other States in their conservation and equitable exploitation;

(e) their obligation to keep under review those resources and to
examine together, in the light of scientific and other available
information, such measures as may be required for the conser-
35 FISHERIES JURISDICTION (JUDGMENT)

vation and development, and equitable exploitation, of those
resources, making use of the machinery established by the
North-East Atlantic Fisheries Convention or such other means
as may be agreed upon as a result of international negotiations,

Done in English, and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twenty-fifth day of July, one
thousand nine hundred and seventy-four, in three copies, of which one
will be placed in the archives of the Court and the others transmitted to
the Government of the United Kingdom of Great Britain and Northern
Ireland and to the Government of the Republic of Iceland respectively.

(Signed) Manfred LACHS,

President.

(Signed) S. AQUARONE,
Registrar.

President LACHS makes the following declaration:

lam in agreement with the reasoning and conclusions of the Court, and
since the Judgment speaks for and stands by itself, 1 would not feel it
appropriate to make any gloss upon it.

Judge IGNACIO-PINTO makes the following declaration:

To my regret, I have been obliged to vote against the Court’s Judgment.
However, to my mind my negative vote does not, strictly speaking, signify
opposition, since in a different context I would certainly have voted in
favour of the process which the Court considered it should follow to
arrive at its decision. In my view that decision is devoted to fixing the
conditions for exercise of preferential rights, for conservation of fish
species, and historic rights, rather than to responding to the primary
claim of the Applicant, which is for a statement of the law on a specific
point.

T would have all the more willingly endorsed the concept of preferential
rights inasmuch as the Court has merely followed its own decision in the
Fisheries case.

It should be observed that the Applicant has nowhere sought a decision
from the Court on a dispute between itself and Iceland on the subject of
the preferential rights of the coastal State, the conservation of fish
species, or historic rights—this is apparent throughout the elaborate

36
36 FISHERIES JURISDICTION (DECL. IGNACIO-PINTO)

reasoning of the Judgment. It is obvious that considerations relating to
these various points, dealt with at length in the Judgment, are not subject
to any dispute between the Parties. There is no doubt that, after setting
out the facts and the grounds relied on in support of its case, the Applicant
has asked the Court only for a decision on the dispute between itself and
Iceland, and to adjudge and declare:

“|, . that there is no foundation in international law for the claim
by Iceland to be entitled to extend its fisheries jurisdiction by
establishing a zone of exclusive fisheries jurisdiction extending to 50
nautical miles from the baselines hereinbefore referred to; and that
its claim is therefore invalid” U.C.J. Reports 1973, p. 5, para. 8

(a)).

This is clear and precise, and all the other points in the submissions are
only ancillary or consequential to this primary claim. But in response to
this basic claim, which was extensively argued by the Applicant both in
its Memorial and orally, and which was retained in its final submissions,
the Court, by means of a line of reasoning which it has endeavoured at
some length to justify, has finally failed to give any positive answer.

The Court has deliberately evaded the question which was placed
squarely before it in this case, namely whether Iceland’s claims are in
accordance with the rules of international law. Having put this question
on one side, it constructs a whole system of reasoning in order ultimately
to declare that the Regulations issued by the Government of Iceland
on 14 July 1972 and “constituting a unilateral extension of the exclusive
fishing rights of Iceland to 50 nautical miles from the baselines specified
therein are not opposable to the Government of the United Kingdom”.

In my view, the whole problem turns on this, since this claim is based
upon facts which, at least under present-day law and in the practice of the
majority of States, are flagrant violations of existing international con-
ventions. It should be noted that Iceland does not deny them. Now the
facts complained of are evident, they undoubtedly relate to the treaty
which binds the States which are Parties, for the Exchange of Notes of
11 March 1961 amounts to such an instrument. For the Court to consider,
after having dealt with the Applicant’s fundamental claim in relation to
international law, that account should be taken of Iceland’s exceptional
situation and the vital interests of its population, with a view to drawing
inspiration from equity and to devising a solution for the dispute, would
have been the normal course to be followed, the more so since the
Applicant supports it in its final submissions, But it cannot be admitted
that because of its special situation Iceland can ipso facto be exempted
from the obligation to respect the international commitments into which
it has entered. By not giving an unequivocal answer on that principal
claim, the Court has failed to perform the act of justice requested of it.

For what is one to say of the actions and behaviour of Iceland which
have resulted in its being called upon to appear before the Court? Its

37
37 FISHERIES JURISDICTION (DECL. IGNACIO-PINTO)

refusal to respect the commitment it accepted in the Exchange of Notes of
11 March 1961, to refer to the International Court of Justice any dispute
which might arise on an extension of its exclusive fisheries zone, which
was in fact foreseen by the Parties, beyond 12 nautical miles, is not this
unjustified refusal a breach of international law?

In the same way, when—contrary to what is generally recognized by
the majority of States in the 1958 Geneva Convention, in Article 2, where
it is clearly specified that there is a zone of high seas which is res com-
munis— Iceland unilaterally decides, by means of its Regulations of 14
July 1972, to extend its exclusive jurisdiction from 12 to 50 nautical miles
from the baselines, does it not in this way also commit a breach of inter-
national law? Thus the Court would in no way be open to criticism if it
upheld the claim as well founded.

For my part, I believe that the Court would certainly have strengthened
its judicial authority if it had given a positive reply to the claim laid
before it by the United Kingdom, instead of embarking on the construc-
tion of a thesis on preferential rights, zones of conservation of fish
species, or historic rights, on which there has never been any dispute,
nor even the slightest shadow of a controversy on the part either of the
Applicant or of the Respondent.

Furthermore, it causes me some concern also that the majority of the
Court seems to have adopted the position which is apparent in the present
Judgment with the intention of pointing the way for the participants in
the Conference on the Law of the Sea now sitting in Caracas.

The Court here gives the impression of being anxious to indicate the
principles on the basis of which it would be desirable that a general inter-
national regulation of rights of fishing should be adopted.

I do not discount the value of the reasons which guided the thinking
of the majority of the Court, and the Court was right to take account of
the special situation of Iceland and its inhabitants, which is deserving of
being treated with special concern. In this connection, the same treatment
should be contemplated for all developing countries in the same position,
which cherish the hope of seeing all these fisheries problems settled, since
it is at present such countries which suffer from the anarchy and lack of
organization of international fishing. But that is not the question which
has been laid before the Court, and the reply given can only be described
as evasive.

In taking this viewpoint [ am not unaware of the risk that [ may be
accused of not being in tune with the modern trend for the Court to
arrogate a creative power which does not pertain to it under either the
United Nations Charter or its Statute. Perhaps some might even say that
the classic conception of international law to which I declare allegiance
is out-dated; but for myself, I do not fear to continue to respect the
classic norms of that law. Perhaps from the Third Conference on the
Law of the Sea some positive principles accepted by all States will emerge.
I hope that this will be so, and shall be the first to applaud—and further-
more I shall be pleased to see the good use to which they can be put, in

38
38 FISHERIES JURISDICTION (DECL. IGNACIO-PINTO)

particular for the benefit of the developing countries. But since I am
above all faithful to judicial practice, I continue fervently to urge the
need for the Court to confine itself to its obligation to state the law as
it is at present in relation to the facts of the case brought before it.

Î consider it entirely proper that, in international law as in every other
system of law, the existing law should be questioned from time to time
—this is the surest way of furthering its progressive development—but
it cannot be concluded from this that the Court should, for this reason
and on the occasion of the present dispute between Iceland and the United
Kingdom, emerge as the begetter of certain ideas which are more and
more current today, and are even shared by a respectable number of
States, with regard to the law of the sea, and which are in the minds, it
would seem, of most of those attending the Conference now sitting in
Caracas. It is advisable, in my opinion, to avoid entering upon anything
which would anticipate a settlement of problems of the kind implicit in
preferential and other rights.

To conclude this declaration, I think I may draw inspiration from the
conclusion expressed by the Deputy Secretary of the United Nations
Sea-Bed Committee, Mr. Jean-Pierre Lévy, in the hope that the idea it
expresses may be an inspiration to States, and to Iceland in particular
which, while refraining from following the course of law, prefers to
await from political gatherings a justification of its rights.

I agree with Mr. Jean-Pierre Lévy in thinking that:

“it is to be hoped that States will make use of the next four or
five years to endeavour to prove to themselves and particularly to
their nationals that the general interest of the international community
and the well-being of the peoples of the world can be preserved by
moderation, mutual understanding, and the spirit of compromise;
only these will enable the Third Conference on the Law of the Sea
to be held and to succeed in codifying a new legal order for the sea
and its resources” (“La troisième Conférence sur le droit de la mer”,
Annuaire francais de droit international, 1971, p. 828).

In the expectation of the opening of the new era which is so much
hoped for, I am honoured at finding myself in agreement with certain
Members of the Court like Judges Gros, Petrén and Onyeama for whom
the golden rule for the Court is that, in such a case, it should confine
itself strictly within the limits of the jurisdiction conferred on it.

Judge NAGENDRA SINGH makes the following declaration:

There are certain valid reasons which weigh with me to the extent that
they enable me to support the Judgment of the Court in this case and

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39 FISHERIES JURISDICTION (DECL. NAGENDRA SINGH)

hence I consider them of such importance as to be appropriately empha-
sized to convey the true significance of the Judgment—its extent as well
as its depth. These reasons, as well as those aspects of the Judgment which
have that importance from my viewpoint are briefly stated as follows:

I

While basing its findings on the bilateral law, namely the Exchange of
Notes of 1961 which has primacy in this case, the Court has pronounced
upon (b) and fe) ! the second and third submissions of the Applicant’s
Memorial on the merits, in terms of non-opposability to the United
Kingdom. This suffices for the purpose of that part of the Judgment and
is in accordance with the statement made by counsel? for the Applicant
at the hearings, to the effect that the second and third submissions are
separable from the first and it is open to the Court not to adjudicate on
the first submission (a) ! which relates to the general law.

In the special circumstances of this case the Court has, therefore, not
proceeded to pronounce upon the first submission (a) of the Applicant,
which requests the Court to declare that Iceland’s extension of its ex-
clusive fishery limit to 50 nautical miles is invalid being without foun-
dation in international law which amounts to asking the Court to find
that such extension is ipso jure, illegal and invalid erga omnes. Having re-
frained from pronouncing on that aspect it was, consequently, unneces-
sary for the Court to pronounce on the Applicant’s legal contention in
support of its first submission, namely, that a customary rule of inter-
national law exists today imposing a general prohibition on extension
by States of their fisheries jurisdiction beyond 12 miles.

There is still a lingering feature of development associated with the
general law. The rules of customary maritime law relating to the limit
of fisheries jurisdiction have still been evolving and confronted by a
widely divergent and, discordant State practice, have not so far
crystallized. Again, the conventional maritime law though substantially
codified by the Geneva Conferences on the Law of the Sea of 1958 and
1960 has certain aspects admittedly left over to be settled and these now
constitute, among others, the subject of subsequent efforts at codification.
The question of the extent of fisheries jurisdiction which is still one of the
unsettled aspects could not, therefore, be settled by the Court since it
could not “‘render judgment sub specie legis ferendae, or anticipate the
Jaw before the legislator has laid it down”.

2 Hearing of 29 March 1974, CR 74/3, p. 23.
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40 FISHERIES JURISDICTION (DECL. NAGENDRA SINGH)

This is of importance to me but I do not have to elaborate this point
any further since I have subscribed to the views expressed by my col-
leagues in the joint separate opinion of the five Judges wherein this aspect
has been more fully dealt with.

IT

The contribution which the Judgment makes towards the development
of the Law of the Sea lies in the recognition which it gives to the concept
of preferential rights of a coastal State in the fisheries of the adjacent
waters particularly if that State is in a special situation with its population
dependent on those fisheries. Moreover, the Court proceeds further to
recognize that the law pertaining to fisheries must accept the primacy for
the need of conservation based on scientific data. This aspect has been
properly emphasized to the extent needed to establish that the exercise
of preferential rights of the coastal State as well as the historic rights of
other States dependent on the same fishing grounds, have all to be
subject to the over-riding consideration of proper conservation of the
fishery resources for the benefit of ail concerned. This conclusion would
appear warranted if this vital source of man’s nutrition is to be preserved
and developed for the community.

In addition there has always been the need for accepting clearly in
maritime matters the existence of the duty to “have reasonable regard to
the interests of other States’—a principle enshrined in Article 2 of the
Geneva Convention of the High Seas 1958 which applies even to the
four freedoms of the seas and has weighed with the Court in this case.
Thus the rights of the coastal State which must have preference over the
rights of other States in the coastal fisheries of the adjacent waters have
nevertheless to be exercised with due regard to the rights of other States
and the claims and counter-claims in this respect have to be resolved on
the basis of considerations of equity. There is, as yet, no specific con-
ventional law governing this aspect and it is the evolution of customary
law which has furnished the basis of the Court’s Judgment in this case.

HY

The Court, as the principal judicial organ of the United Nations, taking
into consideration the special field in which it operates, has a distinct role
to play in the administration of justice. In that context the resolving of a
dispute brought before it by sovereign States constitutes an element which
the Court ought not to ignore in its adjudicatory function. This aspect
relating to the settlement of a dispute has been emphasized in more than
one article of the Charter of the United Nations. There is Article 2,
paragraph 3, as well as Article 1, which both use words like “adjustment

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41 FISHERIES JURISDICTION (DECL. NAGENDRA SINGH)

or settlement of international disputes or situations”, whereas Article 33
directs Members to ‘‘seek a solution” of their disputes by peaceful means.

Furthermore, this approach is very much in accordance with the juris-
prudence of the Court. On 19 August 1929 the Permanent Court of
International Justice in its Order in the case of the Free Zones of Upper
Savoy and the District of Gex (P.C.1.J., Series A, No. 22, at p. 13) ob-
served that the judicial settlement of international disputes is simply an
alternative to the direct and friendly settlement of such disputes between
the parties. Thus if negotiations become necessary in the special circum-
stances of a particular case the Court ought not to hesitate to direct
negotiations in the best interests of resolving the dispute. Defining the
content of the obligation to negotiate, the Permanent Court in its Ad-
visory Opinion of 1931 in the case of Railway Traffic between Lithuania
and Poland (P.C.LJ., Series A/B, No. 42, 1931, at p. 116) observed that the
obligation was ‘tnot only to enter into negotiations, but also to pursue
them as far as possible, with a view to concluding agreements” even if
“an obligation to negotiate does not imply an obligation to reach an
agreement”. This does clearly imply that everything possible should be
done not only to promote but also to help to conclude successfully the
process of negotiations once directed for the settlement of a dispute. In
addition we have also the North Sea Continental Shelf cases (1.C.J.
Reports 1969) citing Article 33 of the United Nations Charter and where
the Parties were to negotiate in good faith on the basis of the Judgment to
resolve the dispute.

Though it would not only be improper but quite out of the question for
a court of law to direct negotiations in every case or even to contemplate
such a step when the circumstances did not justify the same, it would
appear that in this particular case negotiations appear necessary and flow
from the nature of the dispute, which is confined to the same fishing
grounds and relates to issues and problems which best lend themselves to
settlement by negotiation. Again, negotiations are also indicated by the
nature of the law which has to be applied, whether it be the treaty of 1961
with its six months’ notice in the compromissory clause provided osten-
sibly for negotiations or whether it be reliance on considerations of
equity. The Court has, therefore, answered the last submission ((e) ! re-
lettered as (d) of the Applicant’s Memorial on the merits) in the affir-
mative and accepted that negotiations furnished the correct answer to the
problem posed by the need for equitably reconciling the historic right
of the Applicant based on traditional fishing with the preferential rights
of Iceland as a coastal State in a situation of special dependence on its
fisheries. The Judgment of the Court, in asking the Parties to negotiate a

1 See paras. 11 and 12 of the Judgment for the text of the submissions.

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42 FISHERIES JURISDICTION (DECL. NAGENDRA SINGH)

settlement, has thus emphasized the importance of resolving the dispute
in the adjudication of the case.

No court of law and particularly not the International Court of Justice
could ever be said to derogate from its function when it gives due im-
portance to the settlement of a dispute which is the ultimate objective of
all adjudication as well as of the United Nations Charter and the Court, as
its organ, could hardly afford to ignore this aspect. A tribunal, while
discharging its function in that manner, would appear to be adjudicating
in the larger interest and ceasing to be narrow and restrictive in its
approach.

Thus, the interim agreement of 1973 entered into by the contesting
Parties with full reservations as to their respective rights and which helped
to avoid intensification of the dispute could never prevent the Court from
pronouncing on the United Kingdom submissions. To decide otherwise
would have meant imposing a penalty on those who negotiate an interim
agreement to avoid friction as a preliminary to the settlement of a dis-
pute.

Again, when confronted with the problem of its own competence in
dealing with that aspect of the dispute which relates to the need for con-
servation and the exercise of preferential rights with due respect for his-
toric rights, the Court has rightly regarded those aspects to be an integral
part of the dispute. Surely, the dispute before the Court has to be con-
sidered in all its aspects if it is to be properly resolved and effectively
adjudicated upon. This must be so if it is not part justice but the whole
justice which a tribunal ought always to have in view. It could, therefore,
be said that it was in the overall interests of settlement of the dispute
that certain parts of it which were inseparably linked to the core of
the conflict were not separated in this case to be left unpronounced
upon. The Court has, of course, to be mindful of the limitations that
result from the principle of consent as the basis of international obli-
gations, which also governs its own competence to entertain a dispute.
However, this could hardly be taken to mean that a tribunal con-
stituted as a regular court of law when entrusted with the determination
of a dispute by the willing consent of the parties should in any way
fall short of fully and effectively discharging its obligations. It would be
somewhat disquieting if the Court were itself to adopt either too narrow
an approach or too restricted an interpretation of those very words which
confer jurisdiction on the Court such as in this case “the extension of
fisheries jurisdiction around Iceland” occurring in the compromissory
clause of the Exchange of Notes of 1961. Those words could not be held
to confine the competence conferred on the Court to the sole question
of the conformity or otherwise of Iceland’s extension of its fishery limits
with existing legal rules. The Court, therefore, need not lose sight of the
consideration relating to the settlement of the dispute while remaining
strictly within the framework of the law which it administers and adhering
always to the procedures which it must follow.

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43 FISHERIES JURISDICTION (DECL. NAGENDRA SINGH)

IV

For purposes of administering the law of the sea and for proper under-
standing of matters pertaining to fisheries as well as to appreciate the
facts of this case, it is of some importance to know the precise content of
the expression ‘‘fisheries jurisdiction” and for what it stands and means.
The concept of fisheries jurisdiction does cover aspects such as enforce-
ment of conservation measures, exercise of preferential rights and respect
for historic rights since each one may involve an element of jurisdiction
to implement them. Even the reference to ‘‘extension”’ in relation to
fisheries jurisdiction which occurs in the compromissory clause of the
1961 treaty could not be confined to mean merely the extension of a
geographical boundary line or limit since such an extension would be
meaningless without a jurisdictional aspect which constitutes, as it were,
its juridical content. It is significant, therefore, that the preamble of the
Truman Proclamation of 1945 respecting United States coastal fisheries
refers to a ‘‘jurisdictional” basis for implementing conservation measures
in the adjacent sea since such measures have to be enforced like any other
regulations in relation to a particular area. This further supports the
Court’s conclusion that it had jurisdiction to deal with aspects relating to
conservation and preferential rights since the 1961 treaty by the use of
the words ‘“‘extension of fisheries jurisdiction’? must be deemed to have
covered those aspects.

V

Another aspect of the Judgment which has importance from my
viewpoint is that it does not ‘‘preclude the Parties from benefiting from
any subsequent developments in the pertinent rules of international law”
(para. 77). The adjudicatory function of the Court must necessarily be
confined to the case before it. No tribunal could take notice of future
events, contingencies or situations that may arise consequent on the
holding or withholding of negotiations or otherwise even by way of a
further exercise of jurisdiction. Thus, a possibility or even a probability
of changes in law or situations in the future could not prevent the Court
from rendering Judgment today.

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44 FISHERIES JURISDICTION (DECL. NAGENDRA SINGH)

Judges FORSTER, BENGZON, JIMENEZ DE ARECHAGA, NAGENDRA SINGH
and RUDA append a joint separate opinion to the Judgment of the Court;
Judges DILLARD, DE CASTRO and Sir Humphrey WaLpock append
separate opinions to the Judgment of the Court.

Judges Gros, PETRÉN and ONYEAMA append dissenting opinions to the
Judgment of the Court.

(Initialled) M.L.
(Initialled) S.A.

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