COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIES
ET ORDONNANCES

1973

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 v. ICELAND)

JURISDICTION OF THE COURT

JUDGMENT OF 2 FEBRUARY 1973

1973

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA COMPETENCE
EN MATIÈRE DE PECHERIES

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

COMPETENCE DE LA COUR

ARRET DU 2 FEVRIER 1973
Official citation:

Fisheries Jurisdiction (United Kingdom v. Iceland),
Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 3.

Mode officiel de citation:

Compétence en matière de pêcheries (Royaume-Uni
c. Islande), compétence de la Cour, arrêt,
C.LJ, Recueil 1973, p. 3.

Sales number 37 4
Nc de vente:

2 FEBRUARY 1973
JUDGMENT

FISHERIES JURISDICTION CASE

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

JURISDICTION OF THE COURT

AFFAIRE DE LA COMPETENCE
EN MATIERE DE PECHERIES

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

COMPETENCE DE LA COUR

2 FEVRIER 1973
ARRET
1973
2 February
General List
No. 55

INTERNATIONAL COURT OF JUSTICE

YEAR 1973

2 February 1973

FISHERIES JURISDICTION CASE

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

JURISDICTION OF THE COURT

Jurisdiction of the Court—Applicability of a compromissory clause providing
for reference to the Court on the occurrence of aspecified event—Failure of one
party to appear—Examination of question of jurisdiction by the Court proprio
motu—Statute, Article 53—-Compromissory clause in Exchange of Notes—
Statute, Article 36, paragraph 1— Determination of scope and purpose of agree-
ment— Relevance of preparatory work—lInitial validity of clause—Question of
duress— Duration of clause—Implementation of clause subject to condition—
Changed circumstances of fact and law as ground of termination of agreement—
Conditions for application of doctrine of fundamental change of circumstances—
Effect of changed circumstances in relation to compromissory clause.

JUDGMENT

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

In the Fisheries Jurisdiction case,
between

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

Mr. H. Steel, OBE, Legal Counsellor in the Foreign and Commonwealth
Office,

as Agent,

assisted by

the Rt. Hon. Sir Peter Rawlinson, QC, MP, Attorney-General,

Dr. D. W. Bowett, President of Queens’ College, Cambridge, 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. J. L. Simpson, CMG, TD, Member of the English Bar,

Mr. G. Slynn, Member of the English Bar,

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

as Counsel,
and by

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

Mr. P. Pooley, Assistant Secretary, Ministry of Agriculture, Fisheries and
Food,

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. In order
to found the jurisdiction of the Court, the Application relied on Article 36,
paragraph 1, of the Statute of the Court and on an Exchange of Notes
between the Government of the United Kingdom and the Government of
Iceland dated 11 March 1961.

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.

5
5 FISHERIES JURISDICTION (JUDGMENT)

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 juris-
diction on the Court and would not appoint an Agent.

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.

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 and, the written pro-
ceedings being thus closed, the case was ready for hearing on 9 December
1972, the day following the expiration of the time-limit fixed for the
Counter-Memorial of the Government of Iceland.

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

7. 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 on the question
of the Court’s jurisdiction advanced by Sir Peter Rawlinson on behalf of the
Government of the United Kingdom. The Government of Iceland was not
represented at the hearing.

8. 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 baselines
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
FISHERIES JURISDICTION (JUDGMENT)

with the North-East Atlantic Fisheries Convention of 24 January
1959, or in the form of arrangements for collaboration in accor-
dance with the Resolution on Special Situations relating to Coastal
Fisheries of 26 April 1958, or otherwise in the form of arrangements
agreed between them that give effect to the continuing rights and
interests of both of them in the fisheries of the waters in question.”’

in the Memorial:

“The Government of the United Kingdom submit to the Court that
they are entitled to a declaration and judgment that the Court has full
jurisdiction to proceed to entertain the Application by the United King-
dom on the merits of the dispute.”

9. At the close of the oral proceedings, the following written submissions
were filed in the Registry of the Court on behalf of the Government of the
United Kingdom:

“The Government of the United Kingdom contend

(a)
(b)

(c)

(d)

(e)

that the Exchange of Notes of 11 March, 1961, always has been and
remains now a valid agreement;

that, for the purposes of Article 36 (1) of the Statute of the Court,
the Exchange of Notes of 11 March, 1961, constitutes a treaty or
convention in force, and a submission by both parties to the juris-
diction of the Court in case of a dispute in relation to a claim by
Iceland to extend its fisheries jurisdiction beyond the limits agreed
in that Exchange of Notes;

that, given the refusal by the United Kingdom to accept the validity
of unilateral action by Iceland purporting to extend its fisheries
limits (as manifested in the Aides-Memoires of the Government of
Iceland of 31 August, 1971, and 24 February, 1972, the Resolution
of the Althing of 15 February, 1972, and the Regulations of 14 July,
1972, issued pursuant to that Resolution), a dispute exists between
Iceland and the United Kingdom which constitutes a dispute
within the terms of the compromissory clause of the Exchange of
Notes of 11 March, 1961;

that the purported termination by Iceland of the Exchange of Notes
of 11 March, 1961, so as to oust the jurisdiction of the Court is
without legal effect; and

that, by virtue of the Application Instituting Proceedings that was
filed with the Court on 14 April, 1972, the Court is now seised of
jurisdiction in relation to the said dispute.

Accordingly, the Government of the United Kingdom submit to the
Court that they are entitled to a declaration and judgment that the
Court has full jurisdiction to proceed to entertain the Application by the
United Kingdom on the merits of the dispute.”’

10. 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 with regard to the
question of the Court’s jurisdiction was however defined in the above-
mentioned letter of 29 May 1972 from the Minister for Foreign Affairs of
Iceland. After calling attention to certain documents that letter stated:

7
7 FISHERIES JURISDICTION (JUDGMENT)

“Those documents deal with the background and termination of the
agreement recorded in the Exchange of Notes of 11 March 1961, and
with the changed circumstances resulting from the ever-increasing exploi-
tation of the fishery resources in the seas surrounding Iceland.”

The letter concluded by saying:

“After the termination of the Agreement recorded in the Exchange of
Notes of 1961, there was on 14 April 1972 no basis under the Statute
for the Court to exercise jurisdiction in the case to which the United
Kingdom refers.

The Government of Iceland, considering that the vital interests of the
people of Iceland are involved, respectfully informs the Court that it is
not willing to confer jurisdiction on the Court in any case involving the
extent of the fishery limits of Iceland, and specifically in the case sought
to be instituted by the Government of the United Kingdom of Great
Britain and Northern Ireland on 14 April 1972.

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

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

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

12. It is to be regretted that the Government of Iceland has failed to
appear in order to plead the objections to the Court’s jurisdiction which
it is understood to entertain. Nevertheless the Court, in accordance with
its Statute and its settled jurisprudence, must examine proprio motu the
question of its own jurisdiction to consider the Application of the United
Kingdom. Furthermore, in the present case the duty of the Court to
make this examination on its own initiative is reinforced by the terms of
Article 53 of the Statute of the Court. According to this provision,
whenever one of the parties does not appear before the Court, or fails to
defend its case, the Court, before finding upon the merits, must satisfy
itself that it has jurisdiction. It follows from the failure of Iceland to
appear in this phase of the case that it has not observed the terms of
Article 62, paragraph 2, of the Rules of Court, which requires inter alia

8
8 FISHERIES JURISDICTION (JUDGMENT)

that a State objecting to the jurisdiction should “set out the facts and
the law on which the objection is based’’, its submissions on the matter,
and any evidence which it may wish to adduce. Nevertheless the Court,
in examining its own jurisdiction, will consider those objections which
might, in its view, be raised against its jurisdiction.

*
* *

13. To found the jurisdiction of the Court in the proceedings, the
Applicant relies on Article 36, paragraph 1, of the Court’s Statute,
which provides that: “The jurisdiction of the Court comprises ... all
matters specially provided for ... in treaties and conventions in force”;
and on the penultimate paragraph (the “‘compromissory clause”) of the
Exchange of Notes between the Government of the United Kingdom and
the Government of Iceland of 11 March 1961 (the “1961 Exchange of
Notes”), which provides:

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

In its resolution of 5 May 1959 the Althing (the Parliament of Iceland)
had declared:

66

. that it considers that Iceland has an indisputable right to
fishery limits of 12 miles, fhat 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”.

14. The meaning of the expression “extension of fisheries jurisdiction”’
in the compromissory clause must be sought in the context of this Althing
resolution and of the complete text of the 1961 Exchange of Notes, in
which the two contracting parties, referring to the discussions which had
taken place concerning a fisheries dispute between them, stated that they
were willing to settle that dispute on the following basis: The United
Kingdom, for its part, agreed that it ‘will no longer object to a twelve-
mile fishery zone around Iceland” (paragraph |! of the Notes), measured
from certain designated baselines relating to the delimitation of that zone
(paragraph 2). It futher agreed to a three-year transitional period during
which vessels registered in the United Kingdom might fish within the
outer six miles of the 12-mile zone, subject to certain specified times and
exclusions with respect to designated areas (paragraphs 3 and 4). It also

9
9 FISHERIES JURISDICTION (JUDGMENT)

recognized (in the compromissory clause) that the Icelandic Government
“will continue to work for the implementation of the Althing Resolution
of May 5, 1959” regarding its extension of fisheries jurisdiction. The
Icelandic Government, for its part, agreed in that clause to give six
months’ notice of such extension and also agreed therein that “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”.

15. In an aide-mémoire of 31 August 1971 the Government of Iceland
gave notice to the United Kingdom Government that it “now finds it
essential to extend further the zone of exclusive fisheries jurisdiction
around its coasts to include the areas of sea covering the continental
shelf”, adding that: “It is contemplated that the new limits, the precise
boundaries of which will be furnished at a later date, will enter into force
not later than 1 September, 1972.” In answer to this notice, the United
Kingdom Government advised the Government of Iceland on 27 Sep-
tember 1971 of its view “that such an extension of the fishery zone
around Iceland would have no basis in international law”. Jt also reserved
its rights under the 1961 Exchange of Notes, “including the right to refer
disputes to the International Court of Justice”.

16. There is no doubt in the present case as to the fulfilment by the
United Kingdom of its part of the agreement embodied in the 1961
Exchange of Notes concerning the recognition of a 12-mile fishery zone
around Iceland, and the phasing-out during a period of three years of
fishing by British vessels within that zone. There is no doubt either that a
dispute has arisen between the parties and that it has persisted despite the
negotiations which took place in 1971 and 1972. This dispute clearly
relates to the extension by Iceland of its fisheries jurisdiction beyond the
12-mile limit in the waters above its continental shelf, as contemplated
in the Althing resolution of 5 May 1959.

17. Equally, there is no question but that Iceland gave the United
Kingdom the required notice of extension. In consequence, the United
Kingdom having disputed the validity, not of the notice but of the
extension, the only question now before the Court is whether the resulting
dispute falls within the compromissory clause of the 1961 Exchange of
Notes as being one for determination by the Court. Since, on the face of
it, the dispute thus brought to the Court upon the Application of the
United Kingdom falls exactly within the terms of this clause, the Court
would normally apply the principle it reaffirmed in its 1950 Advisory
Opinion concerning the Competence of the General Assembly jor the
Admission of a State to the United Nations, according to which there is no
occasion to resort to preparatory work if the text of a convention is

10
10 FISHERIES JURISDICTION (JUDGMENT)

sufficiently clear in itself. However, having regard to the peculiar circum-
stances of the present proceedings, as set forth in paragraph 12 above, and
in order fully to ascertain the scope and purpose of the 1961 Exchange of
Notes, the Court will undertake a brief review of the negotiations that
led up to that exchange.

18. The records of these negotiations which were drawn up by and have
been brought to the Court’s attention by the Applicant, as well as certain
documents exchanged between the two Governments, show that, as early
as 5 October 1960, it had become apparent that the United Kingdom
would accept in principle Iceland’s right to exclusive fisheries jurisdiction
within the 12-mile limit following the end of a transitional period.
However, the Government of the United Kingdom sought an assurance
that there would be no further extensions of Icelandic fisheries jurisdiction
excluding Britsh vessels, in implementation of the Althing resolution,
except in conformity with international law. In the course of the discus-
sions concerning this point both parties accepted the notion that disputes
arising from such further extensions should be submitted to third-party
decision. The Government of Iceland preferred recourse to arbitration,
a position consistent with the proposals it had put forward and the
attitude it had adopted at both Conferences on the Law of the Sea in 1958
and 1960. Its representatives are recorded in the documents brought to
the Court’s attention as having proposed in the bilateral negotiations on
28 October 1960 the following:

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

For its part, the Government of the United Kingdom preferred that
disputes be referred to the International Court of Justice. Equally, the
representatives of Iceland, while having indicated their preference for
arbitration, expressed in later meetings, and specifically on 4 November
1960, their willingness to accept the International Court of Justice as the
appropriate forum. Subsequent exchanges of drafts consistently contained
a specific reference to the Court, which was finally included in the 1961
Exchange of Notes. In placing the terms of the proposed Exchange of
Notes before the Althing on 28 February 1961, the Government of Iceland
presented a memorandum which included the following statement con-
cerning this point:

11
11 FISHERIES JURISDICTION (JUDGMENT)

“The Government declares that it will continue to work for the
implementation of the Althing resolution of 5 May, 1959, regarding
the extensions of the fisheries jurisdiction around Iceland. Such an
extension would, however, be notified to the British Government six
months in advance, and if a dispute arises in connection with these
measures, this shall be referred to the International Court of Justice,
should either one of the parties request it.” (Emphasis added.)

19. The representatives of Iceland having accepted the proposal for
reference to the International Court of Justice, discussion continued as to
the precise formulation of the compromissory clause, including, in par-
ticular, the method whereby the agreement to have recourse to the Court
would be effected. On 3 December 1960 the Icelandic delegation is
recorded as having proposed the following text:

“The Icelandic Government will continue to work for the imple-
mentation of the Althing Resolution of May 5, 1959, regarding the
extension of fisheries jurisdiction around Iceland. Six months notice
will be given of the application of any such extension and in case of
dispute the measures will be referred to the International Court of
Justice.” (Emphasis added.)

The delegation of the United Kingdom proposed to insert in the last
phrase of this text the words “at the request of either party” in order to
make it clear that the jurisdiction of the Court could be invoked by means
of a unilateral application and need not require a joint submission by
both parties. This however was not immediately agreed to by the Icelandic
delegation. In a draft exchange of Notes put forward by the Government
of Iceland on 10 December 1960 it was proposed that the assurance
sought by the Government of the United Kingdom should be couched in
the following terms:

“Icelandic Government will continue to work for implementation
of the Althing Resolution of May 5, 1959, regarding extension of
fisheries jurisdiction around Iceland. Six months’ notice will be given
of application of any such extension and in case of dispute the
measures will, at the request of the several parties, be referred to the
International Court of Justice.” (Emphasis added.)

This proposal was not accepted by the Government of the United King-
dom, which on 16 December 1960 submitted a new text of the assurance
insisting on the words ‘at the request of either party”. This text was
finally agreed to by Iceland on 13 February 1961 and the words “‘at the
request of either party” thus appear in the compromissory clause of the
Exchange of Notes.

20. A further point of difference concerned the form to be given to the

12
12 FISHERIES JURISDICTION (JUDGMENT)

assurance contained in that clause. The proposal for a draft exchange of
Notes put forward by the Government of Iceland on 10 December 1960
was unacceptable to the Government of the United Kingdom for a
number of reasons set out in a Message by the Secretary of State for
Foreign Affairs delivered on 14 December 1960. Included among the
objections was the failure to frame the exchange as an agreement binding
on the parties. As stated in the Message:

ee

. the assurance should be set out in an Exchange of Notes
expressly stated to constitute an Agreement which would, in Her
Majesty’s Government’s view, be the only way of binding both
parties to accept the jurisdiction of the International Court of
Justice in the event of any dispute arising over extensions of fishery
jurisdiction. We regard this as essential if we are going to achieve
stability in our future fishery relations as we earnestly desire.”

In a letter addressed by the Secretary of State for Foreign Affairs of the
United Kingdom to the Foreign Minister of Iceland on 21 December
1960 it was also considered—

6e

. essential that the terms of the Assurance that any dispute on
future extensions of fishery jurisdiction beyond 12 miles would be
referred to the International Court of Justice, should be embodied
in a form which is an Agreement registered with the Secretariat of
the United Nations in accordance with the provisions of the Charter.
Article 102 of the Charter specifically provides that unless so
registered the Agreement cannot be invoked before any organ of
the United Nations.”

This proposal was finally accepted by the Icelandic Government, and the
last sentence of the Note of 11 March 1961 adäressed by the Foreign
Minister of Iceland to the British Ambassador reads as follows:

“YT have the honour to suggest that this Note and Your Excel-
lency’s reply thereto, confirming that its contents are acceptable to
the United Kingdom Government, shall be registered with the
Secretary-General of the United Nations in accordance with Article
102 of the United Nations Charter...”

This was agreed to in the Note sent on the same date by the British
Ambassador in Reykjavik to the Foreign Minister of Iceland. In its
memorandum to the Althing of 28 February 1961 the Government of
Iceland stated:

“Finally it is provided in the Note that it, together with the reply
of the British Government, where the British Government confirms
its contents, be registered with the Secretary-General of the United

13
13 FISHERIES JURISDICTION (JUDGMENT)

Nations. In Article 102 of the United Nations Charter it is stated
that only agreements that are so registered can be handled by the
International Court of Justice, should a dispute arise concerning
their implementation. This provision is a direct consequence of what
has been said about reference of the matter to the International
Court of Justice.”

The Exchange of Notes was registered by the Government of Iceland
with the Secretariat of the United Nations on 8 June 1961.

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

22. The idea of a six months’ notice to be given by Iceland was first
discussed on 3 December 1960 and was embodied in the formula advanced
by the Icelandic delegation on that same date, which is transcribed in
paragraph 19 above. This requirement of notice was agreed to by the
parties. It may be assumed that they considered that such a period would
allow sufficient time to settle the question through negotiations or, if no
settlement were reached, to submit the whole issue to the Court, in-
cluding, in accordance with the statutory powers possessed by the Court,
the applicability of the measures of exclusion to British vessels pendente
lite. Furthermore, the interpretation advanced in the letter of 29 May
1972 from the Minister for Foreign Affairs of Iceland to the Registrar of
the Court, intimating that the requirement of notice limited the right of
recourse to the Court to the eventuality that the Icelandic Government
should “‘without warning further extend the limits” (emphasis added),
does not correspond to the text of the compromissory clause, which
clearly relates to the extension of the limits and not to the notice of
extension. Such an interpretation is also to be discounted in the light of
the history of the negotiations.

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

14
14 FISHERIES JURISDICTION (JUDGMENT)

In consequence, the exercise of jurisdiction by the Court to entertain the
present Application would fall within the terms of the compromissory
clause and correspond exactly to the intentions and expectations of both
Parties when they discussed and consented to that clause. It thus appears
from the text of the compromissory clause, read in the context of the 1961
Exchange of Notes and in the light of the history of the negotiations, that
the Court has jurisdiction. It has however been contended that the agree-
ment either was initially void or has since ceased to operate. The Court
will now consider these contentions.

24. The letter of 29 May 1972 addressed to the Registrar by the
Minister for Foreign Affairs of Iceland contains the following statement:

“The 1961 Exchange of Notes took place under extremely difficult
circumstances, when the British Royal Navy had been using force
to oppose the 12-mile fishery limit established by the Icelandic
Government in 1958.”

This statement could be interpreted as a veiled charge of duress pur-
portedly rendering the Exchange of Notes void ab initio, and it was dealt
with as such by the United Kingdom in its Memorial. There can be little
doubt, as is implied in the Charter of the United Nations and recognized
in Article 52 of the Vienna Convention on the Law of Treaties, that
under contemporary international law an agreement concluded under
the threat or use of force is void. It is equally clear that a court cannot
consider an accusation of this serous nature on the basis of a vague
general charge unfortified by evidence in its support. The history of the
negotiations which led up to the 1961 Exchange of Notes reveals that
these instruments were freely negotiated by the interested parties on the
basis of perfect equality and freedom of decision on both sides. No fact
has been brought to the attention of the Court from any quarter sug-
gesting the slightest doubt on this matter.

25. In his letter of 29 May 1972 to the Registrar of the Court, the
Minister for Foreign Affairs of Iceland observed that the 1961 agreement
“‘was not of a permanent nature” and added that:

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

This observation, directed against the Court’s jurisdiction, appears to
15
15 FISHERIES JURISDICTION (JUDGMENT)

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

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

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

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

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

29. The above observations suffice to dispose of a possible objection
based on views expressed by certain authorities to the effect that treaties
of judicial settlement or declarations of acceptance of the compulsory

16
16 FISHERIES JURISDICTION (JUDGMENT)

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

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

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

17
17 FISHERIES JURISDICTION (JUDGMENT)

Prime Minister’s statement to the Althing on 9 November 1971, to the
effect that it was unlikely that the agreement would have been made if
the Government of Iceland had known how these matters would evolve.

32. While changes in the law may under certain conditions constitute
valid grounds for invoking a change of circumstances affecting the
duration of a treaty, the Icelandic contention is not relevant to the
present case. The motive which induced Iceland to enter into the
1961 Exchange of Notes may well have been the interest of obtaining
an immediate recognition of an exclusive fisheries jurisdiction to a
distance of 12 miles in the waters around its territory. [t may also be that
this interest has in the meantime disappeared, since a 12-mile fishery
zone is now asserted by the other contracting party in respect of its own
fisheries jurisdiction. But in the present case, the object and purpose of
the 1961 Exchange of Notes, and therefore the circumstances which
constituted an essential basis of the consent of both parties to be bound
by the agreement embodied therein, had a much wider scope. That object
and purpose was not merely to decide upon the Icelandic claim to
fisheries jurisdiction up to 12 miles, but also to provide a means whereby
the parties might resolve the question of the validity of any further claims.
This follows not only from the text of the agreement but also from the
history of the negotiations, that is to say, from the whole set of circum-
stances which must be taken into account in determining what induced
both parties to agree to the 1961 Exchange of Notes.

33. According to the memorandum submitted by the Government of
Iceland to the Althing on 28 February 1961, together with the proposed
Exchange of Notes, the agreement comprised:

‘“,,. four main points:

(1) Britain recognises immediately the 12 mile fishery zone of Ice-
land.

(2) Britain recognises important changes in the baselines in four
places around the country, which extends the fishery zone by
5065 square kilometres.

(3) British ships will be permitted to fish within specified areas
between the 6 and 12 mile limits for a limited period each year
during the next three years.

(4) The Government of Iceland declares that it will continue to
work for the implementation of the parliamentary resolution
of 5 May, 1959, regarding the extension of the fisheries juris-
diction around Iceland and that any dispute on actions that may
be taken, will be referred to the International Court of Justice.”

Undoubtedly certain of these provisions, such as those concerning
fishing in designated areas during a period of three years, had a transitory

18
18 FISHERIES JURISDICTION (JUDGMENT)

character and may be considered to have become executed. But in
contrast there are other provisions which do not possess that same tran-
sitory character. The compromissory clause is an instance.

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

35. In his letter of 29 May 1972 to the Registrar, the Minister for
Foreign Affairs of Iceland refers to ‘‘the changed circumstances resulting
from the ever-increasing exploitation of the fishery resources in the seas
surrounding Iceland”. Judicial notice should also be taken of other
statements made on the subject in documents which Iceland has brought
to the Court’s attention. Thus, the resolution adopted by the Althing on
15 February 1972 contains the statement that “‘owing to changed cir-
cumstances the Notes concerning fishery limits exchanged in 1961 are no
longer applicable”.

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

37. One of the basic requirements embodied in that Article is that the

19
19 FISHERIES JURISDICTION (JUDGMENT)

change of circumstances must have been a fundamental one. In this
respect the Government of Iceland has, with regard to developments in
fishing techniques, referred in an official publication on Fisheries Juris-
diction in Iceland, enclosed with the Foreign Muinister’s letter of 29 May
1972 to the Registrar, to the increased exploitation of the fishery re-
sources in the seas surrounding Iceland and to the danger of still further
exploitation because of an increase in the catching capacity of fishing
fleets. The Icelandic statements recall the exceptional dependence of that
country on its fishing for its existence and economic development. In his
letter of 29 May 1972 the Minister stated:

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

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

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

38. The invocation by Iceland of its “vital interests’, which were not
made the subject of an express reservation to the acceptance of the juris-
dictional obligation under the 1961 Exchange of Notes, must be inter-
preted, in the context of the assertion of changed circumstances, as an
indication by Iceland of the reason why it regards as fundamental the
changes which in its view have taken place in previously existing fishing
techniques. This interpretation would correspond to the traditional view
that the changes of circumstances which must be regarded as fundamental
or vital are those which imperil the existence or vital development of one
of the parties.

39. The Applicant, for its part, contends that the alterations and
progress in fishing techniques have not produced in the waters around
Iceland the consequences apprehended by Iceland and therefore that the
changes are not of a fundamental or vital character. In its Memorial, it
points out that, as regards the capacity of fishing fleets, increases in the
efficiency of individual trawlers have been counter-balanced by the
reduction in total numbers of vessels in national fleets fishing in the
waters around Iceland, and that the statistics show that the total annual
catch of demersal species has varied to no great extent since 1960.

40. The Court, at the present stage of the proceedings, does not need
20
20 FISHERIES JURISDICTION (JUDGMENT)

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

41. It should be observed in this connection that the exceptional
dependence of Iceland on its fisheries for its subsistence and economic
development is expressly recognized in the 1961 Exchange of Notes, and
the Court, in its Order of 17 August 1972, stated that ‘‘it is also necessary
to bear in mind the exceptional dependence of the Icelandic nation upon
coastal fisheries for its livelihood and economic development as ex-
pressly recognized by the United Kingdom in its Note addressed to the
Foreign Minister of Iceland dated 11 March 1961”. The Court further
stated that “from this point of view account must be taken of the need
for the conservation of fish stocks in the Iceland area” (7.C.J. Reports
1972, pp. 16 and 17). This point is not disputed.

42. Account must also be taken of the fact that the Applicant has
contended before the Court that to the extent that Iceland may, as a
coastal State specially dependent on coastal fisheries for its livelihood or
economic development, assert a need to procure the establishment of a
special fisheries conservation régime (including such a régime under
which it enjoys preferential rights) in the waters adjacent to its coast but
beyond the exclusive fisheries zone provided for by the 1961 Exchange of
Notes, it can legitimately pursue that objective by collaboration and
agreement with the other countries concerned, but not by the unilateral
arrogation of exclusive rights within those waters. The exceptional
dependence of Iceland on its fisheries and the principle of conservation
of fish stocks having been recognized, the question remains as to whether
Iceland is or is not competent unilaterally to assert an exclusive fisheries
jurisdiction extending beyond the 12-mile limit. The isue before the
Court in the present phase of the proceedings concerns solely its juris-
diction to determine the latter point.

* *

21
21 FISHERIES JURISDICTION (JUDGMENT)

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

44, In the United Kingdom Memorial it is asserted that there is a flaw
in the Icelandic contention of change of circumstances: that the doctrine
never operates so as to extinguish a treaty automatically or to allow an
unchallengeable unilateral denunciation by one party; it only operates
to confer a right to call for termination and, if that call is disputed, to
submit the dispute to some organ or body with power to determine whether
the conditions for the operation of the doctrine are present. In this
connection the Applicant alludes to Articles 65 and 66 of the Vienna
Convention on the Law of Treaties. Those Articles provide that where
the parties to a treaty have failed within 12 months to achieve a settle-
ment of a dispute by the means indicated in Article 33 of the United
Nations Charter (which means include reference to judicial settlement)
any one of the parties may submit the dispute to the procedure for con-
ciliation provided in the Annex to the Convention.

45. In the present case, the procedural complement to the doctrine of
changed circumstances is already provided for in the 1961 Exchange of
Notes, which specifically calls upon the parties to have recourse to the
Court in the event of a dispute relating to Iceland’s extension of fisheries
jurisdiction. Furthermore, any question as to the jurisdiction of the
Court, deriving from an alleged lapse through changed circumstances,
is resolvable through the accepted judicial principle enshrined in Article
36, paragraph 6, of the Court’s Statute, which provides that “‘in the event
of a dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court”. In this case such a dispute obviously
exists, as can be seen from Iceland’s communications to the Court, and

22
22 FISHERIES JURISDICTION (JUDGMENT)

to the other Party, even if Iceland has chosen not to appoint an Agent,
file a Counter-Memorial or submit preliminary objections to the Court’s
jurisdiction; and Article 53 of the Statute both entitles the Court and, in
the present proceedings, requires it to pronounce upon the question of its
jurisdiction. This it has now done with binding force.

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

finds that it has jurisdiction to entertain the Application filed by the
Government of the United Kingdom of Great Britain and Northern
Ireland on 14 April 1972 and to deal with the merits of the dispute.

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

(Signed) ZAFRULLA KHAN,
President.

(Signed) S. AQUARONE,
Registrar.

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

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

The sole question before the Court in this phase of these proceedings
is whether, in view of the compromissory clause in the Exchange of Notes
of 11 March 1961 between the Government of the United Kingdom and
the Government of Iceland, read with Article 36 (J) of its Statute, the

23
23 FISHERIES JURISDICTION (DECL. ZAFRULLA KHAN)

Court is competent to pronounce upon the validity of the unilateral ex-
tension by Iceland of its exclusive fisheries jurisdiction from 12 to 50
nautical miles from the baselines agreed to by the parties in 1961. All
considerations tending to support or to discount the validity of Iceland’s
action are, at this stage, utterly irrelevant. To call any such consideration
into aid for the purpose of determining the scope of the Court’s jurisdic-
tion, would not only beg the question but would put the proverbial cart
before the horse with a vengeance and is to be strongly deprecated.

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

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

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

24


95

DISSENTING OPINION BY M. ALTAMIRA.
(Translation. ]

I regret that I am unable to agree with the foregoing judgment.
I therefore consider it my duty both to the Court and to my
conscience to state the reasons which prevent me from subscribing
not only to the operative part but also to several of the grounds
on which it is based.

It is certain that amongst the most widely recognized principles
of international law are the principles that the jurisdiction of a
State is territorial in character and that in respect of its nationals
a State has preferential, if not sole jurisdiction. It is also certain
that, arising out of the very natural combination of these two
principles, persistent and well known efforts have been made to
extend their field of application beyond the purely geographical
conception of territorial limits, by causing them as it were to
accompany, as a protecting shadow, the persons of a State’s
nationals on their travels, in so far as has been possible under the
material conditions of international intercourse.

Therefore, exceptions to these principles, in so far as they allow
a foreign jurisdiction to be exercised over the citizens of a given
State, have only been recognized in extreme cases where it has been
absolutely necessary or inevitable. This applies for instance to the
case of a general need of mankind or of a common danger (the slave
trade, piracy, etc.), and also to the want of conformity with the
territorial principle itself which would ensue were the jurisdiction
of other States not allowed to operate in the case of foreigners who
having entered the territory of such States in order to reside there
for a certain period and carry on their occupations there, commit
acts bringing them within the arm of the law. But directly one of
these fundamental reasons fails to apply, the principle of the terri-
torial jurisdiction of the country of origin recovers its force. That
is why I should have much difficulty in recognizing as well founded
an attempt for instance on the part of a court, on the basis of a
municipal law, to exercise jurisdiction over a foreigner, who resided
JUDGMENT No. 9.—DISSENTING OPINION BY M. ALTAMIRA 96

on board a vessel flying the flag of his own country and did not land
with the intention of remaining ashore, and that for an alleged
offence committed outside the territory of the country which
claimed to exercise jurisdiction over him. Such an extension of
the exceptions hitherto accepted in respect of the principle of
territorial and national jurisdiction appears to me to be altogether
unwarranted.

There can be no doubt that exceptions of this nature must
necessarily be exceptions recognized by international law, that is
to say, they must have their origin in relations between sovereign
States, either in the form of a treaty or of international custom.
It is not without interest to observe here that a custom must by its
nature be positive in character and that consequently it is impossible
to classify as a custom the fact that in a certain respect there is a
total absence of the recurrence of more or less numerous precedents
which are generally regarded as necessary to establish a custom.
The rule which it is desired to discover must be positively supported
by the acts which have occurred, and, of course, as regards inter-
national law these acts must also be international in character.

It follows that the municipal legislation of different countries,
as it does not by its nature belong to the domain of international
law, is not capable of creating an international custom, still less a
law. Of course it may touch and in fact does in several respects
touch upon legal questions which affect or may affect other States
or foreign subjects, and thus it encroaches upon a domain which is
practically speaking international. But it cannot simply on this
ground be held to possess a character placing it on the same plane
as conventions or international customs. _

It may however be of considerable value in showing what in
actual fact is the opinion of States as concerns certain international
questions in regard to which States have not yet committed them-
selves by means of a convention prohibiting them from enacting a
municipal law in conflict with the obligation assumed, or in regard .
to which no custom recognized by States has so far been built up.
It is only in this way that it is legitimate to use municipal legislation
and to apply it for the purposes of a question like that under
consideration. It is of no value for any other purpose in connection
with international law,—unless it has been duly ascertained that
general agreement prevails,—because it only expresses the wish or
JUDGMENT No. 9.—DISSENTING OPINION BY M. ALTAMIRA 97

intention of one State in the form of a municipal rule representing
the opinion of a greater or smaller majority of the political com-
munity constituting a nation. For these reasons it is of particular
interest to ascertain whether, —in cases where it has been sought,
contrary to a general principle of international law not established
by convention or custom, to impose such legislation in concrete
form upon other States, —the attempt, whether simply intended
or actually carried out, has encountered consent or protest on the
part of the consensus of opinion in the country affected. Leaving
aside all difficulties of this kind which are so general in character as
to be too remote from the category of questions to which the collision
case under consideration belongs and which would therefore be
of little value as a basis for the solution of the particular question
before us, I will begin by saying that, within the limits of the
precedents considered by the Parties, what I find in general is
either that there has been protest against the exercise of any juris-
diction other than that of the nation of the person alleged to be
responsible or of the flag under which he sails, or else that this
principle of the flag has been applied.

An analysis of these precedents produces the following result :

I. Cases where governments as such have protested.
1. Cutting’s case.—2. Léon XIII,

II. Cases where the protest has been made by the local courts or
authorities of the State of the person convicted.

1. Ortigia—Oncle-Joseph—2. Hamburg.

Ill. Cases where a State, through either its government or a tribunal,
has recognized in the particular case the prior claim of the jurisdiction
of the flag of another State.

1. Costa Rica Packet.—2. Francoma—3. Créole.—4. The Bor-
deaux judgment.—5. The Santiago de Chile judgment.—6. The
judgment of the Court of Appeal of Turin (1903).

In spite of the differences in character which these ten cases
present from other points of view, it will be found that they all
agree in that they invoke, or recognize (which is the same thing),
the prior or exclusive claim of the law of the flag as regards certain
acts done on board a ship. It is only for this reason that they are
cited here ; and the very diversity of the questions of jurisdiction
JUDGMENT No. 9.—DISSENTING OPINION BY M. ALTAMIRA 98

which they concern only serves to affirm the importance of the prin-
ciple which unites them. There are certainly cases with a contrary
tendency such as the Bruges or West-Hinder case, but of all those
cited the majority are certainly in favour of the principle indicated
above. | |

It must also be admitted that there are only two cases where
governments themselves have protested ; but I do not see that it
is necessary, for the purposes of the present question, that govern-
ments should always be the mouthpiece for the expression of a
legal opinion prevailing in a country. The small number of
protests by governments can in my opinion be easily explained.
It is due firstly to the infrequency of the occasions on which
encroachments upon jurisdiction have actually occurred, judging
from the cases known and cited by the Parties. It is due above
all to the frequency with which governments (and especially
those of some countries) have shown themselves insensible to the
injury sustained by their subjects as a result of occurrences abroad.
Almost every country has a long and unhappy experience in this
connection. Either from indolence or from anxiety to avoid diplo-
matic complications or for other reasons, political rather than legal,
governments often refrain from openly protecting their subjects and
only make up their minds to do so when things have developed into
a public scandal, or when the injured persons have made great
and persistent efforts to attract the attention of political circles
in their country. Failing such intervention by governments,
sometimes municipal courts have intervened and certainly no one
will refuse to recognize these as officially representing the legal
opinion of their country.

Again, some of the cases cited under No. III, though in a form
other than that of a protest for which there was no occasion, have
the same essential significance as those set out under No. I.

In view of the foregoing, I have a very strong hesitation to admit,
as a matter of course, and as subject to no doubt, exceptions
to the territorial principle (in the application of that principle to
the present case), exceptions which it is sought, simply by the will
of one State, to extend beyond the limits of those hitherto expressly
agreed to in conventions, or tacitly established by means of the
recurrence of certain clearly defined and undisputed cases in the
majority of systems of municipal law.
JUDGMENT No. 9.—-DISSENTING OPINION BY M. ALTAMIRA 99

In regard to criminal law in general, it is easy to observe that in
municipal law, with the exception of that of a very small number
of States, jurisdiction over foreigners for offences committed abroad
has always been very limited : It has either (1) been confined to
certain categories of offences ;.or (2) been limited, when the scope
of the exception has been wider, by special conditions under which
jurisdiction must be exercised and which very much limit its effects.
It is but seldom that, on this hypothesis, jurisdiction over foreigners
in respect of offences committed abroad is claimed in general terms *
without even formal limits or with limits such as that represented
by a minimum penalty, which only very remotely correspond to the
question of jurisdiction arising under international law.

As regards the categories of disputes contemplated by the
exceptions and to which I alluded just now, it may readily be
observed that for the most part these comprise offences against
the State itself. Again, it seems to me that even when an exception
to the territorial principle has been extended to cover offences
against individuals by application of the principle of the protection
of nationals (which is the principle which is most likely to come into
conflict with the territorial principle), the municipal legislation in
question has been visibly designed to cover offences properly so-
called—i.e. those in which evil intent and perversity constitute the
outstanding characteristic—and especially more serious offences
constituting crimes (as regards offences of violence), as well ascertain |
offences of a financial character in which the circumstances
characteristic of the category of offences producing their effects at
a distance (délits à distance) are present. I cannot believe that
the legislations of which I am now speaking have ever been
' really intended to apply to every kind of offence, even the smallest
and most unintentional.

I fully realize that a limit as regards the seriousness of offences
has been fixed in the case of some of the most advanced legisla-
tions, by means of stating the minimum penalty applicable to the
offences contemplated. But it is very rare to find in such legisla-
tions at the same time a-limit fixing the lowest penalty applicable
and a complete absence of conditions of form, such as default of
extradition or need for a special order from the Head of-the State

13
JUDGMENT No. O.—-DISSENTING OPINION BY M. ALTAMIRA 100

or other similar conditions. In other words, even in the case of
the most far-reaching legislations as regards the extension of
jurisdiction to foreigners for offences committed abroad, the
States concerned have not ventured in most cases simply to
formulate their claim without limiting its scope in any way.

I have prepared a table of the municipal legislation of a number
of countries which, subject to the existence of unnoticed errors,
would be as follows: | .

I. Legislation in general terms of wide scope.

I. Italy.—2. Turkey.—3. China.—4. Mexico. It is to be noticed
that the terms used in these four cases are not equally stringent.
Apart from other differences which might be mentioned, there are
differences as regards the minimum penalty necessary to bring
jurisdiction into play.

To the four cases above mentioned might perhaps be added the
legislation of Brazil and Uruguay, subject to certain questions of
interpretation raised by the terms used, which there is no object
in discussing for the moment. The German draft of 1913, like
the laws of the four countries above mentioned, employs general
terms of wide scope.

II. Legislation defining the categories of offences in the case of
which jurisdiction is to be exercised over foreigners for offences against
individuals committed abroad. |

1. Argentine, Article25. The wording appears comprehensive
but in reality there is a very definite limitation. —2. Belgium. —.

Japan.

III. Legislation making the possibility of prosecution dependent
on certain conditions which limit its application.

(a) The offence to be one for which extradition may be demanded :
1. Switzerland.—2. Sweden (draft).—3. The Lima Proposals.

(0) The prosecution of the offence in question to be ordered by the
Head of the State or by law: 1. Finland.—. Norway.—3. Sweden
(law in force). —4. Germany (as regards contraventions).—5. Austria
(draft)..
JUDGMENT No. 9.—-DISSENTING OPINION BY M. ALTAMIRA I0I

(c) Extradition to have been asked for but refused (that is to
say, it must have been possible) : Bulgaria (the minimum penalty
under Bulgarian legislation is imprisonment).

IV. Legislation very vague in tts terms.

Germany (draft proposal) ; § 6 contains the apparently condi-
tional phrase “may be prosecuted”. .

V. Legislation not conferring jurisdiction over offences against
individuals,

I. Germany (as regards crimes and offences as opposed to simple
contraventions).—2. United States.—3. Spain.—4. France.— |
5. Great Britain.—6. Netherlands.—7. Paraguay.—8. Dominican
Republic.—o. Siam.

To these Denmark might be added, subject to the interpretation
of the phrase “port of register” (port d’attache) in $ 3. Also Egypt,
subject to the interpretation of Rule 4. I have not included in
this list the legislation of Soviet Russia or Monaco or the Polish draft
proposals because the classification of these in one of the above
five groups is, in my opinion, very much open to doubt and because
with the information available to us it would be rash to come to
any conclusion concerning them.

*
* *

The examples considered—both those belonging to interna-
tional law and those which, whilst being derived from municipal
law, relate to situations concerning foreigners and acts committed
abroad—tend to show the existence of a predominent conception
and intention in this field of criminal law which concerns cases
of an international character. This conception and intention
are undoubtedly opposed to simply allowing the application of
municipal law which, by claiming too wide a scope, comes in
conflict with the territorial principle which protects the rights of the
citizens of each State, and seeks to go much further than the
exceptions held to be acceptable by the majority of States.

Of course, every sovereign State may by virtue of its sovereignty
legislate as it wishes within the limits of its own territory; but
JUDGMENT No. 9.—DISSENTING OPINION BY M. ALTAMIRA 102

it cannot, according to sound principles of law, in so doing impose
its laws upon foreigners in every case and without making any
distinction between the various possible circumstances as regards
the place where the offence has been committed, the nature and
seriousness of the offence, the special conditions under which a.
foreigner may happen at a given moment to be within reach of the
authorities of a foreign country on the territory of which the
offence of which he has been accused was not committed, and
other conditions besides.
II.

But even admitting hypothetically the absence of a principle of
international law express or implied, which would have been
infringed by the manner in which the Turkish authorities acted as
regards Lieutenant Demons, I am unable to discover any grounds
for altering my view. And the following is the reason.

The contention of those who held the contrary view—which we are
now going to examine—may, if I am not mistaken, be summarized
as follows: Since no principle exists establishing the exclusive
criminal jurisdiction of the law of the flag in cases of collision upon
the high seas, we are faced with two concurrent jurisdictions.
Consequently, each of these jurisdictions may take effect within
the limits of its natural sphere of operation—namely within its
own territorial area—upon foreigners who are there and may also
therefore apply to them such municipal law as each State may have
adopted by virtue of that freedom which no other principle of
international law prevents them from exercising in this respect.

It is not irrelevant to remark in passing that all or almost all
principles of international law have the common characteristic
of not being invariably exclusive in character. There ‘is no more
reason for mentioning or considering this characteristic in reasoning
in relation to the principle of territoriality or of the flag than in
relation to the principle of protection. If one accepts, as is
necessary, the exceptions to the first two, it must also be admitted
that the third, like all such principles, must have exceptions and
must undergo restrictions in its competition with the others.
Consequently the fact that, generally speaking, a principle is not
exclusive in character does not involve the consequence that it
can never be so when confronted by another principle, and
still less in relation to a municipal law.
JUDGMENT No. 9.—DISSENTING OPINION BY M. ALTAMIRA 103

But, to return to the exception which has been suggested to the
principle of the flag—which is only another aspect of the principle
of territoriality —the question must be put whether it can come into
play in the case now before the Court in the way indicated above
according to the view I am discussing. I do not think so. In my
opinion, the freedom which, according to the argument put forward,
every State enjoys to impose its own laws relating to jurisdiction
upon foreigners is and must be subject to limitations. In the
case of competing claims to jurisdiction such as those in ques-
tion (according to those who recognize the existence of such
competition), this freedom is conditioned by the existence of the
express or tacit consent of other States and particularly of the
foreign State directly interested. As soon as these States protest,.
the above-mentioned freedom ceases to exist, and, subject to the
result of the investigation of the dispute which has so arisen,
any acts which were done in pursuance of such freedom lose
the legal basis which they might otherwise have possessed. It is
impossible to create an international custom, or to presume the
. existence of any rule in favour of the unlimited freedom of
each legislation as regards foreigners, and binding on all other
States, except within the same limits and subject to the
same conditions as any other international rule or custom.
The necessity for consent is just as much a fundamental principle
of international law, which is entirely based on the will of States,
as the principle of the protection of nationals or of the freedom to
legislate internally. Consequently, the consent of the interested
State must be requisite in every case belonging to the category
I am now considering and a forhori, its express dissent must
be taken into account. If, as in the present case, the latter altern- .
ative takes place, the competition in the claims to jurisdiction
cannot legitimately have the effect of favouring a claim which has
been protested against and which, moreover, would not be in
harmony with the preponderating opinion of most States in regard
to the kind of cases contemplated according to what has been shown
above. To accept the contrary view would, in my opinion, be to
neglect one of the fundamental conditions of the international
community and would result in opening the door to continual
conflicts which might involve most undesirable consequences.

Such a result being, in my opinion, inadmissible from the point
of view of international law and of its essential aims which are the
JUDGMENT No. 9.—-DISSENTING OPINION BY M. ALTAMIRA 104

establishment of reciprocal good relations between States, the
causes which would produce that result cannot be sanctioned,
Any decision leading to the establishment of a system of unre-
stricted freedom in States which would lead to the consequences
I have just outlined, would therefore be very serious. Even where
a very circumscribed and particular case was concerned, there would,
in such a conclusion, be a risk of giving rise almost inevitably to
dangerous constructions and applications. In spite of all the
provisoes that might be added, it would be very difficult, I think,
in view of the shifting ground upon which the case rests, to prevent
the decision being construed in a manner going beyond its
underlying intention.

For all these reasons, I am led to conclude that a State which,
under the circumstances of the Lotus case, acts so as to impose,
by virtue of the principle of the admitted freedom in internal
legislation, and in disregard of the principle whereby consent is
requisite, further exceptions to another principle, in this particular
case the principle of territoriality, will have acted in contravention
of international law.

Il

Outside the particular sphere of this law, but still within the
sphere of human rights (the law of Nature), I find other grounds
for being unable to accept the sanctioning of the rule of absolute
freedom. These grounds are derived from what, in my opinion,
constitutes the basis of the whole social legal system : respect for
the rights of. the individual. This respect takes precedence of
everything else. If it is absent, everything else falls to the ground
and ceases to have any juristic foundation. Now, it is undoubtedly
true that a failure to respect such rights takes place in many cases
through the fact of constraint being imposed upon a man, partic-
ularly if he is not a criminal, to submit to the effects of laws which
are not those of the community to which he belongs, of laws which
he does not know and which are applied in his case by entirely
foreign judges by whom he cannot make himself understood, except,
in the most favourable conditions, through a third person, because
he does not know their language, their legal mentality, the forms
of procedure they employ, etc.
JUDGMENT No. 9.—DISSENTING OPINION BY M. ALTAMIRA I05

In all periods of history, men have considered the application of
their own laws and of their own national procedure and the submis-
sion of their judicial affairs to judges speaking their own language
and having their own nationality, to be just as important a pledge of
their rights as is in quite another respect the due appreciation
of the particular circumstances surrounding the facts under consi-
deration, which very often lead to the mitigation of the punish-
ment prescribed in principle. Those who belong to nations in
which more than one language is spoken and in which more than
one legal system ‘is recognized as valid by the courts, are well
aware of the great weight which is sometimes attached to the fact
that they are amenable to one court rather than to another.
On many occasions this subject has been amongst the most pressing
claims of the various regions and groups of the complex population
of the countries to which I refer.

It goes without saying that I do not mean to allude, as I have
already said, to cases in which an individual has voluntarily changed
his residence in order to go to a country other than his own with
the intention of remaining there for a more or less protracted
period, in full knowledge of the fact that this action will have the
effect of subjecting a great number of his actions to a new law.
Nor, again, do I refer to the cases comprised within the clearly
recognized exceptions to the principle of territoriality, which are
well founded upon the requirements of public order and justice.
But I am unable conscientiously to accept or to lend my support
to any action leading to the acceptance of a constraint of the kind
described a little earlier, and in which Lieutenant Demons’ case
is included. And do not let us forget that the question before us is
not that of the punishment of an offence which a collision might
result in, but that of the competence of the Turkish tribunal to hear
the case, that is to say, a question relating to jurisdiction. We
have not to solve the problem of the necessity at law for a more
or less severe punishment of the material results of an involuntary
collision, nor the difference in this respect between the offence,
considered subjectively, and its consequences as regards other
persons or other things, but purely a problem of determining juris-
diction in accordance with the fundamental principles of inter-
national law. :

In the same order of thought but from another point of view,
I find equally menacing to the rights of man the claim to apply
JUDGMENT No. 9.—DISSENTING OPINION BY M. ALTAMIRA 106

the same rules as might be fair in the case of most true offences,
to an involuntary offence even if its injurious effects went so far
as to cause the death of a man. The incompatibility of such
application with the rights to which I have just referred is still
greater when the alleged act arises from a mistake, which, as is
frequently the case in collisions, has not perhaps been committed
by a single person on board one of the vessels, but by different
persons on board both ships in collision. What I am unable to
accept in this case is the application of jurisdictional rights which
would result in the jurisdictional constraint which I have described.
In my view international law in order to be real Jaw must not be
in contradiction with the fundamental principles of legal order,
one of which necessarily is the rights of man taken as a whole.
I am convinced that every time that a result of this nature is
reached, one is faced with something wanting in regularity, which
should be rejected.

IV.

Before concluding, I should like to bring forward some consider-
ations which deal with a very important matter as regards the
functions of the Court. I am convinced that the problem of the
exceptions to the principle of territoriality in regard to criminal
jurisdiction in collision cases as it stands at present—particularly
in regard to collisions with no criminal intent—offers a sufficient
number of elements to enable one to conclude that to act in the
manner in which the Turkish authorities have done in the Lotus
case is contrary to the intention underlying the exceptions to this
principle which have been agreed to, or which the majority of States
would apparently be ready to agree to. But even if the question
were raised of the necessity for a definitely specific custom and of
the stage of development reached by the custom which might be
considered necessary in the present connection, I would point out
that the conditions particular to the general process of the develop-
ment of a customary rule must be borne in mind. Often in this
process there are moments in time in which the rule, implicitly
discernible, has not as yet taken shape in the eyes of the world,
but is so forcibly suggested by precedents that it would be
rendering good service to the cause of justice and law to assist its
JUDGMENT No. 9.—DISSENTING OPINION BY M. ALTAMIRA 107

appearance in a form in which it will have all the force rightly
‘belonging to rules of positive law appertaining to that category.

Perhaps the present case offers such a moment and, at the same
time, an opportunity which it would be regrettable to lose. But I
do not think it is necessary to lay stress on this side of the ques-
tion, in view of the conclusion at which I have arrived on. the
particular grounds on which the question submitted to the Court
is based. I will confine myself to pointing it out as a method
which in my opinion might lead by another path to the same
result which has induced me to dissent from the judgment given
by the Court. :