INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

FISHERIES JURISDICTION CASE

(FEDERAL REPUBLIC OF GERMANY v. 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

(REPUBLIQUE FEDERALE D’ALLEMAGNE c. ISLANDE)

FOND

ARRET DU 25 JUILLET 1974
Official citation:

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland),
Merits, Judgment, I.C.J. Reports 1974, p. 175.

Mode officiel de citation:

Compétence en matiére de pécheries (République fédérale d’ Allemagne
c. Islande), fond, arrêt, C.I.J. Recueil 1974, p. 175.

Sales number
NO de vente: 396

25 JULY 1974

JUDGMENT

FISHERIES JURISDICTION CASE
(FEDERAL REPUBLIC OF GERMANY v. ICELAND)
MERITS

AFFAIRE DE LA COMPETENCE
EN MATIERE DE PECHERIES

(REPUBLIQUE FEDERALE D’ALLEMAGNE c. ISLANDE)
FOND

25 JUILLET 1974
ARRET
1974

25 July
General List

No. 56

175

INTERNATIONAL COURT OF JUSTICE
YEAR 1974
25 July 1974

FISHERIES JURISDICTION CASE

(FEDERAL REPUBLIC OF GERMANY v. ICELAND)
MERITS

Failure of Party to appear—Statute, Article 53.

History of the dispute—Jurisdiction of the Court—Effect of previous finding
of jurisdiction—Interpretation 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 Federal Republic of Germany—Regulations of
14 July 1972 not opposable to Federal Republic—Reconciliation of preferential
rights of coastal State and rights of other fishing States—Obligation to keep
conservation measures of fishery resources under review—Negotiation required
for equitable solution—Obligation to negotiate flowing from nature of Parties’
respective rights—Various factors relevant to the negotiation—Position of
Parties pending conclusion of negotiations.

Claim for compensation for interference with fishing vessels—Jurisdiction of
Court—Submission presented in abstract form— Need for concrete submission
as to existence and amount of damage—Impossibility of all-embracing finding
of liability in this case.

JUDGMENT

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

In the Fisheries Jurisdiction case,
between

the Federal Republic of Germany,
represented by

Dr. G. Jaenicke, Professor of International Law in the University of
Frankfurt am Main,

as Agent and Counsel,
assisted by

Dr. D. von Schenck, Head of the Legal Department, Ministry of Foreign
Affairs,
Mr. G. Môcklinghoff, Ministry of Food, Agriculture and Forestry,

Dr. C. A. Fleischhauer, Ministry of Foreign Affairs,
Dr. D. Booss, Ministry of Food, Agriculture and Forestry,
Dr. Kaufmann-Biihler, Ministry of Foreign Affairs,

as Counsel and Advisers,

and by

Dr. Arno Meyer, Federal Institute for Fisheries Research,
as Counsel and Expert,

and

the Republic of Iceland,

THE Court,
composed as above,
delivers the following Judgment:

1. By a letter of 26 May 1972, received in the Registry of the Court on
5 June 1972, the State Secretary of the Foreign Office of the Federal Republic
of Germany transmitted to the Registrar an Application instituting proceed-
ings against the Republic of Iceland in respect of a dispute concerning the
then proposed extension by the Government of Iceland of its fisheries juris-

iction.

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 27 June 1972 from the Minister for Foreign Affairs
of Iceland, received in the Registry on 4 July 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.

4. On 21 July 1972, the Agent of the Federal Republic of Germany 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

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177 FISHERIES JURISDICTION (JUDGMENT)

Order dated 12 July 1973, the Court confirmed that those measures should,
subject as therein mentioned, remain operative until the Court has given
final judgment 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 Federal Republic of Germany
and a Counter-Memorial by the Government of Iceland. The Memorial of
the Government of the Federal Republic 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. On 8 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 on behalf of the Government of the Federal Re-
public of Germany. 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 Federal Republic of
Germany 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 1 August 1973 for the Memorial
of the Government of the Federal Republic and 15 January 1974 for the
Counter-Memorial of the Government of Iceland. The Memorial of the
Government of the Federal Republic of Germany 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
Federal Republic of Germany was invited to submit to the Court any observa-
tions which the Government of the Federal Republic might wish to present on
the question of the possible joinder of this case with the case instituted on
14 April 1972 by the United Kingdom against the Republic of Iceland
(General List No. 55) and the Agent was informed that the Court had fixed
30 September 1973 as the time-limit within which any such observations
should be filed. By a letter dated 25 September 1973, the Agent of the Federal
Republic 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 Federal Republic on
possible 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 United Kingdom
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 between their respective submissions, and that joinder would be con-
trary 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 28 March and 2 April 1974, after due notice to the Parties, public
hearings were held in the course of which the Court was addressed by the
Agent and counsel and by a counsel and expert on behalf of the Federal
Republic of Germany on the merits of the case; the Government of Iceland

6
178 FISHERIES JURISDICTION (JUDGMENT)

was not represented at the hearings. Various Members of the Court addressed
questions to the Agent of the Federal Republic during the course of the
hearings, and replies were given either orally at the hearings or in writing.
Copies of the verbatim record of the hearings and of the written replies to
questions were transmitted to the Government of Iceland.

10. The Court does not include upon the bench any judge of the national-
ity of either of the Parties. However, the Government of Iceland did not
indicate any intention to avail itself of the right conferred upon it by Article
31, paragraph 3, of the Statute of the Court; and in the present phase of the
proceedings the Agent for the Federal Republic of Germany informed the
Court in the above-mentioned letter dated 25 September 1973 that, taking
account of the fact that the Government of Iceland was declining to take part
in the proceedings and to avail itself of the right to have a judge ad hoc on the
bench, the Government of the Federal Republic, as long as that situation
persisted, did not feel it necessary to insist on the appointment of a judge
ad hoc.

11. The Governments of Argentina, Australia, India, New Zealand,
Senegal and the United Kingdom 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. Pur-
suant 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.

12. In the course of the written proceedings, the following submissions
were presented on behalf of the Government of the Federal Republic of
Germany:

in the Application:

“The Federal Republic of Germany asks the Court to adjudge and
declare:

(a) That the unilateral extension by Iceland of its zone of exclusive
fisheries jurisdiction to 50 nautical miles from the present baselines,
to be effective from | September 1972, which has been decided upon
by the Parliament (Althing) and the Government of Iceland and
communicated by the Minister for Foreign Affairs of Iceland to the
Federal Republic of Germany by aide-mémoire handed to its
Ambassador in Reykjavik on 24 February 1972, would have no
basis in international law and could therefore not be opposed to the
Federal Republic of Germany and to its fishing vessels.

(6) That if Iceland, as a coastal State specially dependent on coastal
fisheries, establishes a need for special fisheries conservation
measures in the waters adjacent to its coast but beyond the exclusive
fisheries zone provided for by the Exchange of Notes of 1961, such
conservation measures, as far as they would affect fisheries of the
Federal Republic of Germany, may not be taken, under interna-
tional law, on the basis of a unilateral extension by Iceland of its
fisheries jurisdiction, but only on the basis of an agreement between
the Federal Republic of Germany and Iceland concluded either
bilaterally or within a multilateral framework.”
179 FISHERIES JURISDICTION (JUDGMENT)

in the Memorial on the merits:
“May it please the Court to adjudge and declare:

1. That the unilateral extension by Iceland of its zone of exclusive
fisheries jurisdiction to 50 nautical miles from the present baselines,
put into effect by the Regulations No. 189/1972 issued by the Ice-
landic Minister for Fisheries on 14 July 1972, has, as against the
Federal Republic of Germany, no basis in international law and can
therefore not be opposed to the Federal Republic of Germany and the
fishing vessels registered in the Federal Republic of Germany.

2. That the Icelandic Regulations No. 189/1972 issued by the Icelandic
Minister for Fisheries on 14 July 1972, and any other regulations
which might be issued by Iceland for the purpose of implementing
Iceland’s claim to a 50-mile exclusive fisheries zone, shall not be
enforced against the Federal Republic of Germany, vessels registered
in the Federal Republic of Germany, their crews and other persons
connected with fishing activities of such vessels.

3. That if Iceland, as a coastal State specially dependent on its fisheries,
establishes a need for conservation measures in respect to fish stocks
in the waters adjacent to its coast beyond the limits of Icelandic
jurisdiction agreed to by the Exchange of Notes of 19 July 1961, such
conservation measures, as far as they would affect fishing activities by
vessels registered in the Federal Republic of Germany, may not be
taken on the basis of a unilateral extension by Iceland of its fisheries
jurisdiction but only on the basis of an agreement between the Parties,
concluded either bilaterally or within a multilateral framework, with
due regard to the special dependence of Iceland on its fisheries and to
the traditional fisheries of the Federal Republic of Germany in the
waters concerned.

4. That the acts of interference by Icelandic coastal patrol boats with
fishing vessels registered in the Federal Republic of Germany or with
their fishing operations by the threat or use of force are unlawful
under international law, and that Iceland is under an obligation to
make compensation therefor to the Federal Republic of Germany.”

13. At the public hearing of 28 March 1974 the Agent of the Federal Re-
public of Germany read the final submissions of his Government in this
case; these submissions were identical to those contained in the Memorial,
and set out above.

14. 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 27 June 1972 from the Minister for
Foreign Affairs of Iceland, namely that there was on 5 June 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 11 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
180 FISHERIES JURISDICTION (JUDGMENT)

to inform you that the position of the Government of Iceland with
regard to the proceedings in question remains unchanged and, con-
sequently, no Counter-Memorials will be submitted. At the same time,
the Government of Iceland does not accept or acquiesce in any of the
statements of facts or allegations or contentions of law contained in the
Memorials filed by the Parties concerned.”
*
* *

15. Iceland has not taken part in any phase of the present proceedings.
By the above-mentioned letter of 27 June 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 Federal Republic
of Germany dated 19 July 1961 as terminated; that in its view there was
no basis for the Court under its Statute 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 2 August 1972 concerning the request by
the Federal Republic of Germany 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. Notwithstanding the Court’s Judgment of 2
February 1973, in which the Court decided that it has jurisdiction to
entertain the Application of the Federal Republic of Germany and to
deal with the merits of the dispute, the Government of Iceland maintained
the same position with regard to the subsequent proceedings. By a letter
dated 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. The Agent
of the Federal Republic stated in a letter dated 14 July 1972, with reference
to the above-mentioned letter of 27 June 1972 from the Minister for Foreign
Affairs of Iceland, that:

“the Government of the Federal Republic of Germany for its part
avails itself of the right under Article 53 of the Statute of the
Court to request the Court to continue with the consideration of
this case and in due course to decide in favour of its claim”.

At the public hearings on the merits, the Agent of the Federal Republic
drew attention to the non-appearance in Court of any representative of
the Respondent; he concluded his argument by presenting the final
submissions of the Federal Republic of Germany on the merits of the
dispute for adjudication by the Court.

16. The Court is thus confronted with the situation contemplated by
Article 53, paragraph |, of the Statute, that ‘Whenever one of the parties
does not appear before the Court, or fails to defend its case, the other

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181 FISHERIES JURISDICTION (JUDGMENT)

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.”

17. 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 are, except in respect of one particular issue, to be
dealt with separately below (paragraphs 71 to 76), either not in dispute
or attested by documentary evidence. Such evidence emanates in part
from the Government 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 question 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.

18. It 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 es-
tablishing 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. It should be stressed
that in applying Article 53 of the Statute in this case, the Court has acted
with particular circumspection and has taken special care, being faced
with the absence of the respondent State.

19. Accordingly, for the purposes of Article 53 of the Statute, and
subject to the matters mentioned in paragraphs 71 to 76 below, the Court
considers that it has before it the elements necessary to enable it to

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182 FISHERIES JURISDICTION (JUDGMENT)

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 pro-
ceeding further the Court considers it necessary to recapitulate briefly
the history of the present dispute.

* *

20. 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.”

21. 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:

“Tt 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.

cerned, two methods have been adopted. Certain States have pro-
ceeded to a determination of their territorial waters, especially for
fishing purposes. Others, on the other hand, have left the question of

11
183 FISHERIES JURISDICTION (JUDGMENT)

the territorial waters in abeyance and have contented themselves with
asserting their exclusive right over fisheries, independently of ter-
ritorial 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
together.”

22. No action was taken by Iceland to implement the 1948 Law outside
the existing 3-mile limit of her fisheries jurisdiction until after this Court
had in 1951 handed down its Judgment in the Fisheries case between the
United Kingdom and Norway, in which it endorsed the validity of the
system of straight baselines applied by Norway off the Norwegian coast
(C.J. Reports 1951, p. 116). On 19 March 1952, Iceland issued Regula-
tions 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. No protest
against these Regulations, which came into effect on 15 May 1952, was
made by the Federal Republic of Germany.

23. In 1958, as a result of the discussion by the United Nations General
Assembly of the Report of the International Law Commission on the
Law of the Sea, the First United Nations Conference on the Law of the
Sea was convened at Geneva. This Conference however failed to reach
agreement either on the limit of the territorial sea or on the zone of
exclusive fisheries; it adopted a resolution requesting the General Assem-
bly to study the advisability of convening a second Law of the Sea Con-
ference specifically to deal with these questions. After the conclusion of
the 1958 Conference, Iceland made on 1 June 1958 a preliminary an-
nouncement 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 Scien-
tific Conservation of the Continental Shelf Fisheries.

24, The Federal Republic of Germany did not accept the validity of
the new Regulations, and made its position known to the Government of
Iceland by a note-verbale dated 9 June 1958. However, it issued a
recommendation to the German Trawler Owners’ Association that
fishing vessels should abstain from fishing inside the 12-mile limit, in order
to prevent incidents occurring on the fishing grounds, and this recom-

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184 FISHERIES JURISDICTION (JUDGMENT)

mendation was in fact followed by the vessels of the Federal Republic.
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
indisputable right to a 12-mile fishery limit, that a 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, con-
cerning 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. In the same year, the Federal Republic of Germany and Iceland
embarked on a series of negotiations with a view to the settlement of
their dispute regarding the 1958 Regulations. These negotiations were
preceded by a Note from the Government of Iceland of 5 August 1959 in
which, after explaining in some detail the position it had taken at the
1958 Conference on the Law of the Sea, it stated that it would greatly
appreciate it “if the Government of the Federal Republic of Germany
would consider the special situation and wishes of Iceland”. The Ice-
landic Government added that “where a nation is overwhelmingly
dependent upon fisheries it should be lawful to take special measures, and
decide a further extension of the fishing zone for meeting the needs of
such a nation”. The Note referred to the Resolution adopted at the 1958
Conference on Special Situations relating to Coastal Fisheries. In its
reply of 7 October 1959 the Government of the Federal Republic of
Germany pointed out that it was prepared to recognize the special
dependence of Iceland on its fisheries, but could not accept the view that
the coastal State had a right to include an adjacent area in its fishing zone
unilaterally. The Government of the Federal Republic of Germany
pointed out that the 1958 Resolution would not justify unilateral Ice-
landic measures since it merely provided for the elaboration of agreed
measures, and explicitly laid down that consideration must be given to
the interests of other States. The negotiations came to a halt pending the
Second United Nations Conference on the; Law of the Sea in 1960, and
did not re-open thereafter. On 13 March 1961, the Government of Iceland
notified the Federal Republic of the conclusion of an Exchange of Notes
with the United Kingdom settling the dispute with that courtry re-
garding the 12-mile fishery limits and baselines claimed by Iceland in
its 1958 Regulations. Thereupon further negotiations were commenced,
and on 19 July 1961 an agreement in the form of an Exchange of

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185 FISHERIES JURISDICTION (JUDGMENT)

Notes was concluded for the settlement of the dispute.

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 Federal Republic, were as follows:

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

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

(3) For a period expiring on 10 March 1964, Iceland would not object to
fishing by vessels of the Federal Republic within certain specified
areas and during certain stated months of the year.

(4) During the same period, however, vessels of the Federal Republic
would not fish within the outer 6 miles of the 12-mile zone in seven
specified areas.

(5) Iceland would “continue to work for the implementation of the
Althing Resolution of 5 May 1959, regarding the extension of the
fishery jurisdiction of Iceland. However it shall give the Government
of the Federal Republic of Germany six months’ notice of any such
extension; in case of a dispute relating to such an extension, the
matter shall, at the request of either Party, be referred to the Inter-
national Court of Justice”.

In its Note in reply the Federal Republic of Germany emphasized that,
being “‘mindful of the exceptional importance of coastal fisheries to the
Icelandic economy”, it “agrees to the arrangement set forth in your note,
and that your note and this reply thereto constitute an agreement
between our two Governments which shall enter into force immediately,
subject to the stipulation by the Government of the Federal Republic of
Germany that this agreement is without prejudice to its rights under
international law towards third States”.

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

“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 Federal Republic, during talks in Bonn
in August 1971, to remind the Government of Iceland of the terms of the
1961 Exchange of Notes, and to express the view that the Icelandic

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186 FISHERIES JURISDICTION (JUDGMENT)

fisheries zone could not be extended unilaterally, that the Exchange of
Notes was not open to unilateral denunciation or termination, and to
state that the Government of the Federal Republic would have to reserve
their rights thereunder. No agreement was reached during these talks, and
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 Sep-
tember 1972; and that it was prepared to hold further meetings “‘for the
purpose of achieving a practical solution of the problems involved”.

28. The Federal Republic replied on 27 September 1971 and reaffirmed
its view that “‘the unilateral assumption of sovereign power by a coastal
State over zones of the high seas is inadmissible under international law’’.
It then controverted Iceland’s proposition that the object and purpose
of the provision 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 Federal Republic expressed its willingness, without prejudice to its
legal position, to enter into further exploratory discussions. In November
1971 the Federal Republic and Iceland held discussions in which the
Federal Republic of Germany expressed its understanding for the concern
of the Government of Iceland about the possibility of injury to fish stocks
in the area in question if fishing remained unregulated, and therefore
proposed practical measures to meet the Icelandic concern. In their
proposal the delegation of the Federal Republic of Germany expressed
the conviction that, taking into account the special situation of Iceland
as far as fisheries are concerned, it should be possible, within the frame-
work of the North-East Atlantic Fisheries Commission, to come to an
arrangement whereby all nations engaged in fishing around Iceland would
limit their catches. The Federal Republic of Germany further made the
offer that pending the elaboration of a muitilateral arrangement within
the North-East Atlantic Fisheries Commission the total catch of demersal
species by vessels of the Federal Republic of Germany would be limited
to the average taken by such vessels during the years 1960 to 1969. These
proposals did not lead to any result, and the negotiations which took
place in February 1972 also failed to resolve the dispute.

29. On 15 February 1972 the Althing adopted a Resolution reitera-
ting the fundamental policy of the Icelandic people that the continental
shelf of Iceland and the superjacent waters were within the jurisdiction
of Iceland. While reiterating that the Exchange of Notes of 1961 no

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187 FISHERIES JURISDICTION (JUDGMENT)
longer constituted an obligation for Iceland, it resolved, inter alia:

“1, That the fishery limits will be extended to 50 miles from baselines
around the country, to become effective not later than 1 Sep-
tember 1972.

the extension be continued through discussions with the Govern-
ment 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 . . .”

In an aide-mémoire of 24 February 1972 Iceland’s Minister for Foreign
Affairs formally notified the Ambassador of the Federal Republic in
Reykjavik of his Government’s intention to proceed in accordance with
this Resolution.

30. On 4 March 1972 the Ambassador of the Federal Republic in-
formed the Prime Minister of Iceland of his Government’s decision to
bring the question before the Court. On 14 March 1972, the Federal
Republic in an aide-mémoire formaily took note of the decision of Iceland
to issue new Regulations, and reaffirmed its position that ‘a unilateral
extension of the fishery zone of Iceland to 50 miles is incompatible with
the general rules of international law”, and that ‘‘the Exchange of Notes
of 1961 continues to be in force and cannot be denounced unilaterally”.
Moreover, formal notice was also given by the Federal Republic that it
would submit the dispute to the Court in accordance with the Exchange
of Notes; the Government of the Federal Republic was however willing
to continue discussions with Iceland “in order to agree upon satisfactory
practical arrangements at least for the period while the case is before the
International Court of Justice”. On 5 June 1972, the Federal Republic
of Germany filed in the Registry its Application 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,
at which various proposals for catch-limitation, fishing-effort limitation,
area or seasonal restrictions for vessels of the Federal Republic were
discussed, in the hope of arriving at practical arrangements for an interim
régime pending the settlement of the dispute. At the meeting of 15 May,
the representative of the Federal Republic of Germany explained his
Government’s concept of an interim arrangement on the basis of limiting
the annual catches of fishing vessels from the Federal Republic of Ger-
many to the average of the years 1960 to 1969, On 2 June 1972 the Ice-
landic Foreign Minister presented counter-proposals for an interim

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188 FISHERIES JURISDICTION (JUDGMENT)

agreement. In presenting these the Icelandic Foreign Minister, according
to the Applicant, stated:

“The British and German proposals for catch limitation and the
closure of certain areas for all trawling (Icelandic and foreign)
although they are helpful as far as they go, do not take the basic
principle of preferential treatment sufficiently into account because
if you continue to fish up to the 12-mile limit more or less as you
have done, our preferential position is not recognized. It would
rather mean the freezing of the status-quo ... What we are really
talking about is the reduction of your fishing in Icelandic waters in a
tangible, visible manner.”

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”.
By 14 July there was still no agreement on an interim régime, and on that
date new Regulations were issued extending Iceland’s fishery limits to
50 miles as from 1 September 1972 and, by Article 2, prohibiting all
fishing activities by foreign vessels inside those limits. Consequently, on
21 July 1972, the Federal Republic filed in the Registry of the Court its
request for the indication of interim measures of protection.

32. 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 vessels
registered in the Federal Republic and engaging in fishing outside the
12-mile fishery zone; and that the Federal Republic should limit the
annual catch of its vessels in the ‘‘Sea Area of Iceland” to 119,000 tons.
That the Federal Republic has 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
vessels of the Federal Republic soon after they came into effect on 1
September 1972. Negotiations for an interim arrangement were, however,
resumed between the two countries, and were carried on intermittently
during 1972 and 1973; but they have not led to any agreement.

_ 33. 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

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189 FISHERIES JURISDICTION (JUDGMENT)

persisted in its efforts to enforce the 50-mile limit against vessels of the
Federal Republic 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.

* *

34. The question has been raised whether the Court has jurisdiction to
pronounce upon certain matters referred to the Court in paragraph 3
of the Applicant’s final submissions (paragraphs 12-13 above) concerning
the taking of conservation measures on the basis of agreement between
the Parties, concluded either bilaterally or within a multilateral frame-
work, with due regard to the special dependence of Iceland on its fisheries
and to the traditional fisheries of the Federal Republic of Germany in the
waters concerned.

35. 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 juris-
diction to entertain the Application filed by the Government of the
Federal Republic of Germany on 5 June 1972 and to deal with the merits
of the dispute” (.C.J. Reports 1973, p. 66, para. 46). The Application
which the Court found it had jurisdiction to entertain contained a sub-
mission under letter (b) (cf. paragraph 12 above) which raised the issue
of conservation measures. These questions, among others, had previously
been discussed in the negotiations between the Parties referred to in
paragraphs 27 to 31 above and were also extensively examined in the
pleadings and hearings on the merits.

36. The Order of the Court indicating interim measures of protection
(Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim
Protection Order of 17 August 1972, I.C.J. Reports 1972, p. 30) 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 importance of coastal fisheries to the Icelandic
economy” and on ‘the need for the conservation of fish stocks in the
Iceland area” (/oc. cit., p. 34, paras. 24 and 25).

37. 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 pref-
erential rights, referred again to “the exceptional dependence of Iceland
on its fisheries and the principle of conservation of fish stocks” (Z.C.J.
Reports 1973, p. 65, 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.

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190 FISHERIES JURISDICTION (JUDGMENT)

38. The Order of the Court of 12 July 1973 on the continuance of in-

terim 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. 314, 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” (.C.J. Reports 1972, p. 33, para. 12).
* 39. As to the compromissory clause in the 1961 Exchange of Notes,
this gives the Court jurisdiction with respect to “a dispute relating to such
an extension”, i.e., ‘‘the extension of the fishery jurisdiction of Iceland”.
The present dispute was occasioned by Iceland’s unilateral extension of
its fisheries jurisdiction. However, it would be too narrow an interpreta-
tion of the compromissory clause to conclude that the Court’s juris-
diction is limited to giving an affirmative or 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 exchanges and negotiations between the Parties, both in
1959 and 1960 (paragraph 25 above) and in 1971-1972 (paragraphs 28 to
31 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 between 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 relating to the
extension of the fishery jurisdiction of Iceland”.

40. 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
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.

*

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191 FISHERIES JURISDICTION (JUDGMENT)

41. 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.

42. The Geneva Convention on the High Seas of 1958, which was
adopted ‘‘as generally declaratory of established principles of internatio-
nal 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”.

43. 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
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 territorial sea. This was a
development which reflected the increasing importance of fishery resour-
ces for all States.

44. 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

20
192 FISHERIES JURISDICTION (JUDGMENT)

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 ter-
titorial 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 exploitation of the same fisheries, and to be implemented in the way
indicated in paragraph 49 below.

45. 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 documents
produced in this framework, which must be regarded as manifestations
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
specie legis ferendae, or anticipate the law before the legislator has laid it
down.

46. The concept of a 12-mile fishery zone, referred to in paragraph 44
above, as a fertium 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 Federal Republic of Germany
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 neces-
sarily implies the existence 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

21
193 FISHERIES JURISDICTION (JUDGMENT)

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 41 above, any national delimitation of sea areas, to be op-
posable to other States, requires evaluation in terms of the existing rules of
international law, then it becomes necessary for the Court, in its examina-
tion 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 provisions of the law 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.

47. 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.

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

22
194 FISHERIES JURISDICTION (JUDGMENT)

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

49. 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 totailing
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 scien-
tifically established that a special situation or condition makes the
exploitation of the living resources of the high seas in that area of
fundamental 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 pre-
ferential 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
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 amend-
ment 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
determined 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”.

23
195 FISHERIES JURISDICTION (JUDGMENT)

50. 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”.

51. There can be no doubt of the exceptional importance of coastal
fisheries to the Icelandic economy. That exceptional importance was
explicitly recognized by the Applicant in the Exchange of Notes of 19
July 1961, and the Court has also taken judicial notice of such recognition
by declaring that it is ‘necessary to bear in mind the exceptional impor-
tance of coastal fisheries to the Icelandic economy” (.C.J. Reports 1972,
p. 34, para. 24).

52. 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 two demersal species—cod
and haddock—the Applicant has shown itself aware of the need for a
catch-limitation, which has become indispensable in view of the establish-
ment of catch-limitations in other regions of the North Atlantic. With
respect to other species fished by vessels of the Federal Republic of

24
196 FISHERIES JURISDICTION (JUDGMENT)

Germany—redfish and saithe—it has been recognized by the Applicant
that the setting up of a catch-limitation scheme for certain species also
requires the establishment of overall quotas for other species, in order to
prevent the fishing effort displaced from one stock being transferred to
other stocks. For this reason it is for instance provided in the aforesaid
Arrangement Relating to Fisheries in Waters Surrounding the Faroe
Islands (Art. If) that the annual catches of demersal species other than
cod and haddock shall not exceed by more than an agreed percentage the
highest figure achieved in the years 1968 to 1972.

*

53. 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 govern-
ment regulations indicates that their object is to establish an exclusive
fishery zone, in which all fishing by vessels registered in other States, in-
cluding the Federal Republic of Germany, would be prohibited. The
mode of implementation of the regulations, carried out by Icelandic
governmental authorities vis-a-vis fishing vessels of the Federal Republic,
despite the Court’s interim measures, confirms this interpretation.

54. 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
uncontrolled discretion, to determine the extent of those rights. The
characterization of the coastal State’s rights as preferential implies a
certain priority, but cannot imply the extinction of the concurrent rights
of other States and particularly of a State which, like the Applicant, have
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

25
197 FISHERIES JURISDICTION (JUDGMENT)

fishing activity in the waters beyond the limits agreed to in the 1961
Exchange of Notes.

55. In this case, the Applicant has pointed out that its vessels started
fishing in the Icelandic area as long ago as the end of the last century.
Published statistics indicate that for many years fishing of demersal
species by German vessels in the disputed area has taken place on a
continuous basis, and that since 1936, except for the period of the Second
World War, the total catch of those vessels has been relatively stable.
Similar statistics indicate that the waters in question constitute the most
important of the Applicant’s distant-water fishing grounds for demersal
species.

56. The Applicant further states that the loss of the fishing grounds in
the waters around Iceland would have an appreciable impact on the
economy of the Federal Republic of Germany; the fishing fleet of the
Federal Republic of Germany would not be able to make good the loss of
the Icelandic fishing grounds by diverting their activities to other fishing
grounds in the oceans, because the range of wet-fish trawlers is limited by
technical and economic factors and the more distant grounds, which
could be reached by freezer-trawlers, are already subject to quota limita-
tions. It is pointed out that the loss of the fishing grounds around Iceland
would require the immediate withdrawal from service of the major part of
the wet-fish trawlers, which would probably have to be scrapped and the
withdrawal of a considerable number of trawlers from service would
have sizeable secondary effects, such as unemployment, in the fishing
industry and in related and supporting industries, particularly in coastal
towns such as Bremerhaven and Cuxhaven where the fishing industry
plays a predominant part.

57. 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 particularly paragraph 5 thereof
requiring Iceland to give the Federal Republic of Germany advance
notice of any extension of its fishery limits, impliedly acknowledged the
existence of fishery interests of the Federal Republic in the waters ad-
jacent 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 interests. Furthermore, the Prime Minister of
Iceland in a statement on 9 November 1971, after referring to the fact that
“the well-being of specific British fishing towns may nevertheless to some
extent be connected with the fisheries in Icelandic waters”, went on to say
“Therefore, it is obvious that we should discuss these issues with the
British and the West Germans, both of whom have some interests in this
connection”.

58. Considerations similar to those which have prompted the recogni-

26
198 FISHERIES JURISDICTION (JUDGMENT)

tion of the preferential rights of the coastal State in a special situation
apply when coastal populations in other 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 is of importance
not only to Iceland but also to the Federal Republic of Germany.

59. 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 position.
Accordingly, the Court is bound to conclude that the Icelandic Regula-
tions 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 Federal Republic of Germany, and the latter is
under no obligation to accept the unilateral termination by Iceland of
fishery rights of the Federal Republic in the area.

60. 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 Federal Republic; that Iceland may on the
other hand claim preferential rights in the distribution of fishery resources
in the adjacent waters; that the Federal Republic also has established
rights with respect to the fishery resources in question; and that the
principle 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 Federal Republic to have due regard to each other’s
interests, and to the interests of other States, in those resources.

* *

61. 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

27
199 FISHERIES JURISDICTION (JUDGMENT)

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 preferential
rights of coastal States in a special situation was recognized in the joint
amendment referred to in paragraph 49 above, under such limitations
and to such extent as is found ‘‘necessary by reason of the dependence 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 exploi-
tation 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.

62. 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, in the 1961 Exchange of Notes the “exceptional
importance of coastal fisheries to the Icelandic economy” was recognized.
This expression must be interpreted as signifying dependence for the
purposes both of livelihood and economic development, as in the formulas
discussed at the 1958 and 1960 Geneva Conferences concerning preferen-
tial rights, and in the Exchange of Notes of 11 March 1961 between
Iceland and the United Kingdom. The latter instrument was the model
for the Exchange of Notes between Iceland and the Federal Republic of
Germany, and the Agent of the Federal Republic has informed the Court
that the difference in wording on this point between the United Kingdom
Note and the Federal Republic’s Note had no “legal significance” or had
not been meant to have such significance. It has been suggested by the
Applicant that a situation of exceptional dependence on fisheries for
purposes of economic development could only exist in respect of States
which are still in a stage of development and have only a minor share in
the fisheries off their coasts. Such States undoubtedly afford clear ex-
amples of special dependence; however, in the present case the recognition
of the exceptional importance of coastal fisheries to the Icelandic economy
was made at a time when Iceland was already a State with a comparatively
developed economy and possessed a substantial share in the exploitation

28
200 FISHERIES JURISDICTION (JUDGMENT)

of the fisheries off its coasts. It is therefore not possible to accept the
limited interpretation of the expression employed in the 1961 Exchange of
Notes suggested by the Applicant. With regard both to livelihood and to
economic development, it is essentially a matter of appraising the depen-
dence 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.

63. In view of the Court’s finding (paragraph 59 above) that the Ice-
landic Regulations of 14 July 1972 are not opposable to the Federal
Republic of Germany for the reasons which have been stated, it follows
that the Government of Iceland is not in Jaw entitled unilaterally to
exclude fishing vessels of the Federal Republic from sea areas to seaward
of the limits agreed to in the 1961 Exchange of Notes or unilaterally to
impose restrictions on their activities in such areas. But the matter does
not end there; 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 Federal Republic 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 accord-
ing 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, in-
cluding the coastal State, and of the needs of conservation.

64. It follows that even if the Court holds that Iceland’s extension of
her 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 other’s 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. Con-
sequently, 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, suchas the North-East Atlantic Fisheries Convention of 24 January

29
201 FISHERIES JURISDICTION (JUDGMENT)

1959 as well as such other agreements as may be reached in the matter in
the course of further negotiation.

65. 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 (Federal Republic of Germany
v. Iceland), Interim Measures, Order of 12 July 1973, 1 C.J. Reports 1973,
p. 314, 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 downa
precise scheme for an equitable adjustment of the rights involved.

66. 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 Situations
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 States
fishing in the area, of agreed measures to secure just treatment of the
special situation.

67. 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:

‘“... 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” U.C.J. Reports 1969, p. 47, para. 86).

68. 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. In its Memorial, the Applicant has asked the
Court to give the Parties some guidance as to the principles which they

30
202 FISHERIES JURISDICTION (JUDGMENT)

should take into account in their negotiations for the most equitable
management of the fishery resources, and has declared its readiness to
enter into meaningful discussions with the Government of Iceland for the
purpose of a permanent settlement of the fisheries problem. As to Iceland,
its policy was clearly stated in paragraph 3 of the Althing Resolution of
15 February 1972, namely to continue efforts to reach a solution of the
problems connected with the extension through discussions with the
Applicant.

69. 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).

70. The Court must take into account the situation which will result
from the delivery of its Judgment, with respect to the interim measures
indicated on 17 August 1972 and which, inter alia, fixed a catch-limitation
figure of 119,000 tons for vessels registered in the Federal Republic of
Germany. These interim measures will cease to have effect as from the
date of the present Judgment, since the power of the Court to indicate
interim measures under Article 41 of the Statute of the Court is only
exercisable pendente lite. Notwithstanding the fact that the Parties have
not entered into any provisional arrangement, they are not at liberty to
conduct their fishing activities in the disputed waters without limitation.
Negotiations in good faith, which are ordered by the Court in the
present Judgment, involve in the circumstances of the case an obligation
upon the Parties to pay reasonable regard to each other’s rights and to
conservation requirements pending the conclusion of the negotiations.
While this statement is of course a re-affirmation of a self-evident prin-
ciple, it refers to the rights of the Parties as indicated in the present
Judgment. It is obvious that both in regard to merits and to jurisdiction,

31
203 FISHERIES JURISDICTION (JUDGMENT)

the Court only pronounces on the case which is before it and not on any
hypothetical situation which might arise in the future. At the same time,
the Court must add that its Judgment cannot preclude the Parties from
benefiting from any subsequent developments in the pertinent rules of
international law.

* *

71. By the fourth submission in its Memorial, maintained in the oral
proceedings, the Federal Republic of Germany raised the question of
compensation for alleged acts of harassment of its fishing vessels by
Icelandic coastal patrol boats; the submission reads as follows:

“That the acts of interference by Icelandic coastal patrol boats
with fishing vessels registered in the Federal Republic of Germany or
with their fishing operations by the threat or use of force are un-
lawful under international law, and that Iceland is under an obliga-
tion to make compensation therefor to the Federal Republic of
Germany.”

72. The Court cannot accept the view that it would lack jurisdiction to
deal with this submission. The matter raised therein is part of the con-
troversy between the Parties, and constitutes a dispute relating to
Iceland’s extension of its fisheries jurisdiction. The submission is one
based on facts subsequent to the filing of the Application, but arising
directly out of the question which is the subject-matter of that Applica-
tion. As such it falls within the scope of the Court’s jurisdiction defined
in the compromissory clause of the Exchange of Notes of 19 July 1961.

73. In its Memorial, and in the oral proceedings, when presenting its
submission on compensation, the Federal Republic of Germany stated
that:

“,.. [it] reserves all its rights to claim full compensation from the
Government of Iceland for all unlawful acts that have been com-
mitted, or may yet be committed . . . [it] does not, at present, submit
a claim against the Republic of Iceland for the payment of a certain
amount of money as compensation for the damage already inflicted
upon the fishing vessels of the Federal Republic. [It does] however,
request the Court to adjudge and declare that the Republic of
Iceland is, in principle, responsible for the damage inflicted upon
German fishing vessels .. . and under an obligation to pay full com-
pensation for all the damage which the Federal Republic of Germany
and its nationals have actually suffered thereby.”

74. The manner of presentation of this claim raises the question
whether the Court is in a position to pronounce on a submission main-

32
204 FISHERIES JURISDICTION (JUDGMENT)

tained in such an abstract form. The submission does not ask for an
assessment of compensation for certain specified acts but for a declaration
of principle that Iceland is under an obligation to make compensation to
the Federal Republic in respect of all unlawful acts of interference with
fishing vessels of the Federal Republic. The Applicant is thus asking for a
declaration adjudicating, with definitive effect, that Iceland is under an
obligation to pay full compensation for all the damage suffered by the
Applicant as a consequence of the acts of interference specified in the
proceedings. In its Memorial the Federal Republic has listed a large
number of incidents involving its vessels and Icelandic coastal patrol
boats, and continues:

“The Government of the Federal Republic does ... request the
Court to adjudge and declare that the Republic of Iceland is, in
principle, responsible for the damage inflicted upon German fishing
vessels by the illegal acts of the Icelandic coastal patrol boats
described in the preceding paragraphs, and under an obligation to pay
full compensation for all the damage which the Federal Republic
of Germany and its nationals have actually suffered thereby.”
(Emphasis added.)

The final submission, which refers to “‘the acts of interference” and the
“obligation to make compensation therefor’’, confirms the above interpre-
tation.

75. Part V of the Memorial on the merits contains a general account
of what the Federal Republic describes as harassment of its fishing vessels
by Iceland, while Annexes G, H, I and K give some further details in
diplomatic Notes and Annex L lists the incidents, with a statement of the
kind of each incident. Some information concerning incidents is also to be
found in the Federal Republic’s reports regarding the implementing of
the Court’s Order for provisional measures.

76. The documents before the Court do not however contain in every
case an indication in a concrete form of the damages for which compensa-
tion is required or an estimation of the amount of those damages. Nor do
they furnish evidence concerning such amounts. In order to award com-
pensation the Court can only act with reference to a concrete submission
as to the existence and the amount of each head of damage. Such an
award must be based on precise grounds and detailed evidence concerning
those acts which have been committed, taking into account all relevant
facts of each incident and their consequences in the circumstances of the
case. It is only after receiving evidence on these matters that the Court
can satisfy itself that each concrete claim is well founded in fact and in
law. It is possible to request a general declaration establishing the prin-
ciple that compensation is due, provided the claimant asks the Court to
receive evidence and to determine, in a subsequent phase of the same
proceedings, the amount of damage to be assessed. Moreover, while the
Applicant has reserved all its rights “to claim compensation”, it has not

33
205 FISHERIES JURISDICTION (JUDGMENT)

requested that these damages be proved and assessed in a subsequent
phase of the present proceedings. It would not be appropriate for the
Court, when acting under Article 53 of the Statute, and after the Applicant
has stated that it is not submitting a claim for the payment of a certain
amount of money as compensation, to take the initiative of requesting
specific information and evidence concerning the indemnity which, in the
view of the Applicant, would correspond to each incident and each head
of damage. In these circumstances, the Court is prevented from making
an all-embracing finding of liability which would cover matters as to
which it has only limited information and slender evidence. Accordingly,
the fourth submission of the Federal Republic of Germany as presented
to the Court cannot be acceded to.

77. For these reasons,
THE COURT,

by ten votes to four,

(1) finds that the Regulations concerning the Fishery Limits off Iceland
(Reglugerd um fiskveidilandhelgi Islands) 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 Federal Republic of Germany;

(2) finds that, in consequence, the Government of Iceland is not entitled
unilaterally to exclude fishing vessels of the Federal Republic of
Germany from areas between the fishery limits agreed to in the
Exchange of Notes of 19 July 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) holds that the Government of Iceland and the Government of the
Federal Republic of Germany are under mutual obligations to
undertake negotiations in good faith for the equitable solution of
their differences concerning their respective fishery rights in the areas
specified in subparagraph 2;

(4) 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 her people upon

34
206

(b)

(c)
(d)

(e)

FISHERIES JURISDICTION (JUDGMENT)

the fisheries in the seas around her coasts for their livelihood and
economic development;

that by reason of its fishing activities in the areas specified in sub-
paragraph 2, the Federal Republic of Germany also has estab-
lished rights in the fishery resources of the said areas on which
elements of its people depend for their livelihood and economic
well-being;

the obligation to pay due regard to the interests of other States
in the conservation and equitable exploitation of these resources;
that the above-mentioned rights of Iceland and of the Federal
Republic of Germany 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;

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 conserva-
tion 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,

by ten votes to four,
(5) finds that it is unable to accede to the fourth submission of the

Federal Republic of Germany.

Done in English, and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twenty-fifth day of July, one thou-
sand 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 Federal Republic of Germany and to the Government
of the Republic of Iceland respectively.

(Signed) Manfred LACHS,
President.

(Signed) S. AQUARONE,
Registrar.

President LACHS makes the following declaration:

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

35
207 FISHERIES JURISDICTION (DECL. DILLARD)

Judge DILLARD makes the following declaration:

I concur in the findings of the Court indicated in the first four subpara-
graphs of the dispositif. My reasons for concurrence are set out in my
separate opinion in the companion case of the United Kingdom of Great
Britain and Northern Ireland vy. Iceland. 1 consider these reasons applicable
mutatis mutandis to the present case.

While I concurred in the finding in the fifth subparagraph that the Court
“js unable to accede to the fourth submission of the Federal Republic
of Germany”, I am impelled to add the following reservation !.

The Court has held, in paragraph 72, that it is competent to entertain
this particular submission. Although, for obvious reasons, the sub-
mission was not included in the Application filed on 5 June 1972 since
the acts of harassment and interference occurred thereafter, it was
included in the Memorial on the merits and in the final submissions. The
delay therefore should not be a bar. The Court’s construction of the
nature and scope of the Exchange of Notes of 1961, revealed in its
analysis of the other submissions, is clearly consistent with its finding
that the compromissory clause is broad enough to cover this submission
as well. In my view the conclusion that the Court is competent to entertain
it, is thus amply justified.

The Court, however, has interpreted this submission as one asking the
Court to adjudicate with definitive effect that Iceland is under an obli-
gation to pay full compensation for all the damages suffered by the
Applicant as a consequence of the acts of interference specified in the
proceedings (para. 74). In keeping with this interpretation it considers
the submission to fall outside its province under Article 53 of its Statute
since it considers there is insufficient evidence to satisfy itself that each
concrete claim is well founded in fact and law (para. 76). If the Court’s
interpretation of the submission were the only permissible one, I would
concur without reservation in its conclusion.

But, in my view, it is not the only permissible one and it may not be
the most desirable one. The Applicant both in its Memorial on the
merits and in the oral proceedings has stressed the point that it is not at
present submitting any claim for the payment of a certain amount of
money. The submission itself only requests that the Court should declare
that the acts of harassment and interference were unlawful and in
consequence Iceland, as a matter of principle, is under a duty to make
compensation. True the submission is couched in a form that is abstract
but the question is whether this should deter the Court from passing
upon it. am not altogether persuaded that it is.

That Iceland’s acts of harassment and interference (indicated in con-
siderable detail in the proceedings) were unlawful hardly admits of doubt.

1 All of the Applicant’s submissions are set out in para. 12 of the Judgment and the
fourth submission is also set out in para. 71.

36
208 FISHERIES JURISDICTION (DECL. DILLARD)

They were committed pendente lite despite the obligations assumed by
Iceland in the Exchange of Notes of 1961 which the Court had declared
to be a treaty in force. That their unlawful character engaged the
international responsibility of Iceland is also clear. In the Phosphates in
Morocco case (P.C.I.J., Series A/B, No. 74, p. 28) the Court linked the
creation of international responsibility with the existence of an “‘act being
attributable to the State and described as contrary to the treaty right of
another State”. It is hardly necessary to marshal authority for so
elementary a proposition. It follows that, in effect, the Court was merely
asked to indicate the unlawful character of the acts and to take note of
the consequential liability of Iceland to make reparation. It was not
asked to assess damages.

The Court recognized this point in paragraph 74 of the Judgment but
instead of stressing the limited nature of the submission it preferred to
attribute to it a more extensive character. As indicated above, its inter-
pretation led naturally to the conclusion that it could not accede to the
submission in the absence of detailed evidence bearing on each concrete
claim. While conceding the force of the Court’s reasoning, I would have
preferred the more restrictive interpretation.

I wish to add that on this matter I associate myself with the views
expressed by Judge Sir Humphrey Waldock in his separate opinion.

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 Appiicant, which is for a statement of the law on a specific point.

I 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
reasoning of the Judgment. It is obvious that considerations relating to
these various needs, dealt with at length in the Judgment, are not subject
to any dispute between the Parties. There is no doubt that, after setting

37
209 FISHERIES JURISDICTION (DECL. IGNACIO-PINTO)

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 the unilateral extension by Iceland of its zone of exclusive
fisheries jurisdiction to 50 nautical miles from the present baselines,
... has, as against the Federal Republic of Germany, no basis in
international law . . .”’ (Judgment, para. 12 (1)).

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 sub-
missions, 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 nautica! miles from the baselines specified
therein are not opposable to the Government of the Federal Republic of
Germany”.

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
conventions. 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 19 July 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 Appli-
cant 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
refusal to respect the commitment it accepted in the Exchange of Notes of
19 July 1961, to refer to the International Court of Justice any dispute
which might arise on an extension of its exclusive fisheries zone, which

38
210 FISHERIES JURISDICTION (DECL. IGNACIO-PINTO)

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 Federal Republic of Germany, instead of embarking on
the construction 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 I am not unaware of the risk that I 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 J declare allegiance
is out-dated; but for myself, 1 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
particular for the benefit of the developing countries. But since 1 am
above all faithful to judicial practice, 1 continue fervently to urge the

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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.

I 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
Federal Republic of Germany 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 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 français de droit international, 1971, p. 828).

In the expectation of the opening of the new era which is so much
hoped for, | 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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212 FISHERIES JURISDICTION (DECL. NAGENDRA SINGH)

hence I consider them of such importance as to be appropriately em-
phasized 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:

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 the first and second submissions of the Applicant’s Memorial on
the merits, in terms of non-opposability to the Federal Republic of
Germany as requested by the Applicant. This suffices for the purpose of
that part of the Judgment. It was, therefore, not necessary for the Court
to adjudicate on that aspect of the first submission which relates to the
general law.

In the special circumstances of this case the Court has, therefore, not
proceeded to pronounce upon that particular request of the Applicant
which asks the Court to declare that [celand’s extension of its exclusive
fishery limit to 50 nautical miles has no basis in international law which
amounts to asking the Court to find that such extension is ipso jure
illegal and invalid erga omnes, Having refrained from pronouncing on
that aspect it was, consequently, unnecessary for the Court to pro-
nounce on the Applicant’s legal contention in support of its first
submission, namely, that a customary rule of international 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
law before the legislator has laid it down”.

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.

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213 FISHERIES JURISDICTION (DECL. NAGENDRA SINGH)

II

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 all 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.

HI

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
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
jurisprudence of the Court. On 19 August 1929 the Permanent Court of

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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) observed
that the judicial settlement of international disputes is simply an alter-
native to the direct and friendly settlement of such disputes between the
parties. Thus if negotiations become necessary in the special circumstances
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 Advisory 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 “‘not 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 negotia-
tions 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 con-
template 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 ostensibly for negotiations or whether it be reliance on
considerations of equity. The Court has, therefore, answered the third
submission of the Applicant’s Memorial on the merits in the affirmative
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
settlement, has thus emphasized the importance of resolving the dispute
in the adjudication of the case.

No court of Jaw and particularly not the International Court of Justice
could ever be said to derogate from its function when it gives due impor-
tance 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

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in the larger interest and ceasing to be narrow and restrictive in its
approach.

Thus, when confronted with the problem of its own competence in
dealing with that aspect of the dispute which relates to the need for
conservation and the exercise of preferential rights with due respect for
historic 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
considered 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 obligations, which also
governs its own competence to entertain a dispute. However, this could
hardly be taken to mean that a tribunal constituted as a regular court of
Jaw 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 the case “the extension of the fishery jurisdiction of 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. Similarly, the Court
could not hold that it was without competence to deal with the fourth
submission of the Applicant pertaining to a claim for compensation
against Iceland since that submission arises out of and relates to the
dispute. 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.

IV

For purposes of administering the law of the sea and for proper
understanding 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
enforcement of conservation measures, exercise of preferential rights and

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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 pre-
amble of the Truman Proclamation of 1945 respecting United States
coastal fisheries refers to a “jurisdictional” basis for implementing con-
servation 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.

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

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

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

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