72

SEPARATE OPINION OF JUDGE DE CASTRO
[Translation]

I have voted with the majority, but do not consider that I can wholly
subscribe to the reasoning in the Judgment. I therefore venture, in
exercise of the right conferred on me by the Statute, to set out in detail
the reasons for my vote.

J. THE TEXTS TO BE INTERPRETED
1. The 1961 Agreement

The Exchange of Notes of 11 March 1961 underlies the whole case;
the compromissory clause contained therein constitutes the source of the
Court’s jurisdiction (Judgment of 2 February 1973). It is necessary to
interpret its content in order to ascertain the intentions of the parties,
which is the first factor to be taken into account by the Court.

The Exchange of Notes took place at a time when the law of the sea
was undergoing a crisis in its development, and it is in this context that
it should be considered and then interpreted |.

On 5 April 1948 the Althing adopted the ‘Law Concerning the Scien-
tific Conservation of the Continental Shelf Fisheries”, and by a decree
of 30 June 1958, Iceland’s fisheries limits were extended to a distance of
12 miles. The United Kingdom challenged the validity of this action and
there ensued serious incidents and lengthy negotiations. It was during
this period that the Resolution of the Althing of 5 May 1959 was passed
and the United Nations Conference on the Law of the Sea was held in
1960. Finally, following talks in London and Reykjavik, the dispute was
settled by the Exchange of Notes of 11 March 1961. The United Kingdom
Government accepted [celand’s unilateral declaration of 1958 stating
that it ‘‘will no longer object to a 12-mile fishery zone around Iceland”.

This acceptance by the United Kingdom was explained in a letter from
Her Britannic Majesty’s Ambassador to the Foreign Minister of Iceland as
being “‘in view of the exceptional dependence of the Icelandic nation upon
coastal fishery for their livelihood and economic development”. Iceland’s

1 On the relationship between the Icelandic claims and the development of the law
of the sea, see section LII.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 73

special interest in the fisheries of its coastal waters was thus recognized !.

The United Kingdom accepted a 12-mile zone, but only because of
Iceland’s special interest in the adjacent seas. Iceland for its part regarded
the 12-mile limit as provisional and did not accept it as the maximum
and permanent limit.

The United Kingdom conceded that the following reservation should
be inserted in the Agreement:

“The Icelandic Government will continue to work for the im-
plementation of the Althing resolution of 5 May 1959, regarding the
extension of fisheries jurisdiction around Iceland.”

The Icelandic Government thus reserved the power to extend its
fisheries jurisdiction at will, subject to certain conditions or more pre-
cisely to certain restrictions, namely those set out in the agreement; that
six months’ notice be given of any decision to that effect and that any
dispute which might arise over any such extension be referred to the
Court at the request of either party. Additionally there was an implied
restriction that the purpose of any extension would be to implement the
Althing resolution of 5 May 1959.

In its resolution of 5 May 1959, the Althing had declared that:

“6

. recognition should be obtained of Iceland’s right to the entire
continental shelf area in conformity with the policy adopted by the
Law of 1948 concerning the Scientific Conservation of the Continen-
tal Shelf Fisheries”.

Thus the Law of 1948 enables the true scope of Iceland’s reservation
in its 1961 Notes to be ascertained. Its purpose was identical to its title:
its direct object was the establishment of “conservation zones” within
the limits of the Icelandic continental shelf; but, in accordance with
progressive thinking which was already widespread at the time, the Law
went on to lay down that in the said zones “all fisheries shall be subject
to Icelandic rules and control” (Art. 1).

The statement of reasons for the Law mentioned Iceland’s special
interests and declared that:

“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.”

It also referred to the new trends in the law of the sea, especially the

1 This special interest of Iceland was recognized by the Court in the Order of 17
August 1972 (1.C.J. Reports 1972, pp. 16 and 17) and in its Judgment of 2 February
1973 (1.C.J. Reports 1973, p. 20).

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 74

growing recognition by countries which engage in fishing mainly in the
vicinity of their own coasts, of the right of coastal States to ensure the
protection of fishing grounds in accordance with the findings of scientific
research. The ‘‘commentary on Article 1” explained that it provided
for:

‘... the delimitation of the waters within which the measures of
protection and prohibition of fishing should be applied, i.e., the
waters which are deemed not to extend beyond the continental
shelf; and, on the other hand, the measures of protection and
prohibition of fishing which should be applied in these waters”.

On the question of the sovereignty of States over fishing grounds in the
vicinity of their coasts, the statement of reasons was not categorical,
merely stating that:

“It would appear, however, to be more natural to follow the
example of those States which have determined the limit of their
fisheries jurisdiction in accordance with the contour of the con-
tinental shelf along their coasts. The continental shelf of Iceland is
very clearly distinguishable, and it is therefore natural to take it as a
basis. This is the reason why this resolution has been adopted in the
present draft law.”

Under Article 2 of the Law:

“The regulations promulgated under Article | of the present law
shail be enforced only to the extent compatible with agreements with
other countries to which Iceland is or may become a party.”

These texts may be seen as reflecting, to a moderate extent, the so-called
progressive movement, initiated by President Truman’s Proclamations,
and expressed in the trends towards a renewal of the law of the sea
relating to fisheries which have resulted from the legislation and the
doctrines of Latin American countries.

It seems to me that according to the text of the Law of 1948 and of the
explanations given in the statement of reasons for the Law, the Icelandic
reservation of 1961 should be interpreted as a solemn declaration of its
intention to extend its fisheries zone in the future and to do so unilaterally,
by reason of the special interests and especially the preferential rights of
Iceland within the limits of its continental shelf, such a reserved right of
extension to be enforced in so far as was compatible with such agree-
ments as Iceland might conclude with other countries.

It should be noted that in 1948 the Icelandic Government proceeded
with caution; it did indeed claim to subject the zone superjacent to the
continental shelf to its rules and controls, but it did so because it saw such
areas as ‘‘conservation zones’. Therefore, the reservation made in the
Exchange of Notes of 1961 in respect of the intentions expressed in the

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FISHERIES JURISDICTION (SEP. OP, DE CASTRO) 75

Althing Resolution of 1959—which in turn referred to the Law of 1948—
is to be interpreted not as a reservation of a right to claim exclusive
fishing rights within the limits of the Icelandic continental shelf, but as
a reservation of the right to claim preferential rights by reason of Iceland’s
special interests.

2. The 1972 Althing Resolution

The Althing Resolution of 1972 asserted that the continental shelf of
Iceland and the superjacent waters were within the jurisdiction of Iceland
and provided that the fishery limits would be extended to 50 miles from
baselines around the country (para. i). The extension effected by this
Resolution is the cause of the dispute now before the Court. The Resolu-
tion, however, merits detailed consideration.

Paragraph 2 states:

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

The Court has adjudged and declared that the Notes of 1961 are still
in force so far as concerns the compromissory clause (Judgment of 2
February 1973). In that respect, the Althing Resolution was considered
to be of no effect. For reasons similar to those set out in the said Judgment
(paras. 36 er seq.), and in the light of the principles enshrined in Article
42 of the Vienna Convention on the Law of Treaties, it is quite clear that
Iceland does not have the right to declare unilaterally that the agreement
made in 1961 no longer constitutes an obligation for it.

The Court could confine itself to saying that the Althing Resolution,
proclaiming the lapse of the 1961 Notes, was void and ineffective. But
the other paragraphs of that Resolution should be considered indepen-
dently (duae sunt ... stipulationes, una utilis, alia inutilis, neque vitiatur utilis
per hanc inutilem, D.45.1.1, para. 5), and in relation to the 1961 Notes
in question.

Paragraph 1 is no more than the implementation of what had been
announced in 1961, i.e., the extension of Iceland’s jurisdiction over the
whole continental shelf area. It now describes the Law of 1948 as the
“fundamental policy of the Icelandic people” !. The aim of the Resolution
and that of the 1948 Law were in fact the same, i.e., ‘‘to strengthen the
measures of protection essential to safeguard the vital interests of the
Icelandic people in the sea surrounding its coasts” and to prevent all that

1 It should be noted that Article 7 of the Icelandic Regulations of 14 July 1972 states
that: “these regulations are promulgated in accordance with Law No. 44 of 5 April
1948, concerning the scientific conservation of the continental shelf fisheries.”

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 76

was “harmful to the maintenance of the resources of the sea on which
the livelihood of the Icelandic people depends” (Government of Iceland’s
aide-mémoire of 31 August 1971).

If the decree of 30 June 1958 is borne in mind, the 1972 Resolution can
be considered as the adoption of a position in view of future negotiations,
the aim being to adapt Iceland’s jurisdiction to the new trends in the
law of the sea and to take advantage of a fresh crisis in the development
of that law. The demand for a zone of exclusive jurisdiction (cf. above
aide-mémoire) was formulated in most moderate terms. The 1972
Resolution pointed out that:

“|. . efforts to reach a solution of the problems connected with the
extension [will] be continued through discussions with the Govern-
ments of the United Kingdom and the Federal Republic of Ger-
many !” (para. 3).

In those discussions, the Icelandic representatives emphasized the
importance of a positive reaction from the British side to a point regarded
as fundamental: “recognition of preferential rights for Icelandic vessels
as to fishing outside the 12-mile limit.” (Government of Iceland’s Note
of 11 August 1972.)

3. The 1973 Agreement between the United Kingdom and Iceland

The Court has been informed of the Exchange of Notes constituting
an interim agreement on fisheries between the Government of the
United Kingdom and the Government of the Republic of Iceland, dated
13 November 1973.

This agreement deprives of effect as between the Parties the Orders of
the Court made on 17 August 1972 and 12 July 1973, indicating interim
measures. It establishes a temporary régime valid for a period of two
years. The agreement is temporary “pending a settlement of the sub-
stantive dispute”. It is also stated that “its termination will not affect the
legal position of either Government with respect to the substantive
dispute”’ (para. 7).

The Court may wonder whether the effect of the 1973 agreement is
only to replace the interim measures laid down in the Orders of the Court
by the Exchange of Notes. It seems to me that this agreement has a wider
and more general scope which should be examined.

On that same date, 13 November 1973, the United Kingdom Prime
Minister said in the House of Commons, in reply to Mr. Harold Wilson:

“Our position at the World Court remains exactly as it is, and the
agreement is without prejudice to the case of either country in this
matter. This is an interim agreement covering two years from the

1 This statement, which appears in the middle of the Resolution, seems to me to be
highly significant; problems which the 1961 Exchange of Notes made it possible to
bring before the Court are referred to negotiation.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 77

moment of signature this afternoon, in the expectation that the
Conference on the Law of the Sea will be able to reach firm con-
clusions. We all know the difficulties facing a conference on the law
of the sea, but both Governments hope that it will have been possible
by the expiration of this agreement to reach agreement on the law
of the sea and that that will then govern the situation.”

The Court cannot ignore the terms of this agreement and the interpreta-
tion, given in the House of Commons, of its aims and intentions. It is
thus placed in an embarrassing position.

As a result of this agreement, the Court’s judgment on the merits of
the case will have no immediate effect. It has been subjected by the Parties
to a waiting period of two years and to two conditions, the first concerning
a settlement of the dispute by a new agreement and the second relating
to an agreement at the Conference on the Law of the Sea. All this is
irregular and hardly in keeping with what seems to be the function of the
Court.

This agreement also shows that the Parties do not believe that the
Court will be able to settle their dispute. They have found a solution to
certain issues referred to the Court, albeit for a period of two years only.
This agreement is an interim one, but it was concluded ‘“‘pending a
settlement of the substantive dispute”. Now the settlement which the
Parties say they are waiting for is not that which may result from a
judgment of the Court. This is obvious, in view of the attitude of Iceland,
which continues to deny that the Court has jurisdiction. The hope of the
Parties that they will be able to reach a definite settlement is based on
negotiations now in progress, whether or not they are carried on with
the Conference on the Law of the Sea in view.

Does the announcement of these negotiations justify suspending the
proceedings? It is true that peaceful settlement of disputes should be
brought about above all by means of negotiation. The Court is open to
States to settle issues of a legal nature which they may refer to it, but a
dispute is ripe for reference to the Court, when negotiations between
the parties reach deadlock and when the success of the negotiations has
definitively been ruled out as a result of a non volumus or a non possumus
of the parties. I do not know of any precedent which might help to answer
this question; in my opinion, once proceedings have been initiated, there
is no way of suspending them, and they should continue unless the case
is settled out of court or discontinued.

The agreement constitutes a valuable argument in favour of cautious
solutions. It shows that the readiness expressed by Iceland in the 1972
Resolution to seek a solution of the problems connected with the ex-
tension through discussions was not an empty formula. It also shows
that a judgment of the Court, delivered before the Parties reach a
settlement through negotiations on the substance of the dispute, and
drawn up without taking into consideration the indicative value of

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 78

the agreement, could be an insurmountable obstacle to a negotiated
settlement of the dispute—and that would be contrary to the essential
purpose of the Court which is to contribute to the peaceful settlement
of disputes.

II. THE BURDEN OF PROOF

A preliminary question which arises is that of the burden of proof.

The United Kingdom Memorial on the merits asserted that “the burden
of proving that international law now recognizes the right of a coastal
State to make such an exclusive claim as Iceland is now making rests upon
Iceland”. In support of this assertion, it stated that the Exchange of
Notes of 1961 represented the law as it then existed, and that the conclu-
sion to be drawn therefrom was that ‘“‘an assertion of exclusive juris-
diction over fisheries beyond 12 miles is not permissible by unilateral
act”. It added that Iceland must furnish convincing proof before such
long-established rights could be set aside (para. 229) 1.

The Memorial on the merits of the Federal Republic of Germany
argued that:

“It is Iceland, not the Federal Republic of Germany, which is
challenging the established law, and it is for this reason that the
Government of the Federal Republic maintains that the burden of
proof that international law now recognizes the right of a coastal
State to extend its jurisdiction beyond the 12-mile limit, rests upon
Iceland.” (Part IV, para. 60; see also para. 66.)

In my opinion, this line of argument rests on incorrect premises.

It is begging the question to say that the law as it existed, the “estab-
lished law”, prohibited States from extending their fisheries jurisdiction
beyond 12 miles. All that one can say is that around 1961 there was a
trend in favour of the 12-mile rule. But the question still remains for con-
sideration whether or not this rule fulfilled the conditions necessary for
it to be regarded as a rule of customary law.

It is not permissible to refer to rights as being definitively and firmly
vested rights in 1961; the Exchange of Notes of 1961 contained an express
reservation whereby the Government of Iceland proclaimed its intention
to work for the extension of its fisheries jurisdiction beyond 12 miles,
such reservation being accepted by the other party. The said rights were
therefore conditional vested rights.

The question raised by the Applicant regarding the burden of proof
seems to me to be an unreal question, calling for a different reply de-
pending on who puts it. The Applicant believes that Iceland has claimed

1 In this sense, cf. Katz, “‘Issues Arising in the Icelandic Fisheries Case”, Inter-
national and Comparative Law Quarterly, XXII-I (January 1973), p. 95.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 79

the right to extend its fisheries jurisdiction beyond 12 miles and should
provide evidence of the law under which it is entitled to extend its
jurisdiction beyond 12 miles and up to 50 miles. From Iceland’s point of
view, it is the United Kingdom which has claimed the right to over-rule
Iceland’s resolution, as being contrary to international law; it is therefore
for the United Kingdom to provide evidence of the law limiting Iceland’s
sovereignty.

The question is the same, but is put from different standpoints. The
proof to be sought is that of the substantive law to be applied in this
case, a law which is the same for both parties although considered from
two different points of view 1.

The question should also be asked whether customary international
law has to be proved. This question has arisen in the municipal law of
States where customs are considered as giving rise to a quaestio facti, but
the customs referred to are those peculiar to regions, places or groups
of persons (businessmen, farmers, etc.). The question arises in inter-
national law in a wholly different way.

A distinction should be observed between two categories of customs.
Traditionally jurists and canonists have distinguished in ordinary law
between notorious customs well known to all and particular customs; the
latter, being exceptions, had to be proved. This is also the case in English
law, under which there are two kinds of customs: ‘“‘general customs”
which apply throughout the Kingdom and “particular customs” appli-
cable to the inhabitants of certain regions. The particular customs had to
be proved, while the general customs did not,—they were the ‘‘common
law” 2,

International customary law does not need to be proved; it is of a
general nature and is based on a general conviction of its validity (opinio
iuris). The Court must apply it ex officio; it is its duty to know it as
quaestio iuris: iura novit curia 3. Only regional customs or practices, as
well as special customs, have to be proved 4.

1 | think that this is confirmed by the inconclusive discussions in the United King-
dom v. Norway Fisheries case and by the considered views on the matter of Lauter-
pacht, The Development of International Law by the International Court (London,
1958, pp. 363, 365).

2 Blackstone, Commentaries on the Laws of England, Introduction, para. 3, 4th
ed., Oxford, 1770, pp. 67, 75.

3 In the Lotus case the Court raised the question whether Turkey had acted in a
manner contrary to the principles of international law (P.C.I.J., Series A, No. 10
(1928), p. 32); in the Fisheries case between the United Kingdom and Norway, the
Court considered the question whether Norway’s actions were contrary to international
law (Z.C.J. Reports 1951, p. 132). The question of the law to be applied was therefore
not considered in the terms of the view of the Applicant in these cases, and there is no
reason to adopt a different course in the case now before the Court.

4 I.C.J. Reports 1950, p. 276.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 80

III. THE DEVELOPMENT OF THE LAW OF THE SEA

1. The Court has said that the delimitation of sea areas depends upon
international law (1.C.J. Reports 1951, p. 132). What are the rules of
international law to be applied to the delimitation made by Iceland?

The existence of such rules has been denied by the Icelandic Prime
Minister in a speech, in which he said:

“T cannot see that our proposed extension of fisheries jurisdiction
is contrary to any accepted international law. It is a fact that there
are no generally accepted rules in international law on the territorial
limit.” (Iceland and the Law of the Sea, 1972, p. 31, quoted in the
Memorial on the merits of the Federal Republic of Germany, Part
IV, p. 96, para. 58.)

The terms used are of a polemical nature; they come from one of the
Parties to the dispute. But it has also been possible to make the following
objective comment:

6

. in plain words, the really grave issue is not what breadth is
presently accepted, but whether the issue is governed by international
law at all!”.

In my opinion, the changes, the increasingly rapid development of
technical conditions for the exploitation of the resources of the sea have
resulted in a visible lagging behind of the old rules; there is a crisis in the
law of the sea, but that should not stand in the way of the search for a
just legal solution of this case. I think it would be useful to examine this
development before considering the law to be applied. I do not propose
to repeat here the well-known history of the law of the sea, but only to
restate what may be useful to arrive at what I consider the necessary
clarification of some points in order to justify my opinion on the law
to be applied.

2. The opposition between the theses of mare liberum and mare
clausum is of a purely political nature; it reflects the need to counter, with
arguments of every kind, the claims to hegemony of the maritime powers;
it is the struggle for the domain or empire of the sea.

“The question ... has been a subject for debate in our day by the
most distinguished minds. In connexion with this question it has
been easy to observe that many of the disputants hold their zeal for
their own country before their eyes rather than the truth 2.”

On the other hand, the delimitation of sea areas is considered from a
legal point of view when it concerns the question of mare adjacens. The

1 Brownlie, Principles of International Law, 2nd ed., Oxford, 1973, p. 196.

2 Pufendorf, De jure naturae et gentium, translated from the Latin by C. H. and
W. A. Oldfather, Carnegie Institute, 1934, IV, 5, 5.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 81

glossator, and then the commentary of Baldo on D, 1, 8, 2, had already
generalized among jurists the distinction between proprietas, usus, juris-
dictio aut protectio.

The high seas, res communis omnium, is not something that lends itself
to ownership; its use is common to everybody, and this applies also to
fishing. The sea unquam fuit a communione hominum separatum, and
unlike land and rivers, there is no reason to divide it up; fish stocks in the
sea are inexhaustible and it would be iniquitous to divide up ownership
in them or the right to fish for them (iniqua nullo tempore praescribuntur) 1.

The mare adjacens is subject to the jurisdictio et protectio of the ruler
of the territory. Over that area the potestas of the master of the coast is
recognized without difficulty 2. Its foundation is the fact that the adjacent
sea is necessary to the defence of the territory itself; the coastal zone has
the same value as a moat 3 or a rampart 4.

Once jurisdictio over the adjacent sea has been recognized, there is no
difficulty in extending it to fisheries, with the possibility of excluding
foreign vessels from that area, or of demanding tribute for permission
to fish there 5. The width of the area of jurisdiction or imperium is justified
by the defence needs of the territory. It was fixed according to the range
of cannon 6, of the naked eye, of binoculars, or else in miles. The number
of miles varied according to countries and writers, from the 60 miles
attributed to Baldo down to three or four miles. The thinking of the 18th
century has been summed up as follows:

“It is not easy to determine just what extent of its marginal waters
a nation may bring within its jurisdiction. Bodin (De la République,
Liv. I, chap. X) claims that, following the common rule of all
maritime nations 7, the sovereignty of the Prince extends as far as
30 leagues from the shore. But this precise determination could only
be based upon a general consent of nations, which it would be

1 Grotius, Mare liberum sive de iure, quod Batavis competit ad Indicana commercia,
dissertatio, Ed. de H. Cocceius, Lausannae, 1752, IV, p. 469.

2 Grotius recognized that the imperium in maris portionem could exist by reason of
the territory, quatenus ex terra cogi possunt, qui in proxima maris parte versantur, nec
minus quam si in ipsa terra reperirentur. De iure Belli ac Pacis, II, 3, 13, 2, ed. Am-
stelaedami, 1735, I, p. 238. |

3 Unde dominium maris proximi non ultra concedimus, quam e terra illi imperari
potest, et tamen eo usque; nulla si quidem sit ratio, cur mare, quod in alicujus imperio est
et potestate, minus ejusdem esse dicamus, quam fossam in ejus territorio, Bynkershoek,
De dominio maris dissertatio, chap. IL, Opera omnia, Ed. Coloniae Allobrogum, 1761,
II, p. 103.

4 Every country “... is deemed to be the master of the sea which washes its coast
as far as it serves it as a rampart’. Pufendorf, loc. cit., IV, 5, para. 8. IL, p. 276.

5 On this question, see Cocceius in his commentary to Grotius’ De ‘ure Belli ac Pacis,
ed. Lausannae, 1751, II, p. 143. On the ‘Sardine War”, see Johnston, The International
Law of Fisheries, 1965, p. 169.

6 Potestatem terrae finiri, ubi finitur armorum vis, Bynkershoek, loc. cit., p. 104.

7 Barbeyrac comments that Bodin (I, ch. 80, ult.) agreed with Baldo that in the Law
of Nations the jurisdiction of a prince extends to a distance of 60 miles from the shores
of his territory, Notes to Pufendorf, loc. cit., p. 276, Note 7.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 82

difficult to prove. Each State may regulate as it thinks best the use
of those waters as far as the affairs of its citizens, either with one
another or with the Sovereign, are concerned; but between nation
and nation the most reasonable rule that can be Jaid down is that
in general the sovereignty of a State over its marginal waters extends
as far as is necessary for its safety and as far as it can be effectively
maintained; because on the one hand a nation may appropriate only
so much of common property, like the sea, as it has need for some
lawful end...”

3. This concept, which could be called the classical concept, and which
predominated until the middle of this century, is no more than the
development of ancient principles. Sovereignty over land is considered
to extend to the sea dominated by that land; this marine belt is equivalent
to a territorial sea. The imperium over the adjacent sea gives rights to
and imposes obligations on a State; these are of great variety (neutrality,
prize, contraband, customs, lighthouses, etc.) and they include in parti-
cular exclusive fishing rights.

In practice the difficulty to be overcome has been to reach an agreement
fixing the maximum distance in miles beyond which States are no longer
allowed to extend unilaterally their fisheries jurisdiction. Has any such
rule, ranking as an international custom, crystallized?

From the 18th century up to the Second World War the question of
the limits of fishing zones did not give rise to serious problems. It was
possible to say that the law of the sea was a model of stability in the
international community. The draft regulations concerning the territorial
sea in time of peace, prepared by the Institute of International Law at
its Stockholm session in 1928, well reflected the general opinion: “The
territorial sea extends for three sea miles. An international custom may
justify recognition of a greater or lesser breadth than three miles 2.”

4. The Declaration of Panama of 3 October 1939 has been regarded as
the first symptom of a withdrawal from the so-called classic conception
of the law of the sea. Twenty-nine nations, under the aegis of the United
States, established a neutral zone beyond the territorial sea, extending in
some places as far as 300 miles.

The origin of the crisis in the law of the sea with regard to fisheries is
to be found in the proclamations by President Truman (28 September
1945). The old principle of the division of the sea into two zones, the
territorial sea and the high seas or free seas, which had up till then been
regarded as dogma, was called in question or abandoned. A new zone,
that of the continental shelf, was now recognized. In that zone, the coastal

1 Vattel, The Law of Nations, 1, ch. 23, para. 289, trans. C. G. Fenwick, Carnegie
Institute, Classics of International Law, p. 108.
2 Annuaire de l’Institut de Droit international, 1928, p. 755.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 83

State has rights of exploitation of the natural resources of the sea-bed
and subsoil (the proclamations of President Truman only contemplated
the mineral resources of the shelf). There was also to be another zone
beyond the territorial sea, that of the superjacent epi-continental waters,
considered as sources of biological wealth; this was a zone over which
the right to establish reserved areas for the protection and conservation
of fisheries was asserted !.

The ideas enunciated by President Truman in his proclamations had
consequences unforeseen by their author. Their success is not to be
explained solely by the political weight of the United States; it was
justified by the changes which had occurred in the techniques of exploita-
tion of the sea-bed and fisheries. The theoretical basis of freedom of
fishing in the high seas (the zone outside the territorial sea), argued by
Grotius and followed by general opinion, had become unsound. The
inexhaustibility of fisheries proved to be an illusion. The new methods
of fishing made it necessary to take steps for the conservation of the living
resources of the high seas.

Thus new concepts entered international practice, marking “a reversal
of the traditional ideas on the liberty of the high seas” and principles
were stated of ‘ta new theory which was soon to throw international law
into confusion, by provoking ever bolder initiatives 2”. The Truman
Proclamations were subject to carefully drafted limits and reservations,
taking account of the interests of the States engaged in fishing in the
high seas, but they opened new prospects to learned speculation, and
afforded States plausible grounds for enlarging their zones of fishery
jurisdiction.

The special nature of the continental shelf once accepted, it should be
observed that it is neither easy nor natural to separate the legal status
of the various elements composing it, since they are closely linked together.
It would seem artificial to make a distinction between mineral resources
and living resources. De Buen proposed as early as 1916 (at the Madrid
Conference) the incorporation of the continental platform in the territorial
sea, as being the area most propitious to the development of edible
species of fish, and the most favourable fishing ground.

Thus the difficulty of defining the boundaries and the structure of the
continental platform—and the difficulty resulting from the existence of
coasts practically without a continental shelf—was to lead to the sub-
stitution, for geological, bathymetrical and geographical criteria, of the
simplified concept of an epi-continental zone established by each State
beyond its territorial sea, and varying in the extent.

5. Another trend favouring the enlargement of the fishery zone flowed

1 Spanish and South American precedents are quoted in Rojahn, Die Anspriiche der
lateinamerikanischen Staaten auf Fischereivorrechte jenseits der Zwélfmeilengrenze,
Hamburg, 1972, pp. 17-19; but they do not seem to have had any influence.

2 Ferron, Le droit international de la mer, Paris 1960, Vol. II, p. 141.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 84

from the fact that the idea of protection and conservation of fisheries
grew into the idea of jurisdiction in that connection over an area extending
beyond the territorial sea. Once the jurisdiction of the coastal State to
safeguard the conservation of fish stocks was recognized, the special
interests of the inhabitants of that country constituted a basis for the
establishment of preferential or exclusive rights over that zone in favour
of that State.

For one or other of these reasons, the fact is that following the Truman
Proclamations, there was a sort of chain reaction consisting of a series
of declarations in favour of extension of the fisheries jurisdiction of
States.

On 29 October 1945, Mexico declared that it claimed the whole area
of the continental platform adjacent to its coasts and all the natural
resources, known or unknown, to be found therein. On 11 October 1946,
Argentina declared that the epi-continental sea and the Argentinian
continental shelf were subject to national sovereignty. On | May 1947,
Nicaragua asserted sovereignty over the contiguous area of the high seas
or the waters of the continental shelf, up to 200 miles from the coast.
It should be observed that it is in this historical perspective, and against
the background of the trend flowing from the Truman Proclamations
that the Icelandic Law of 1948 concerning the scientific conservation of
the continental sheif fisheries should be placed and also interpreted.

The current legal revolution is in the course of being established thanks
to the Santiago Declaration of 18 August 1952, and the principles adopted
at the 3rd Meeting of the Inter-American Conference of Legal Advisers
held in Mexico in 1956, as well as at other conferences and meetings of
Latin American lawyers.

The claiming of exclusive jurisdiction over fisheries or of preferential
rights over wider and wider zones—6 sea miles, 12 sea miles, and even
200 sea miles—and the claim by coastal States to settle unilaterally their
fishery jurisdiction, have naturally led to alarm among the countries
interested in high sea fishing.

6. In order to put an end to such dangerous uncertainties, the Inter-
national Law Commission in 1949 included the law of the sea among the
subjects to be studied with a view to codification. In the third draft
prepared by the Commission for the United Nations Conference on the
Law of the Sea, the 12-mile rule was laid down as a compromise formula.
The Commission recognized that international practice was not uniform

1 On the legislative acts and declarations made at the time by Panama, Peru, Costa
Rica, Nicaragua, Honduras, El Salvador, Brazil, Ecuador and Venezuela, see Alvarez,
Los nuevos principios del derecho del mar, Montevideo 1961, pp. 21 ff. and Ferron, op.
cit., pp. 157 ff. On the doctrine of Latin American authors prior to 1961 (Bustamante y
Rivero, Ulloa, Garcia Montufar, Garcia Sayan) see Rojahn, Die Anspriiche, p. 144.

The attitude of the Latin American States has been described as ‘‘reactions to what
these nations felt to be a failure of international mechanisms to respond to fisheries
crises”: Jacobson, ‘Bridging the Gap to International Fisheries Agreement: a guide
for unilateral action”, The San Diego Law Review, Vol. 9, No. 3, May 1972, p. 465.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 85

with regard to the delimitation, and added: “The Commission considers
that international law does not permit an extension of the territorial sea
beyond 12 miles 1.”

The 1958 Conference showed the difficulty of reaching any consensus.
The International Law Commission draft, which would have set a maxi-
mum limit to the extension of the territorial sea, was blocked. The 12-
mile rule was acceptable neither to the countries who wished to keep the
3-mile rule nor to those who wished the possibility of a greater extension
to be recognized.

Each of the opposing tendencies at the Conference could boast of
certain resolutions in its favour. The conservative trend succeeded in
having freedom of fishing included in the Convention on the High Seas
as one of the four freedoms of the high seas; the high seas were there
defined as meaning all parts of the sea that are not included in the
territorial sea. The Convention on the Continental Shelf lays down that
the rights of the coastal State over the continental shelf do not affect the
legal status of the superjacent waters as high seas; in the definition of
natural resources, over which the coastal State has sovereign rights,
were included, in addition to mineral resources, living organisms belonging
to sedentary species, and only those organisms.

The innovating trend could also boast of a certain measure of success.
The Convention on Fishing and the Conservation of the Living Resources
of the High Seas recognized that the coastal State has a special interest
in the maintenance of the productivity of the living resources in any
area of the high seas adjacent to its territorial sea, which in certain
circumstances entitles it to adopt unilateral measures of conservation.
The Conference Resolution on Special Situations relating to Coastal
Fisheries recommended taking account of the “preferential requirements
of the coastal State resulting from its [economic] dependence upon the
fishery” where it becomes necessary “‘to limit the total catch of the stock
or stocks of fish in an area of the high seas adjacent to the territorial
sea”.

The Conference left unsolved the two most important questions,
namely that of the maximum extension of the territorial sea, and that of
the extension of the adjacent zone subject to the fisheries jurisdiction of
the coastal State.

It was in the climate of uncertainty and conflict of trends experienced
during the 1958 Conference that Iceland issued the decree of 30 June
1958 extending its fishing zone to 12 miles.

The Second Conference on the Law of the Sea (Geneva 1960) was
called to settle the question of the breadth of the territorial sea and of the
limits of fisheries zones; it was however a failure. But the 12-mile rule
made marked progress.

It is true that the proposal to limit the breadth of the territorial sea to
a maximum of 12 miles was rejected in committee (by 39 votes to 36,

1 Yearbook of the International Law Commission, 1956, Vol. II, p. 265.
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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 86

with 13 abstentions), but the compromise proposal made by the United
States and Canada, contemplating a zone of territorial sea of 6 miles
and a zone of exclusive fisheries jurisdiction of 6 miles, voted on at a
plenary session, failed to be adopted by one vote, one additional vote
being necessary for the text to receive a two-thirds majority (54 votes in
favour, 28 against, and 5 abstentions) !.

7. It should be observed that there are different understandings of the
12-mile rule both among States and among writers. By some it has been
regarded as a brake on the pressure of new States anxious to extend still
further their fisheries jurisdiction; for them it is the maximum permitted
extension. By other States it has been understood as a first stage towards
achieving recognition of the wider extension which they have in view;
for them it is the minimum extension acceptable.

It was in this atmosphere of conflicting trends, which came into the
open at the Conference of 1960, that the 1961 agreement must be exam-
ined. The trend of ideas opposed to the 3-mile rule had to be accepted;
but the United Kingdom did not recognize the rule permitting the
extension of fisheries jurisdiction up to the 12-mile limit as a general rule;
it accepted it, but only as a negotiated rule, and in consideration of the
special interests of Iceland. Iceland for its part did not recognize the 12-
mile rule as the maximum limit of its fisheries jurisdiction zone; it sought
an extension to 12 miles because that was what it was possible for it to
obtain at the time, but it regarded it as a provisional extension and
reserved the power of making a further extension, and applied itself to
implementing the Althing Resolution of 5 May 1959.

8. The failure of the 1958 and 1960 Conferences prevented any rule as
to the maximum limit for the fisheries zone from crystallizing. The
development of the law of the sea in this field took place in conditions of
anarchy, the dominant note being a progressive and accelerated extension
of the claims of coastal States 1.

In the confusion which reigns in the matter, several tendencies can be
distinguished which, in my opinion, can be summarized as follows.

In the first place, it should be observed that the possibility of extending
the exclusive fisheries zone beyond the territorial sea is practically gener-
ally admitted. The resistance set up by some States to the 12-mile rule is
continually decreasing 2. Writers in Europe and the United States also
recognize it as the maximum limit to the extension of the jurisdiction of

1 The compromise nature of the vote which occurred should be observed; it should
be examined in relation with the proposal by Brazil, Cuba and Uruguay on recognition
of preferential rights.

2 This “creeping jurisdiction” was observable between 1967 and 1971: Kahden,
Die Inanspruchnahme von Meereszonen und Meeresbodenzonen durch Kiistenstaaten,
2nd ed. 1971, preface.

3 Note however the protest by the United States against the declaration by Canada
extending its coastal zone to 12 miles (May 1970). Japan stated that it did not recognize
the 12-mile fishing zone, but in its agreement of 22 June 1965 with Korea is to be found
reciprocal recognition of the 12-mile zone.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 87

coastal States. This tendency in favour of the 12-mile rule has made it
possible to say that the 12-mile limit appears to be “the magic number”
for the great majority of States !.

In the other direction, it is apparent that the trend originating in Latin
America towards extending the zone of fisheries jurisdiction up to the
200-mile limit appears to be becoming more firmly established; in this
connection one might quote the Declaration of Montevideo of 8 May
1970, and the declaration of Santo Domingo of 7 June 1972. This trend
is spreading to other continents. In the report of the Asian-African Legal
Consultative Committee on its 12th Session in Colombo (18-27 January
1971), it is said that most of the delegations were ready to accept a 12-mile
limit for the territorial sea, but coupled with an affirmation of the rights
of the coastal State to claim exclusive jurisdiction over an adjacent zone
for economic purposes. See also the recommendations drafted at Yaoundé
(20-30 June 1972) 2.

The seed sown by the Truman Proclamations is still bearing fruit, and it
is from them that innovating ideas continue to spring concerning the law
of the sea 3.

The recognition of a third maritime zone, inserted between the territo-
rial sea and the high seas, is the basis of a new concept, that of the patri-
monial sea or economic zone. According to the Declaration of Santo
Domingo, the coastal State has sovereign rights over the renewable and
non-renewable natural resources which are found in the waters, in the
sea-bed and in the subsoil of an area adjacent to the territorial sea called

1 Bouchez, ‘Some Basic Problems of Coastal State Jurisdiction and the Future
Conference on the Law of the Sea”, Annals of International Studies, Vol. IV, 1973,
p. 155.

2 It has been announced in the press that the 77 developing countries meeting in
Nairobi (Kenya) decided to defend the right to a 200 sea-mile limit for coastal States
at the United Nations Conference in Caracas.

3 The tendency to extend fisheries zones in the interest of coastal populations may
also be observed in countries of the Western group.

The Senate and House of Representatives of Massachusetts, assembled in General
Court, authorized the Director of the Division of Marine Fisheries, with the approval
of the Governor, to extend jurisdiction up to 200 miles for the purposes of conservation
and protection of maritime resources (Massachusetts, An Act Relative to the Territorial
Waters of the Commonwealth). In 1972, Congress of the State of Maine requested the
Secretary of State and the delegation to the United States Congress to extend juris-
diction over fisheries to the whole extent of the continental shelf (J. H. Samet and
R. L. Fuerst, The Latin-American Approach to the Law of the Sea, University of North
Carolina, Sea Grant Publication, March 1973, App. A and B, pp. 150-151). In the
United States, there are conflicts between the states and the Federal Government. New
England is in favour of an extension of jurisdiction to protect coastal fisheries. Cali-
fornia favours limiting jurisdiction, taking account of cod fishing in the high seas.
Military interests operate in favour of the 12-mile limit (Hjertonsson, The New Law
of the Sea, “Influence of the Latin American States on Recent Developments of the
Law of the Sea”, Leiden-Stockholm, 1973, p. 96).

In Canada, the Governor is authorized to prescribe by Order in Council fishing zones
in areas of the sea adjacent to the coast of Canada (Law of 16 June 1970 amending the
Law on the Territorial Sea and Fishery Zones, new paras. 4 and 5A).

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 88

the patrimonial sea; the area of the territorial sea and the patrimonial sea,
taking into account geographic circumstances, should not exceed a
maximum of 200 sea-miles.

In the Truman Proclamation, and at the 1958 Conference, reference
was made to the natural resources of the continental shelf over which it
was recognized that the coastal State had an exclusive right, in order to
define the scope thereof, with a view to respecting the freedom of fishing
in the high seas. At the present time, the reference to rights over natural
resources is taking a new turn. A point has been reached at which the
right of States is reaffirmed to permanent sovereignty over all the natural
resources of the sea-bed and subsoil within their national jurisdiction, and
in the superjacent waters. This is also what was said in General Assembly
resolution 3016 (XXVIL), in a recommendation adopted by the Commit-
tee on Natural Resources of the Economic and Social Council (Session of
February 1973) and in a resolution of the Economic and Social Council
(April-May 1973) !.

It seems to me that with its Resolution of 1972, Iceland followed the
same tactics as those which had previously brought it success. It faced the
defendant State with a fait accompli, and did so in the conviction that the
development of the law of the sea is moving towards a justification of its
decision. Iceland may cherish the hope that the trends in favour of exten-
sion of fisheries zones will obtain the support of the greater number of
States at the Caracas conference 2.

IV. THE Law TO BE APPLIED

1. The complaint brought before the Court by the Applicant against
Iceland is that of having committed a breach of international law by
unilaterally extending its fisheries zone in 1972. The Exchange of Notes of
1961 contains the provision by which Iceland reserved the possibility of
extending its fisheries zone in implementation of the Althing Resolution
of 1959. But the Applicant contends that the Resolution of 1972 conflicts
with the law established in 1961, and that Iceland cannot act in this way
without proving that the 12-mile rule is no longer in force (United King-
dom Memorial, para. 229; Federal Republic Memorial, Part IV, para.
60). Reference is also made to the disregard by Iceland of “‘such long-
established legal rights” of the Applicant (United Kingdom Memorial,
para. 229).

1 The travaux préparatoires of the Caracas Conference should be taken into account,
though cum grano salis, as of assistance in ascertaining the present tendencies amongst
States; in addition they reveal the taking up of positions with a view to the discussions
during the Conference.

2 The Government of the United Kingdom has explained, in its reply to a question
by a Member of the Court, that in para. 297 of its Memorial it intended to make the
point ‘‘that the forthcoming Third United Nations Conference on the Law of the Sea
may reveal whether a consensus can be reached which will bring about a development
in the law so as to permit the kind of claim which Iceland is now making”.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 89

In order to express my view in such a way as to avoid the difficulties
resulting from the lack of clarity of the Applicant’s argument, it seems to
me to be as well to deal with the various issues one by one.

The established rights relied on are said to be based on ‘the existing
law and established legal rights” (ibid). The Respondent’s rights have a
contractual basis, namely the exchange of Notes. The Respondent has
acquired rights, but rights which are subject to a pre-condition unspecified
in point of time (dies incertus an et incertus quando). The right of the
Applicant is an established right subject to a limitation, i.e., up to the date
when Iceland exercises the power it has reserved of extending its fisheries
jurisdiction. By exercising that power, Iceland does not infringe any
established right of the Applicant to respect by Iceland of the 12-mile
limit. The Applicant is entitled to appeal to the Court, but only on the
grounds that Iceland has not honoured its commitment to submit to the
Court the dispute concerning the extension.

Nor is it justified to refer to an established right under international! law
in force in 1961. The situation existing in 1961 is not what is before the
Court. The act complained of by the Applicant is the 1972 Althing
Resolution, that is to say a different situation, that of an extension which,
although foreseen in 1961, was not effected until 1972. This is a new fact,
the legality of which must be considered solely at the time when it occurs
(tempus regit factum). It is precisely that new fact with regard to which it
was provided that in case of dispute between the parties the matter would
be brought before the Court. The Applicant has no established right to
the extension being perpetually limited to 12 miles, on the basis of inter-
national law in force in 1961 1.

2. The key argument of the Applicant is that the 12-mile rule is the
international law in force on the subject, because it has become a rule of
customary law, and also because it has not been abrogated by a contrary
custom. We must therefore consider whether the 12-mile rule amounts to
a rule of customary international law.

According to the communis opinio, a customary international right
comes into existence when a practice crystallizes which has the following
distinguishing marks:

(a) General or universal acceptance. There should be no doubt as to
the attitude of States. The rule in question must be generally known
and accepted expressly or tacitly. What has led to the view that
international custom is binding is that it expresses a consensus tacitus
generalis, if not as a sort of tacit agreement, at least as the expression
of a general conviction. For an international custom to come into
existence, the fact that a rule may be adopted by several States in
their municipal legislation, in treaties and conventions, or may be
applied in arbitral decisions is not sufficient, if other States adopt a

1 This appears to have been conceded by the Applicant when in its oral statement it
expressed the view that the 12-mile rule was not yet in force in 1961.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 90

different rule, and it will not be opposable to a State which still
opposes its application U.C./J. Reports 1951, p. 131). The existence of
a majority trend, and even its acceptance in an international conven-
tion, does not mean that the convention has caused the rule to be
crystallized or canonized as a rule of customary law (/.C.J. Reports
1969, p. 41).

(b) Uniform practice. For a new rule of international law to be formed,
the practice of States, including those whose interests are specially
affected, must have been substantially or practically uniform (/.C_/.
Reports 1951, p. 25; C.J. Reports 1951, pp. 116 and 131; LC.
Reports 1969, p. 42).

(c) A considerable period of time. It is time which ripens a practice and
transforms it into a custom. In the texts, such terms are used as
praescripta consuetudo, vetustas, per plurimos annos observata,
diuturnis moribus introductum, etc. The Court has recognized the
possibility of some relaxation of the requirement of a considerable
length of time, but only on condition that:

“State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked;—and should more-
over have occurred in such a way as to show a general recognition
that a rule of law or legal obligation is involved.” (.C.J. Reports
1969, p. 43; see also p. 45.)

(d) Opinio Juris

“Not only must the acts concerned amount to a settled practice,
but they must also be such, or carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it ... States ... must therefore
feel that they are conforming to what amounts to a legal obligation.”
(LCI. Reports 1969, p. 44.)

Taking account of these conditions, we must consider whether the
12-mile rule is in the nature of an international custom. In order to give
an unambiguous reply to this question it is necessary when putting it to
make a distinction between the two meanings which may be given to the
expression ‘“‘I2-mile rule”.

(i) The 12-mile rule means that States can no longer object to another
State extending its fisheries jurisdiction zone to 12 miles.

(ii) The 12-mile rule means that States cannot extend their fishing zone
beyond 12 miles.

Her Majesty’s Government seems to me to have given a proper reply to
a question put by Judge Sir Humphrey Waldock, when it was stated on its
behalf that:

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 91

“It could not safely be said that the new rule had emerged until
Japan, a State whose interests were certainly specially affected in the
meaning of that principle, decided that it could not effectively
challenge in law the legislation of New Zealand and the United States.
As from that moment, in our submission, it was reasonable to
maintain that, notwithstanding continuing disagreement on the
breadth of the territorial sea, there was then by that stage a new rule
of law to the effect that a coastal State was entitled to an exclusive
fishery limit of 12 miles.” (CR 74/3, p. 40.)

This is quite correct, and it was possible to take the view that the
resistance of the countries which continued to oppose extension of
exclusive fisheries jurisdiction to 12 miles was overcome at that moment.
For that reason, it is possible to say that the 12-mile rule, with that
meaning, has become a customary rule.

But to concede the possibility that States might claim an exclusive
fisheries zone of 12 miles does not lead as a logical or necessary con-
sequence to the conclusion that ‘‘the figure of 12 miles was the correct
limit in accordance with international law for the purpose of defining the
zone in which the coastal State is entitled to exclusive fishery rights”
(ibid., p. 40). This statement is an answer to a different question, which
should be examined separately.

The question is as follows: is there an existing rule of customary law
which forbids States to extend their fisheries jurisdiction beyond 12
miles? Before replying in the affirmative to this, it would be necessary to
be satisfied that such a rule meets the conditions required for the birth of
an international custom.

In Part III of the present opinion, which was devoted to the develop-
ment of the law of the sea with regard to fisheries, it was made clear that
a continually increasing number of countries do not agree to limit their
fisheries jurisdiction zone to 12 miles 1. Before 1961, from the time of the
Truman Proclamations onwards, there were manifestations contrary to
that rule, in legislation, at Inter-American conferences, and in the discus-
sions of the International Law Commission 2. Since 1961, and in particu-
lar in 1972, it is difficult to regard the trend in favour of the 12-mile rule as
supported by a majority. The 12-mile rule has at no time been accepted in
a general or universal way as fixing a maximum limit 3.

It should also be noted that before and after 1961, during the period
which may be regarded as that of the coming into existence of the rule,
Iceland, which is certainly a State whose interests are specially affected,
made known its opposition to the rule expressly and persistently 4.

1 The 12-mile rule may on the other hand be regarded as applicable to the limit of
the territorial sea.

2 Quotations in Rojahn, Die Anspriiche, p. 164.

3 On the present majority trend, see Stevenson, “Who is to Control the Oceans:
U.S. Policy in the 1973 Law of the Sea Conference”, The International Lawyer, VI,
No. 3, July 1972.

4 Quotations in Rojahn, “Die Fischereigrenze Islands vom 1 September 1972 im

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 92

According to the most authoritative writers, and following the doctrine
of the Court itself U.C.J. Reports 1950, p. 65; I.C.J. Reports 1951, p. 131;
LC.J. Reports 1969, p. 42, para. 73) the express will of a State during such
a period prevents the coming into existence of a custom. The majority
principle does not apply, even if a majority exists. To apply it would be
contrary to the principles of sovereignty and equality of States.

In the 1961 Exchange of Notes, Iceland denies by implication that the
12-mile rule is a rule of customary international law limiting the extent of
the fishery zone. This is the meaning which should be attributed to the
direct reference to the 1959 Resolution and the indirect reference to the
1948 Law. A reservation was made in favour of a zone extending to the
boundary of the continental shelf. I do not consider that this reservation
should be interpreted as being subject to there being a change in interna-
tional law. There is only one limitation on the reservation made, namely
that in case of dispute as to the extension, the question was to be brought
before the Court. It may be supposed that the Icelandic Government
might have intended, as a matter of political prudence, to await the most
favourable moment from the point of view of international opinion in
order to carry out the announced extension, but that is another matter.

3. Nor do I consider that the authority of the 1958 conventions can be
invoked in favour of the 12-mile rule. Article 24 of the Convention on the
Territorial Sea and the Contiguous Zone mentions a limit of 12 miles for
the contiguous zone, but in four specific fields (customs, and fiscal, immi-
gration or sanitary regulations) and does not envisage fisheries. Nor is this
an oversight: the question of fisheries was in everyone’s mind. This is a
case in which it may be well to apply the old adage inclusio unius exclusio
alterius.

Article 2 of the Convention on the High Seas has also been cited as
evidence that Iceland has violated, by its 1972 Resolution, the principle
of freedom of fishing in the high seas enshrined in Article 2 of the Con-
vention on the High Seas !. It is true that in zones forming part of the high
seas “fishing ... could only be shared and not exclusive” (separate
opinion of Sir Gerald Fitzmaurice, /.C.J. Reports 1973, p. 69, para. 5).
But I am afraid that to do no more than apply this criterion would be to
beg the question, because it would be to admit by implication that the
extent of the high seas was mathematically fixed by international law.
But this is far from being the case. The extent of the territorial sea has not
been established. The practice of States shows that the territorial sea has
been extended, for example, from 3 to 4 miles, or from 4 to 12 miles, on
each occasion at the expense of the high seas. Can it not be extended

Lichte maritimer Abgrenzungsprinzipien des Internationalen Gerichtshofes”, Archiv
des Vélkerrechts, Vol. XVI, No. 1 (1973), pp. 39, 41, 43, 47; see also Nelson, “The
Patrimonial Sea”, International and Comparative Law Quarterly, October 1973, p. 673,
Note 29.

1 If the Icelandic Resolution of 1972 is open to criticism it is on the ground that it
is contrary to the Exchange of Notes, and has not been duly justified.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 93

beyond 12 miles when circumstances or special reasons justify it? It
should also be observed that since the 1960 Conference on the Law of the
Sea there has been a trend, which cannot be overlooked, toward recogni-
tion of a third zone, between the territorial sea and the high seas, over
which States can claim a form of jurisdiction, without any pretension to
sovereignty 1. Can this not be extended beyond 12 miles? While it does not
seem necessary to reply to these questions, it is difficult to see how the
implementation of the 1959 Althing Resolution, which was envisaged in
the 1961 Exchange of Notes, can in 1972 be contrary to international law
vis-a-vis the United Kingdom, if it is not conceded that between 1961
and 1972 the 12-mile rule entered customary law. Has the 12-mile rule,
having found the door closed, crept in by the window?

It seems to me also that it is not possible to base any useful argument
whatever on the Convention on the Continental Shelf, or on the com-
ments on it by the Court to the effect that the coastal State has ‘‘no
jurisdiction over the superjacent waters” of the continental shelf (.CJ.
Reports 1969, p. 37, para. 59). The significance of these is that a State has
no jurisdiction over the superjacent waters by virtue of its rights over the
continental shelf, but this reservation concerns the régime of the super-
jacent waters in so far as they appertain to the high seas, and not the
superjacent waters when they are regarded as territorial waters, contigu-
ous zone, or fishing zone subject to the jurisdiction of a State.

There are no well-founded arguments in favour of the binding character
of the 12-mile rule; those built upon ad hoc interpretations of articles in
the 1958 conventions do not convince. The 1958 Conference failed in its
attempt to fix a limit to fisheries jurisdiction. How can one deduce from
the conventions what the parties to the Conference refused to say?

4. Another question should be examined, although it has not been
raised by the Applicant. The extension effected by Iceland in 1972 was
disputed by the United Kingdom and, in violation of the compromissory
clause of the 1961 Exchange of Notes, Iceland has refused to appear
before the Court. It should be considered whether the consequence of
Iceland having acted in this way is that the extension which it has decreed
is not opposable to the United Kingdom, and whether the Court should
confine itself to stating as much in its Judgment.

I do not consider that this argument has a sound legal basis either in the
Parties’ agreement, or in the Statute of the Court, or in the law of
treaties.

The 1961 Exchange of Notes recognized that Iceland had the power to
extend its fisheries jurisdiction on the sole condition that this was done in
implementation of the 1959 Althing Resolution. It was after the extension,
and if there should be a dispute between the Parties, that the question
could be brought before the Court. This was not a right conferred on the

1 This is recognized in the proposal to limit territorial waters to 6 miles and the zone
of exclusive fishing rights to a further 6 miles.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 94

United Kingdom; the question could be brought before the Court at the
request of either Party. Iceland could have done so, for example, if the
extension it had decided to make was disregarded by the Applicant, if,
instead of bringing the dispute before the Court, the Applicant had sent
its fleet to protect its fishing vessels. The Notes contain no penal clause or
clause providing any sanction if one of the Parties failed to appear.

The Statute of the Court (Art. 53.), in harmony with modern procedural
law, does not treat a party in default as guilty, and is far from regarding
failure to appear as a ficta confessio. The Court, using its own means,
and taking account of the facts of which it is aware and of the applicable
law, must ascertain whether the extension is valid or not and to what
extent it may be valid.

Finally, the Applicant does not raise the non-fulfilment of Iceland’s
duty to submit the dispute to the Court as a ground for abrogation of the
treaty, and for its being absolved from its obligations toward Iceland; on
the contrary, the Applicant contends that the agreement is still in force.

5. I cannot see that there is any other customary rule fixing the extent
of the fishery zone. The 200-mile rule cannot be regarded as an accepted
one, and as thus conferring on States the right to extend their jurisdiction
to that extent. Despite the progress which it has made in recent years, it is
not marked either by the uniformity or the general acceptance which it
would require in order to be regarded as a customary rule, even of
regional extent 1.

Against the contentions of the Applicant, Judge Padilla Nervo has
argued that:

“The progressive development of international law entails the
recognition of the concept of the patrimonial sea, which extends from
the territorial waters to a distance fixed by the coastal State con-
cerned, in exercise of its sovereign rights, for the purpose of protec-
ting the resources on which its economic development and the liveli-
hood of its people depends.” (Dissenting opinion, 1.C.J. Reports
1973, p. 41.)

The view of Judge Padilla Nervo must be rejected for several reasons.
The patrimonial sea is a compromise concept, which is worthy of con-
sideration but which does not meet the conditions required of a rule of
law. The countries represented at Santo Domingo did not claim that
their proposal concerning a zone of patrimonial sea should be applicable
to all Latin American States, or that it was generally favoured by them,
but they regarded it as a contribution to the working out of an eventual
joint Latin American formula 2.

1 Garcia Amador observes that the differences relate to the very nature of the claims,
Latin-America and the Law of the Sea, University of Rhode Island, Occasional Paper
No. 14, 1972, p. 1. On the protests of States and of writers, see Rojahn, “Zur zukiinf-
tigen Rechtsordnung des Festlandsockels und der Fischerei auf dem Hohen Meer”,
Jahrbuch fiir internationales Recht, Vol. XV, 1971, p. 407.

2 Castañeda, ‘The Concept of Patrimonial Sea in International Law”, Indian Jour-
nal of International Law, Vol. 12, No. 4, October 1972, p. 538.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 95

Nor should it be overlooked that the task of encouraging the progres-
sive development of international law, for which the initiative belongs to
the General Assembly (United Nations Charter, Art. 13), was entrusted
to the International Law Commission (Statute of the Commission, Art.
15). The Court is not a legislative body (/.C./. Reports 1966, p. 48); its
function is to decide in accordance with international law such disputes
as are submitted to it (Statute, Art. 38).

Finally it should be observed that the question of the sovereign rights
of States as to the fixing of zones of jurisdiction has been badly expressed.
The Court has made clear what is truly within the national competence of
each State:

“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.)

6. Our examination of these questions up to this point leads to the
pessimistic conclusion that there is in international law no binding and
uniform rule fixing the maximum extent of the jurisdiction of States with
regard to fisheries. From this conclusion it has been deduced that there is
a legal vacuum, but in my opinion this deduction is not based on con-
clusive reasons.

The Prime Minister of Iceland, adopting the same line as is to be found
in declarations by Latin American States, and the writings of authors
from those countries, has stated in a speech before the [celandic Parlia-
ment:

‘Since there are no generally agreed rules on the width of the
territorial limit in terms of international law, it must be in the power
of every State to decide its territorial limit within a reasonable
distance.” (Cited from a pamphlet entitled /celand and the Law of the
Sea, issued by the Government of Iceland in 1972, pp. 31-32;
quotation in Part IV, para. 58, of the Memorial of the Federal
Republic of Germany.) !

From an opposite point of view, and by way of reductio ad absurdum,
it has been said that:

‘“...so soon as it is admitted that international law governs the
question of the breadth of the territorial sea, it follows automatically
that international law must also prescribe a standard maximum

! For quotations of Latin American writing in the same sense, see Rojahn, Die
Anspriiche, p. 168. See also the statement by the Icelandic delegate in the General
Assembly on 17 December 1973 (quoted in CR 74/1, pp. 61-62).

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 96

breadth, universally valid and obligatory in principle ... If this is
not so, then international law would net govern the question of the
extent of the territorial sea . . .” (Fitzmaurice in XXXI BYIL, 1954,
p. 386.)

It would of course be better for legal security if a mathematical rule
existed. But law also has “‘safety valve” rules, which provide flexibility in
the legal rules, and permit of more just solutions for individual cases to be
found at the expense of legal security (e.g., the concepts of good faith,
bonos mores, comitas gentium, misuse of right, droits de voisinage). In
another case which also concerned the delimitation of zones of jurisdic-
tion with regard to fisheries, the Court showed how it was necessary to
take into account considerations which: **. . . bring to light certain criteria
which, though not entirely precise, can provide courts with an adequate
basis for their decisions, which can be adapted to the diverse facts in
question”’ and for this purpose, there was:

“ee

. one consideration not to be overlooked, the scope of which
extends beyond purely geographical factors: that of certain economic
interests peculiar to a region, the reality and importance of which
are clearly evidenced by a long usage” (/.C.J. Reports 1951, p. 133)1.

The flexibility of a rule is not a reason for denying its existence. Failing
a rule for the mathematical delimitation of the zones, “there are still rules
and principles of law to be applied” U.C./. Reports 1969, p. 46, para. 83).

The defeatist idea that the determination of fisheries jurisdiction zones
is a question of municipal law, within the national competence of each
State, must be rejected. It is contrary to the principle of the freedom of
the high seas, the principle which underlies the statement by the Court
quoted above, to the effect that the validity erga omnes of the delimitation
of sea areas is a matter ofinternational law (Z.C.J. Reports 1951, p. 132).

To leave to the unfettered will of each State the uncontrolled power to
lay down the limits of exclusive fishing zones is contrary to the spirit of
international law. The principle of equal rights of peoples (United
Nations Charter, Art. |, para. 2) does not permit of the unilateral] creation
of monopolies over zones of the high seas, at the expense of other States.

! It has been said with regard to this judgment that it contains implicit recognition
“of the futility of the quest for uniform rules to determine the extent of exclusive
fishery rights for wholly different situations”. The advice of the author of this comment
is that to resolve the questions arising in this field, efforts should be made to ensure
“that the settlement be as rational, equitable and expert as humanly possible”. Douglas
Johnston, The International Law of Fisheries, Yale University Press, 1965, p. 248. The
conclusion of regional agreements is also to be recommended: see Vigne, Le rôle des
intérêts économiques dans l'évolution du droit de la mer, Geneva, 1971, p. 119.

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FISHERIES JURISDICTION (SEP, OP. DE CASTRO) 97

It is generally conceded, even by the Latin American States, that the
high seas are free, and that freedom of fishing is one of the four freedoms
of the seas !.

The high seas are not res nullius to be appropriated by the first-comer,
nor by the most powerful 2. They belong to the community of peoples, or
to mankind 3. The high seas are regarded as res omnium communis, and
the use of them belongs equally to all peoples. The appropriation of an
exclusive fisheries zone in an area hitherto considered as part of the free
seas 1s equivalent to deprivation of other peoples of their rights. The
extension of its jurisdiction over the adjacent sea by a coastal State
presupposes a reduction of the freedom of fishing of other States, and
such respective increase and loss of power calls for legal justification. At
all times, States have endeavoured to justify their claims in one way or
another. According to Vattel (op. cit., above), there must be ‘‘some
lawful end” for the appropriation of something which is common
property. Judge Alvarez contended that States might alter the extent of
the territorial sea “provided that they furnish adequate grounds to
justify the change” (individual opinion, 1.C.J. Reports 1951, p. 150) 4.

7. Lthink that the principle of the freedom of the high seas is as valid
as ever it was, but it does not operate in isolation, it must be applied in
accordance with existing circumstances and the views currently held. In
the time of Grotius, and up to the end of the Second World War, the
principle could be expressed in absolute terms; today, reality is otherwise,
and compels us to express it more moderately, and to harmonize it with
other secondary principles.

The case before the Court requires a just solution to be found to the
conflict which is emerging between the principle of the freedom of the
high seas with regard to fisheries, and the trends in favour of extension of
the zone of jurisdiction of coastal States. But for this purpose it should be
borne in mind that the Court does not have to decide a general and

1 This is the principle enshrined in Articles 1 and 2 of the 1958 Geneva Convention
on the High Seas. This Convention lays down on this point general principles of
international law established long before their formulation in the Convention (1.C.J.
Reports 1969, p. 39, para. 65).

2 This is, I think, the general opinion. On the question of the nature of the high seas,
see Jenisch, Das Recht zur Vornahme militärischer Ubungen und Versuche auf Hoher
See in Friedenszeiten, Hamburg, 1970, pp. 43-52.

3 General Assembly resolution 2749 (X XV) of 17 December 1970 refers in paragraph
1 to the common heritage of mankind. On the idea of fishing zones as ‘property
devoted to a purpose” (Zweckvermégen) and relevant references, see Rojahn, Die
Anspriiche, p. 171; on the concept of coastal nations as trustees for the international
community, see President Nixon’s statement of 23 May 1970, quoted by Rojahn in
“Zur zukünftigen””, p. 425.

4 Quotations on the criterion of what is reasonable will be found in Brownlie, pp. 196
and 215. The Prime Minister of Iceland has referred to what is “reasonable” (Memorial
of the Federal Republic of Germany, Part IV, para. 58). See also 1.C.J. Reports 1951,
p. 131 ‘“‘moderate and reasonable”; 1.C./. Reports 1969, pp. 52 and 54, paras. 98 and
101 (D) (3): “reasonable degree of proportionality”, But the criterion of what is
reasonable should be determined objectively.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 98

abstract question, but a dispute between two countries, for the settlement
of which the positions and relationships of the Parties should primarily be
considered.

The consideration of “the close dependence of the territorial sea upon
the land domain” (/.C.J. Reports 1951, p. 133) also underlies the recog-
nized extent of the new zone of fisheries jurisdiction. But the establishment
of jurisdiction over the fishing zones must be justified by the special
interest of the coastal State, and by the existence of reasons permitting of
the recognition that that State has preferential or priority rights.

The 1958 Conference recognized the concepts of ‘‘special interest”,
“preferential requirements” and “just treatment” (Convention on Fishing
and Conservation of the Living Resources of the High Seas, Art. 6;
Resolution on Special Situations Relating to Coastal Fisheries). The
scope of these concepts is limited to fishery conservation, and the situation
of countries whose coastal population depends on fishing. At the 1960
Conference, Brazil, Cuba and Uruguay proposed a text in which it was
said that ‘the coastal State has the faculty of claiming preferential fishing
rights in any area of the high seas adjacent to its exclusive fishing
zone ...”; this draft furthermore almost obtained unanimity, but as
has already been stated, it failed to be adopted, along with the proposal
by Canada and the United States.

Although these concepts have not been enshrined in a convention, and
despite the restrictions subject to which they were advanced, in fact what
is happening to them is what happened tothe Truman Proclamations,
they are the ‘starting point of the positive law on the subject” (.C.J. Re-
ports 1969, pp. 32-33). They are accepted as something natural. Asexamples
of this development, one might mention the recommendation of the Ameri-
can Bar Association of August 1964 (para. 1 (5), quoted by Johnston,
op. cit., p. 252, note 346), the draft of the Inter-American Committee of
1956, the Statement by President Nixon of 23 May 1970 (quotations in
Rojahn, “Zur zukünftigen”, p. 412), and the proposal of the United States
according to Stevenson (/oc. cit., pp. 469-470). In United Nations
General Assembly resolution 2750 C (XXV) of 17 December 1970, in
which the subjects to be dealt with by the Conference on the Law of the
Sea are laid down, is included the question of the preferential rights of
coastal States. The Government of the United Kingdom “‘accepts that
the concept of preferential! fishing rights of coastal States and the spirit
of the proposals embodied in the three-Power amendment are applicable,
are relevant, to the solution of the present dispute” (CR 74/3, pp. 16-17) !.

Along with the special interest and the preferential rights of the coastal
State, account should be taken of the historic rights of the countries
concerned with high sea fishing. The acquisition of rights over the sea by
prescription is not admitted, but long usage should be respected, and

1 See also CR 74/1, pp. 82-83.
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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 99

that for the same reasons as for the interests of the coastal State. It is
contrary to the concept of justice to disregard situations which have been
established for years, the capital invested, the establishment of industries,
the protein needs of populations, and above all the confidence inspired by
a respect for the status quo concerning the use of the high seas as com-
mon property.

8. The difficulties in the way of harmonizing these interests are not
insurmountable. This practical possibility of effecting a delimitation of
the respective rights is well demonstrated, for example, in the negotiations
with a view to fixing the different countries’ fishing quotas in the North-
West Atlantic, and the agreements concerning fisheries in the region of
the Faroe Isles (CR 74/3, pp. 48-55).

The conduct of the parties results from recognition of their respective
interests. Study of the Exchanges of Notes of 1961, and the documents
supplementary thereto (the Resolutions of 1948 and 1959), shows that the
right unilaterally to declare an extension of jurisdiction, as reserved by
Iceland, is not an absolute right. It requires justification. Extension is
contemplated if it becomes necessary for reasons relating both to the
conservation of fisheries and the needs of the Icelandic people. That re-
servation was accepted by the Applicant. Iceland for its part tacitly
recognized the historical rights of the Applicant in 1961 and in 1972.
There is thus mutual recognition of preferential rights and historic rights,
coinciding with the present trends in practice, and with what writers have
argued to be desirable.

In the North Sea Continental Shelf cases, the Court was in a situation
which was to some extent analagous to the present situation, inasmuch
as there was no mathematical rule to be applied to the delimitation of
adjacent zones of the continental shelf. It did not follow from a denial
that the equidistance rule was a legal rule that another “single equivalent
rule” had to be found. Failing a single rule enabling the areas to be
delimited, the Court stated that nonetheless “there are still rules and
principles of law to be applied” (/.C./. Reports 1969, p. 46, para. 83).

When the General Assembly decided to convene the Conference on the
Law of the Sea, it said that its purpose would be “‘the establishment of an
equitable international régime” (resolution 2750 C (XXV) of 17 Decem-
ber 1970). The Court applies “equitable principles”, which, ‘‘on a
foundation of very general precepts of justice and good faith” lead to
actual rules of law.

“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, in accordance with the ideas
which have always underlain the development of the legal régime
of the continental shelf in this field...” (C.J. Reports 1969, pp.
46-47, para. 85.)

There is no need to demonstrate and prove what is a matter of general
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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 100

knowledge and general recognition, namely the changes which have
occurred in fishing techniques, the risk of exhaustion of fish stocks
resulting therefrom, and the increasing protein requirements of ever more
numerous populations.

9. It cannot be concealed that it is difficult to see how the concepts of
special rights, preferential rights and historic rights can be brought under
the heading of one of the sources of international law. It is not easy to
prove the existence of a general practice accepted as law, nor would
these concepts appear to form part of the general principles of law recog-
nized by civilized nations. But it does appear possible to overcome the
difficulty resulting from the unfortunate drafting of Article 38 of the
Statute with the assistance of the teachings of the most highly qualified
writers. One cannot make a sharp division between customary law and
the principles of law. At the origin of the modern doctrine, in the his-
torical school to which legal science owes the foundations of the theory
of custom, they can be seen to be closely united. Savigny teaches us that
practice (usages) is not the foundation of customary law, but that it is the
sign by which the existence of a custom may be known. The custom is
produced by the community of conviction, not by the will of men, whose
acts only manifest this community of ideas !. This observation is still of
assistance. In order to be binding as a legal rule, the general conviction
(opinio communis) does not have to fulfil all the conditions necessary for
the emergence of a custom. This is what explains the value of opinio
juris, and why it may confer on one single act the possibility of becoming
“the starting point of the positive law” U.C.J. Reports 1969, pp. 32-33).

V. PROCEDURAL QUESTIONS

The Court is also faced with difficult questions of procedure. Should
the Court confine itself to upholding or rejecting the submissions of the
Applicant, or should it endeavour to do justice by deciding the question
of the extension?

The first difficulty lies in ascertaining the meaning of the compromissory
clause. The Court examined its history and its significance in the Judg-
ment of 2 February 1973 on jurisdiction. According to the documents
known to the Court, Iceland did not wish to be bound definitively and
permanently by the 12-mile limit; it wished to preserve full freedom to
extend its fisheries jurisdiction and to implement the Althing Resolution
of 1959 unilaterally. The United Kingdom showed itself ready to accept

1 Savigny, System des heutigen rémischen Rechts (1840), I, paras. 12 and 18. Puchta,
Pandekten, para. 12, Fifth Edition (1850), p. 19; Cursus der Institutionen, 1, para. 13,
Ninth Edition (1881), pp. 18 and 19. The Court has referred to usages accepted as
expressing principles of law: P.C.I.J., Series A, No. 10 (1927), p. 18.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 101

the reservation by Iceland of this power to implement the Althing Resolu-
tion, on condition that the extension was in accordance with an interna-
tional agreement embodying a generally accepted rule of law in relation to
fishery limits, or in conformity with a rule of international law, established
by general consent, which would permit such an extension (United
Kingdom Memorial on jurisdiction, para. 29).

The two Parties held tenaciously to their positions. The form proposed
by the United Kingdom might appear to reserve a right of veto in respect
of any future attempt to extend jurisdiction; the opposition of the
United Kingdom would be sufficient to prevent the emergence of a new
general customary law which would permit a further extension. On the
other hand, it was very much in Iceland’s interests to preserve its freedom
to extend its fishery zone, and thus to be able to take advantage of the
time which could be foreseen when the trend in favour of the extension of
the fisheries jurisdiction of coastal States would have acquired sufficient
momentum in general opinion—and it preferred arbitration to the
jurisdiction of the Court.

The impossibility of reconciling such inconsistent points of view result-
ed in the adoption of the neutral formula of the compromissory clause to
which the Parties agreed: ‘‘in case of a dispute in relation to such exten-
sion, the matter shall, at the request of either party, be referred to the
International Court of Justice.”

The form of words adopted results from a compromise; neither of the
Parties succeeded in carrying its point, but both the terms and the object
of the clause appear to be clear: the Court has the mission of finding a
solution to the dispute which, it was to be feared, would arise as to the
extension of the fisheries zone.

Nevertheless, the interpretation of the clause may give rise to some
doubts. Does it limit the task of the Court to saying whether the extension
effected by Iceland is or is not in accordance with law? Is the role of the
Court to resolve the dispute by saying how far and subject to what con-
ditions the extension is in accordance with the law? On the second
hypothesis, the Court would have to examine the nature of the extension
which was contemplated by the Exchange of Notes of 1961 in relation to
the Althing Resolution of 1959 and Law of 1958—that is to say to take
account of the special situation of [celand and its priority rights over the
continental shelf.

In a separate opinion, Sir Gerald Fitzmaurice has said that: “The
question of conservation has therefore no relevance to the jurisdictional
issue now before the Court, which involves its competence to adjudicate
upon the dispute occasioned by Iceland’s claim unilaterally to assert
exclusive jurisdiction for fishery purposes up to a distance of 50 nautical
miles from and around her coasts.” (Z.C.J. Reports 1973, pp. 26-27.) This

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 102

observation, in my opinion, must be interpreted in relation to the Judg-
ment on the Court’s jurisdiction, and not in relation to the phase of the
procedure concerning the merits. In that Judgment, the Court said that it
would “‘avoid not only all expressions of opinion on matters of substance,
but also any pronouncement which might prejudge or appear to prejudge
any eventual decision on the merits” (ibid., p. 7, para. 11).

It will be as well to observe, all the same, that in that Judgment, the
Court recalled that in its Order of 17 August 1972 it had recognized the
exceptional dependence of Iceland on its fisheries, and stated that ‘‘from
this point of view account must be taken of the need for the conservation
of fish stocks in the Iceland area” (/.C.J. Reports 1973, p. 20, para. 41,
quoting 1.C.J. Reports 1972, pp. 16 and 17).

“The meaning of the expression extension of fisheries ‘jurisdiction’ in
the compromissory clause must be sought in the context of this Althing
Resolution [that of 1959] and in the complete text of the 1961 Exchange
of Notes” (Z.C.J, Reports 1973, p. 8, para. 14). It does not appear that
the jurisdiction of the Court should be confined to answering yes or no to
the claim made before it that the extension is contrary to existing interna-
tional law. The ‘matter’ having been brought before the Court, the
Court must take cognizance of it as a whole and not in part. Once the
Court had declared in its Judgment that it had jurisdiction, it should not
leave the dispute open. [t should seek a solution to the matter of the
extension, in accordance with such guidelines as may be deduced from
the Exchange of Notes of 1961 and the principles of law. That solution
may well consist of saying how far the extension is in accordance with
law, and how it should be corrected or rectified in order to be just and
equitable.

The skilful way in which the Applicant has drafted its submissions has
faced the Court with another problem of procedural law. Should it
confine itself to replying to the claims expressed in the Application? A
municipal tribunal would be in a difficulty in view of the rule which
forbids it to give judgment u/tra petita. But the function of the Court is
wider, and is not limited on grounds of pure form. The Court is not
bound by the narrow rules of the /itis contestatio, especially when the
Respondent fails to appear.

The jurisdiction of the Court results from the 1961 Exchange of Notes,
and not only from the will of the Applicant. The compromissory clause
enables the matter of the extension to be brought before the Court, so
that it can accomplish its function as principal judicial organ of the
United Nations. The function of the Court is to seek the solution of the
dispute before it (Charter, Arts. 33 and 95), and thus to contribute to the
pacific settlement of disputes between States. When one Party fails to
appear, the other does not have the power of narrowing down the role of
the Court.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 103

VI. EQUITABLE SOLUTION

Is it open to the Court to find for itself an equitable solution? Is it
preferable for it to lay down guidelines so that the Parties can reach an
equitable agreement?

Itis open to the Court, it seems to me, to take the initiative and examine
proprio motu the factual elements in the case. By making orders for the
conduct of the case, it can entrust qualified individuals or commissions
with the task of carrying out enquiries or giving expert opinions, before
or after the oral stage of the proceedings (Statute, Arts. 48 and 50). With
this information to hand, the Court would be able to balance the interests
involved and decide according to principles of equity !. This procedure
was not followed by the Court in 1969, and would not seem to be a wise
course today. Iceland, by failing to appear, persists in refusing to assist
the Court, and the Parties are either engaged in negotiation or have
expressed the intention of negotiating.

The example of the 1969 Judgment should be followed; there
are several reasons for doing so. The Icelandic Law of 1948
makes an express reservation for agreements with other countries
to which Iceland was or might become a party. In the Resolution adopted
by the Althing on 15 February 1972 it was stated that efforts to reach a
solution of the problems connected with the extension should be con-
tinued through discussions with the United Kingdom and Federal
Republic. The agreement of 13 November 1973 between the United
Kingdom and Iceland expresses the hope that the dispute will be termi-
nated by an agreement before the expiration of two years (13 November
1975). The Government of the Federal Republic for its part has stated
that the Court cannot assume the role of a legislator for the better
management of the fishery resources of the oceans, and goes on:

“But the Court may be disposed, and this would certainly be
within its judicial functions in deciding the dispute between the
Parties, to give the Parties some guidance as to the principles which
the Parties should take into account in their negotiations for the
most equitable management of the fishery resources in the waters of
the high seas around Iceland .. .”” (Memorial of the Federal Republic
of Germany, Part IV, para. 149.)

In 1969 the Court stated that ‘‘in the matter of delimitation” there
were certain “basic legal notions”, and continued:

“Those principles being that delimitation must be the object of
agreement between the States concerned, and that such agreement
must be arrived at in accordance with equitable principles. On a
foundation of very general precepts of Justice and good faith, actual

1 The Court thought it appropriate to submit for expert opinion certain figures and
estimates of a technical nature (Corfu Channel, I.C.J. Reports 1949, p. 237), when
Albania did not appear. However, the circumstances in that case were quite different.

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FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 104

rules of law are here involved which govern the delimitation of adja-
cent continental shelves.” (Z.C.J. Reports 1969, pp. 46-47, para. 85.)

For the purposes of the case now before the Court, no mathematical
rule can be found which would enable the zone of exclusive fisheries
jurisdiction to be delimited, but it should be observed that guidelines do
exist for reaching an equitable delimitation. The special interest of Iceland
in the adoption of measures for conservation of fish in the zone of the
continental shelf, and in consideration being given in priority to the
needs of its population and its industry, is recognized. On the other hand,
so far as possible these rights must be reconciled with the historic interests
or rights of the Applicant. The actual catch potential of each Party,
without risk of exhaustion of the stock, must be considered. Provision
should therefore be made for reserved zones, catch quotas, limitation on
number of vessels, types of permitted vessels, size of mesh of nets, times of
fishing, transition period, periodic revision of agreements, etc.

The Court could, following the method of the 1969 Judgment, decide
that the Parties are under an obligation to continue negotiations in such
a way that “in the particular case, and taking all the circumstances into
account, equitable principles are applied” (U.C.J. Reports 1969, p. 47,
para. 85). This obligation to negotiate is ‘‘not only to enter into negotia-
tions, but also to pursue them as far as possible, with a view to concluding
agreements” (P.C.I.J., Series A/B, No. 42, 1931, p. 116—a form of
words adopted in /.C.J. Reports 1969, p. 48, para. 87).

“As the Permanent Court of International Justice said in its
Order of 19 August 1929 in the case of the Free Zones of Upper Savoy
and the District of Gex, the judicial settlement of international
disputes ‘is simply an alternative to the direct and friendly settlement
of such disputes between the Parties’ (P.C.I.J., Series A, No. 22, at
p. 13).” (LC.J. Reports 1969, p. 47, para. 87.)

VII. THE SUBMISSIONS

I would add that the following points could well have been brought
out in the Judgment. The extension decided on by Iceland in 1972, to the
extent that it was intended to implement the 1959 Althing Resolution,
was not in itself invalid as against the United Kingdom. On the other
hand, Iceland’s statement that it regarded the 1961 agreement as no
longer in force was invalid, for it was the validity of that agreement which
entitled Iceland to implement the 1959 Resolution. Once the dispute had
been brought before the Court, it was for the Court to decide on the
validity of the extension; and it was bound to do so taking into account
the 1961 agreement, which bound the Parties, and the law of the sea. It is
for this end that the Court should lay down guidelines to define the con-
ditions on which the extension may be regarded as legally justified.

(Signed) F. DE CASTRO.
105