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DISSENTING OPINION OF JUDGE PADILLA NERVO

I am unable to concur in the Order of the Court and therefore I voted
against its adoption.

In my view, the Court should not have indicated measures of protec-
tion. Notwithstanding contrary opinion, the special features of this case
do not justify such measures against a State which denies the jurisdiction
of the Court, which is not a party to these proceedings and whose rights
as a sovereign State are thereby interfered with.

The claim of the Republic of Iceland to extend its fisheries jurisdiction
to a zone of 50 nautical miles around Iceland, has not been proved to be
contrary to international law.

The question regarding the jurisdiction of the Court has not been fully
explored. It relies mainly as a source of its jurisdiction on the Exchange
of Notes of 11 March 1961, an agreement which the Republic of Iceland
contends has fully achieved its purpose and object, and the provisions of
which it considers no longer to be applicable and, consequently, ter-
minated.

The Minister for Foreign Affairs of Iceland sent to the Registrar on
29 May 1972 a letter regarding the filing on 14 April 1972 of an Appli-
cation by the Government of the United Kingdom, instituting proceedings
against Iceland.

With that letter were sent several documents dealing with the back-
ground and termination of the Agreement of 11 March 1961, and ‘with
the changed circumstances resulting from the ever-increasing exploita-
tion of the fishery resources in the seas surrounding Iceland”.

The letter refers to the dispute with the United Kingdom who opposed
the 12-mile fishery limit established by the Icelandic Government in
1958, and to the 1961 Exchange of Notes.

Iceland states that “the 1961 Exchange of Notes took place under
extremely difficult circumstances, when the British Royal Navy had been
using force to oppose the 12-mile fishery limit”.

In paragraph 4 of the United Kingdom Application instituting pro-
ceedings, it is said:

“The validity of this action was not accepted by the United King-
dom and fishing vessels from the United Kingdom continued to
fish inside the 12-mile limit. There then ensued a number of incidents
involving, on the one hand, Icelandic coastguard vessels and, on the
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FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

other hand, British fishing vessels and fisheries protection vessels
of the Royal Navy.”

It appears from the above-quoted statements, that such circumstances

were not the most appropriate to negotiate and conclude the 1961 Agree-
ment.
The Foreign Minister of Iceland further indicates:

“The Agreement by which that dispute was settled, and conse-
quently the possibility of such recourse to the Court (to which the
Government of Iceland was consistently opposed as far as concerns
disputes over the extent of its exclusive fisheries jurisdiction, as
indeed the United Kingdom recognizes) was not of a permanent
nature. In particular, an undertaking for judicial settlement cannot
be considered to be of a permanent nature. There is nothing in that
situation, or in any general rule of contemporary international law,
to justify any other view ...

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

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

In the Anglo-Iranian Oil Co. case, Judges Winiarski and Badawi Pasha

gave the following reasons for their dissenting opinions which—in my
view—are applicable and valid in the present case:

13

“The question of interim measures of protection is linked, for the
Court, with the question of jurisdiction; the Court has power to
indicate such measures only if it holds, should it be only provi-
sionally, that it is competent to hear the case on its merits.” (C.J.
Reports 1951, p. 96).

“In international law it is the consent of the parties which confers
jurisdiction on the Court; the Court has jurisdiction only in so far
as that jurisdiction has been accepted by the parties. The power given
to the Court by Article 41 is not unconditional; it is given for the
purposes of the proceedings and is limited to those proceedings. If
there is no jurisdiction as to the merits, there can be no jurisdiction
to indicate interim measures of protection. Measures of this kind in
international law are exceptional in character to an even greater
extent than they are in municipal law; they may easily be considered
22 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

a scarcely tolerable interference in the affairs of a sovereign State.”
Ubid., p. 97.)

“We find it difficult to accept the view that if prima facie the total
lack of jurisdiction of the Court is not patent, that is, if there is a
possibility, however remote, that the Court may be competent, then
it may indicate interim measures of protection. This approach, which
also involves an element of judgment, and which does not reserve
to any greater extent the right of the Court to give a final decision as
to its jurisdiction, appears however to be based on a presumption in
favour of the competence of the Court which is not in consonance
with the principles of international law. In order to accord with these
principles, the position should be reversed: if there exist weighty
arguments in favour of the challenged jurisdiction, the Court may
indicate interim measures of protection: if there exist serious doubts
or weighty arguments against this jurisdiction such measures cannot
be indicated.” (/bid., p. 97.)

In my opinion such doubts do exist in the present case.

The Exchange of Notes on which the Application founds the jurisdic-
tion of the Court, dated 11 March 1961, makes reference to the Resolution
of the Parliament of Iceland of 5 May 1959, which declared that a recog-
nition of the rights of Iceland to fisheries limits extending to the whole
continental shelf “should be sought”’.

In the Note of 11 March 1961 it is stated that: ‘The Icelandic Govern-
ment will continue to work for the implementation of the Althing Reso-
lution of 5 May 1959, regarding the extension of fisheries jurisdiction
around Iceland...”

The claim of Iceland that its continental shelf must be considered to be
a part of the country itself, has support in the Convention on this subject,
done at Geneva on 29 April 1958.

This Court, in its Judgment of 20 February 1969, stated:

“,.,. the most fundamental of all the rules of law relating to the conti-
nental shelf, enshrined in Article 2 of the 1958 Geneva Convention,
... hamely that the rights of the coastal State in respect of the area of
continental shelf that constitutes a natural prolongation of its land
territory into and under the sea exist ipso facto and ab initio, by
virtue of its sovereignty over the land, and as an extension of it in an
exercise of sovereign rights for the purpose of exploring the seabed
and exploiting its natural resources. In short, there is here an inherent
right. In order to exercise it, no special legal process has to be gone
through, nor have any special legal acts to be performed. Its existence
can be declared (and many States have done this} but does not need
to be constituted. Furthermore, the right does not depend on its
being exercised. To echo the language of the Geneva Convention, it
is ‘exclusive’ in the sense that if the coastal State does not choose to
explore or exploit the areas of’shelf appertaining to it. that is its
23 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

own affair, but no one else may do so without its express consent.”
(L.C.J. Reports 1969, p. 22, para. 19.)

The Government of Iceland in its information and documents sent
to the Court, has given well-founded reasons and explanations of its
sovereign right to extend its fisheries jurisdiction to the entire continental
shelf area.

The coastal fisheries in Iceland have always been the foundation
of the country’s economy.

The coastal fisheries are the conditio sine qua non for the Icelandic
economy; without them the country would not have been habitable.

Iceland rests on a platform or continental shelf whose outlines
follow those of the country itself. In these shallow underwater terraces,
ideal conditions are found for spawning areas and nursery grounds upon
whose preservation and utilization the livelihood of the nation depends.
It is increasingly being recognized that coastal fisheries are based on the
special conditions prevailing in the coastal areas which provide the neces-
sary environment for the fishstocks. This environment is an integral part
of the natural resources of the coastal State.

The continental shelf is really the platform of the country and must
be considered to be a part of the country itself.

The vital interests of the Icelandic people are therefore at stake.
They must be protected.

The priority position of the coastal State has then always been recog-
nized through the system of fishery limits. In the past these limits have to
a great extent not been established with any regard to the interests of the
coastal State. They owe their origin rather to the preponderant influence
of distant water fishery nations, who wished to fish as close as possible to
the shores of other nations, frequently destroying one area and then pro-
ceeding to another.

In a system of progressive development of international law the ques-
tion of fishery limits has to be reconsidered in terms of the protection and
utilization of coastal resources regardless of other considerations which
apply to the extent of the territorial sea. The international community
has increasingly recognized that the coastal fishery resources are to be
considered as a part of the natural resources of the coastal State. The
special situation of countries who are overwhelmingly dependent on
coastal fisheries, was generally recognized at both Geneva Conferences
in 1958 and 1960. Since then this view has found frequent expression both
in the legislation of various countries and in important political state-
ments. The course of events is decidedly progressing in this direction.

Reiterating the considerations which lead the Government of Iceland
to issue new regulations relating to exclusive fisheries jurisdiction in the

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24 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

continental shelf area, it stated the following:

“In the aide-mémoire of 31 August, 1971, it was intimated that ‘in
order to strengthen the measures of protection essential to safeguard
the vital interests of the Icelandic people in the seas surrounding its
coasts, the Government of Iceland now finds it essential to extend
further the zone of exclusive fisheries jurisdiction around its coasts
to include the areas of sea covering the continental shelf”. It was
further stated that in the opinion of the Icelandic Government, the
object and purpose of the provisions in the 1961 Exchange of Notes
for recourse to judicial settlement in certain eventualities have been
fully achieved. The Government of Iceland, therefore, considers the
provisions of the Notes exchanged no longer to be applicable and
consequently terminated.”’ (Government of Iceland's aide-mémoire
of 24 February 1972, Annex H to United Kingdom Application.)

“... In the period of ten years which has elapsed, the United King-
dom Government enjoyed the benefit of the Icelandic Government's
policy to the effect that further extension of the limits of exclusive
fisheries jurisdiction would be placed in abeyance for a reason-
able and equitable period. Continuation of that policy by the Ice-
landic Government, in the light of intervening scientific and economic
evolution (including the ever greater threat of increased diversion
of highly developed fishing effort to the Icelandic area) has become
excessively onerous and unacceptable, and is harmful to the mainte-
nance of the resources of the sea on which the livelihood of the Ice-
landic people depends.” (Government of Iceland’s aide-mémoire of
31 August 1971, Annex C to United Kingdom Application.)

In the Request by the Government of the United Kingdom for the
indication of interim measures of protection the grounds of the request
are stated at length.

It is stated therein that Iceland’s intention of extending the limits of its
fisheries jurisdiction, if carried into effect for any substantial period.
would result in immediate and irremediable damage to the United King-
dom fishing and associated industries, and that such damage could not be
made good by the payment of monetary compensation.

Another argument is, that it is not possible for the fishing effort to be
diverted from the Iceland area to other fishing grounds, at economic
levels. Distant-water trawlers displaced from Iceland could not profitably
fish on near-water or middle-water grounds. Other factors would also
seriously impair fishing operations and their financial returns.

It is claimed that any additional effort by United Kingdom and other

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25 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

vessels diverted from the Iceland area would (among other things)
depress the profits of the traditional near-water and middle-water sectors
of the United Kingdom fleet and in turn the current returns of the United
Kingdom inshore fleet.

The request for interim measures states:

' “In general, therefore, modern distant-water trawlers such as are
used by the United Kingdom fishing fleet in the Iceland area, equip-
ped with expensive and sophisticated technical gear and having
inflexibly high operating costs, could not, if excluded from the Iceland
area, hope to gain, let alone sustain, fish yields which would keep
them in business.”

Not only Iceland but many coastal States in all regions of the world,
know by experience the harmful effects of the ever greater threat of highly
developed fishing effort near their shores, by foreign fishing fleets equip-
ped—like the modern trawlers of the United Kingdom—with sophisti-
cated technical gear.

The arguments developed in the request for measures of protection
and in the oral hearing of 1 August 1972 appear, in my view, to have as
their real object the protection of the interests, financial or economic,
of private fishing enterprises rather than the “rights” of the United King-
dom.

Furthermore, the existence of those rights cannot be taken for granted.
This matter belongs to the merits of the case, to be decided when the Court
deals with them.

The assertion that the indication of interim measures of protection
in no way prejudges the rights which the Court may subsequently adjudge
to belong either to the Applicant or to the Respondent, is an assertion
contradicted by the obvious implication that questionable rights are
presumed to exist by the mere fact of indicating measures intended to
protect them.

The measures indicated in the Order have the character of a preliminary
decision on the merits. The implementation of those measures will
amount to execution of such a preliminary decision. This fact cannot be
denied simply by asserting that such measures in no way prejudge the
substance of the case.

The claim of immediate and irreparable damage is based on the assump-
tion that the dispute on the merits or even the jurisdictional issue, will
not be settled by the Court for many years.

That is a wrong assumption and therefore the plea of a disruption of the
whole fishing industry will not have any force or weight if the Court, as
should be expected, does consider the matter of jurisdiction before the
end of this year.

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26 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

The Applicant has invoked Article 53 of the Statute and calls upon
the Court to decide in favour of its claim.

According to paragraph 2 of that Article, the Court must, first of all,
satisfy itself that it has jurisdiction.

Relevant to the issue of jurisdiction is the provision in Article 61,
paragraph I, of the Rules: “‘A request for the indication of interim mea-
sures of protection may be filed at any time during the proceedings in
the case in connection with which it is made.”

The objective requirement ratione temporis for the exercise of this juris-
diction is that the request is filed during the proceedings in the case.

“Lf it is clear on the face of the document instituting proceedings
that the jurisdiction of the Court to hear the case on its merits re-
quires some step on the part of the respondent State for its perfection,
then, ... there will be no ‘proceedings’, and consequently no inherent
jurisdiction to indicate provisional measures, until that step has been
taken.” (Rosenne, The Law and Practice of the International Court,
Chap. XII, Incidental Jurisdiction, p. 424.)

The Government of Iceland, on 28 July 1972, acknowledged receipt
of a telegram from the Registrar of the Court concerning the United
Kingdom’s request for interim measures filed 19 July 1972. The message
from the Government of Iceland, states in part:

“.. there is no basis for the request to which your telegram refers.
In any event the Application of 14 April 1972 refers to the legal position
of two States and not to the economic position of certain private
enterprises or other interests in one of those States. Without prejudice
to any of its previous arguments the Government of Iceland objects
specifically to the indication by the Court of provisional measures
under Article 41 of the Statute and Article 61 of the Rules of the
Court in the case to which the United Kingdom refers, where no
basis for jurisdiction is established.” (Emphasis added.)

In the Exchange of Notes of I! March 1961, the agreement already
envisaged the prospect that the Republic of Iceland would extend the
fisheries jurisdiction beyond the 12-mile limit.

If it is contrary to international law to envisage such extension, the
United Kingdom and the Federal Republic of Germany would not have
accepted the inclusion of such statement in the formal exchange of notes.

There is in such exchange of notes an implicit recognition of the right
of Iceland to extend its fisheries jurisdiction.

The United Kingdom, in view of its recognition of the exceptional
dependence of the Icelandic nation upon coastal fisheries for their liveli-

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27 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

hood and economic development, accepted the proposals put forward by
the Government of Iceland, among them, the proposal contained in the
penultimate paragraph, which states that “the Government of Iceland
would continue to work for the implementation of the Althing Resolution
of 5 May 1959 regarding the extension of fisheries jurisdiction around
Iceland”, which declares that a recognition of its rights to the whole
continental shelf should be sought, as provided in the Law concerning the
Scientific Conservation of the Continental Shelf Fisheries of 1948.

The United Kingdom did not object to the existence of such rights, it
accepted the proposal which contained as counterpart or consideration
the obligation of Iceland to give six months’ notice of any such extension.

If a dispute did arise in respect of such extension, it would not affect
the previous implicit recognition of Iceland’s right to extend its fisheries
jurisdiction,

The most essential asset of coastal States is to be found in the living
resources of the sea covering their continental shelf and in the fishing zone
contiguous to their territorial sea.

The progressive development of international law entails the recogni-
tion of the concept of the patrimonial sea, which extends from the territo-
rial waters to a distance fixed by the coastal State concerned, in exercise
of its sovereign rights, for the purpose of protecting the resources on which
its economic development and the livelihood of its people depends.

This concept is not a new one. It has found expression in declarations
by many governments proclaiming as their international maritime policy,
their sovereignty and exclusive fisheries jurisdiction over the sea conti-
guous to their shores.

There are nine States which have adopted a distance of 200 nautical
miles from their shores as their exclusive fisheries jurisdiction. Some of
them have enacted and enforced regulations to that effect since 20 years
ago, when the “Santiago Declaration” was signed by the Governments of
Chile, Ecuador and Peru in August 1952.

‘My last observation is the following. The claim of irremediable
damages to the Applicant has not, in my opinion, been proved. They are
only allegations that the fishing enterprises would suffer financial losses
and also allegations that the eating habits of people in the countries con-
cerned will be disturbed. Such an argument cannot, in my opinion, be
opposed to the sovereign rights of Iceland over its exclusive jurisdiction
and the protection of the living resources of the sea covering its continen-
tal shelf. The Order does not strike, in my view, a fair balance between the
two sides as required by the relevantarticle of the Statute. The restrictions
indicated in the Order are obviously against Iceland, interfering with its
indisputable rights to legislate over its own territory as it considers essen-
tial (cf. para. |, sub-para. (dj, of the operative clause of the Court’s

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28 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

Order). In the measures indicated in that Order the only substantial
restriction to the Applicant consists in limiting the amount of its annual
catch to 170,000 metric tons instead of its claim to 185,000 metric tons,
15,000 metric tons less than the Applicant had asked for in its request for
measures of protection. All the other measures of protection requested
in the Application the Court has accepted. On this aspect also | am not
able to agree with the indication of measures in the Order of the Court.

(Signed) Luis PADILLA NERVO.

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