[p3]
The Court,
composed as above,
delivers the following Judgment:
1. By a letter of 14 April 1972, received in the Registry of the Court the same day, the Chargé d'Affaires of the British Embassy in the Netherlands transmitted to the Registrar an Application instituting proceedings against the Republic of Iceland in respect of a dispute concerning the then proposed extension by the Government of Iceland of its fisheries jurisdiction. In order to found the jurisdiction of the Court, the Application relied on Article 36, paragraph 1, of the Statute of the Court and on an Exchange of Notes between the Government of the United Kingdom and the Government of Iceland dated 11 March 1961.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was at once communicated to the Government of Iceland. In accordance with paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application.[p6]
3. By a letter dated 29 May 1972 from the Minister for Foreign Affairs of Iceland, received in the Registry on 31 May 1972, the Court was informed(inter alia) that the Government of Iceland was not willing to confer jurisdiction on the Court and would not appoint an Agent.
4. On 19 July 1972, the Agent of the United Kingdom filed in the Registry of the Court a request for the indication of interim measures of protection under Article 41 of the Statute and Article 61 of the Rules of Court adopted on 6 May 1946. By an Order dated 17 August 1972, the Court indicated certain interim measures of protection in the case.
By an Order dated 18 August 1972, the Court, considering that it was necessary to resolve first of all the question of its jurisdiction in the case, decided that the first pleadings should be addressed to the question of the jurisdiction of the Court to entertain the dispute, and fixed time-limits for the filing of a Memorial by the Government of the United Kingdom and a Counter-Memorial by the Government of Iceland. The Memorial of the Government of the United Kingdom was filed within the time-limit prescribed, and was communicated to the Government of Iceland. No Counter-Memorial was filed by the Government of Iceland and, the written pro-ceedings being thus closed, the case was ready for hearing on 9 December 1972, the day following the expiration of the time-limit fixed for the Counter-Memorial of the Government of Iceland.
5. The Governments of Ecuador, the Federal Republic of Germany and Senegal requested that the pleadings and annexed documents in this case should be made available to them in accordance with Article 44, paragraph 2, of the Rules of Court. The Parties having indicated that they had no objection, it was decided to accede to these requests. Pursuant to Article 44, paragraph 3, of the Rules of Court, the pleadings and annexed documents were, with the consent of the Parties, made accessible to the public as from the date of the opening of the oral proceedings.
6. On 5 January 1973, after due notice to the Parties, a public hearing was held in the course of which the Court heard the oral argument on the question of the Court's jurisdiction advanced by Sir Peter Rawlinson on behalf of the Government of the United Kingdom. The Government of Iceland was not represented at the hearing.
7. In the course of the written proceedings, the following submissions were presented on behalf of the Government of the United Kingdom:
in the Application:
"The United Kingdom asks the Court to adjudge and declare:
a) That there is no foundation in international law for the claim by Iceland to be entitled to extend its fisheries jurisdiction by establishing a zone of exclusive fisheries jurisdiction extending to 50 nautical miles from the baselines hereinbefore referred to; and that its claim is therefore invalid; and
b) that questions concerning the conservation of fish stocks in the waters around Iceland are not susceptible in international law to regulation by the unilateral extension by Iceland of its exclusive fisheries jurisdiction to 50 nautical miles from the aforesaid baselines but are matters that may be regulated, as between Iceland and the United Kingdom, by arrangements agreed between those two countries, whether or not together with other interested countries and whether in the form of arrangements reached in accordance [p7]with the North-East Atlantic Fisheries Convention of 24 January 1959, or in the form of arrangements for collaboration in accordance with the Resolution on Special Situations relating to Coastal Fisheries of 26 April 1958, or otherwise in the form of arrangements agreed between them that give effect to the continuing rights and interests of both of them in the fisheries of the waters in question."
in the Memorial:
"The Government of the United Kingdom submit to the Court that they are entitled to a declaration and judgment that the Court has full jurisdiction to proceed to entertain the Application by the United Kingdom on the merits of the dispute."
8. At the close of the oral proceedings, the following written submissions were filed in the Registry of the Court on behalf of the Government of the United Kingdom:
"The Government of the United Kingdom contend
a) that the Exchange of Notes of 11 March, 1961, always has been and remains now a valid agreement;
b) that, for the purposes of Article 36 (1) of the Statute of the Court, the Exchange of Notes of 11 March, 1961, constitutes a treaty or convention in force, and a submission by both parties to the jurisdiction of the Court in case of a dispute in relation to a claim by Iceland to extend its fisheries jurisdiction beyond the limits agreed in that Exchange of Notes;
c) that, given the refusal by the United Kingdom to accept the validity of unilateral action by Iceland purporting to extend its fisheries limits (as manifested in the Aides-Memoires of the Government of Iceland of 31 August, 1971, and 24 February, 1972, the Resolution of the Althing of 15 February, 1972, and the Regulations of 14 July, 1972, issued pursuant to that Resolution), a dispute exists between Iceland and the United Kingdom which constitutes a dispute within the terms of the compromissory clause of the Exchange of Notes of 11 March, 1961;
d) that the purported termination by Iceland of the Exchange of Notes of 11 March, 1961, so as to oust the jurisdiction of the Court is without legal effect; and
e) that, by virtue of the Application Instituting Proceedings that was filed with the Court on 14 April, 1972, the Court is now seised of jurisdiction in relation to the said dispute.
Accordingly, the Government of the United Kingdom submit to the Court that they are entitled to a declaration and judgment that the Court has full jurisdiction to proceed to entertain the Application by the United Kingdom on the merits of the dispute."
10. No pleadings were filed by the Government of Iceland, which was also not represented at the oral proceedings, and no submissions were therefore presented on its behalf. The attitude of that Government with regard to the question of the Court's jurisdiction was however defined in the above-mentioned letter of 29 May 1972 from the Minister for Foreign Affairs of Iceland. After calling attention to certain documents that letter stated: [p8]
"Those documents deal with the background and termination of the agreement recorded in the Exchange of Notes of 11 March 1961, and with the changed circumstances resulting from the ever-increasing exploitation of the fishery resources in the seas surrounding Iceland."
The letter concluded by saying:
"After the termination of the Agreement recorded in the Exchange of Notes of 1961, there was on 14 April 1972 no basis under the Statute for the Court to exercise jurisdiction in the case to which the United Kingdom refers.
The Government of Iceland, considering that the vital interests of the people of Iceland are involved, respectfully informs the Court that it is not willing to confer jurisdiction on the Court in any case involving the extent of the fishery limits of Iceland, and specifically in the case sought to be instituted by the Government of the United Kingdom of Great Britain and Northern Ireland on 14 April 1972.
Having regard to the foregoing, an Agent will not be appointed to represent the Government of Iceland."
In a telegram to the Court dated 4 December 1972, the Minister for Foreign Affairs of Iceland stated that the position of the Government of Iceland was unchanged.
*****
11. The present case concerns a dispute between the Government of the United Kingdom and the Government of Iceland occasioned by the claim of the latter to extend its exclusive fisheries jurisdiction to a zone of 50 nautical miles around Iceland. In the present phase it concerns the competence of the Court to hear and pronounce upon this dispute. The issue being thus limited, the Court will avoid not only all expressions of opinion on matters of substance, but also any pronouncement which might prejudge or appear to prejudge any eventual decision on the merits.
12. It is to be regretted that the Government of Iceland has failed to appear in order to plead the objections to the Court's jurisdiction which it is understood to entertain. Nevertheless the Court, in accordance with its Statute and its settled jurisprudence, must examine proprio motu the question of its own jurisdiction to consider the Application of the United Kingdom. Furthermore, in the present case the duty of the Court to make this examination on its own initiative is reinforced by the terms of Article 53 of the Statute of the Court. According to this provision, whenever one of the parties does not appear before the Court, or fails to defend its case, the Court, before finding upon the merits, must satisfy itself that it has jurisdiction. It follows from the failure of Iceland to appear in this phase of the case that it has not observed the terms of Article 62, paragraph 2, of the Rules of Court, which requires inter alia [p9] that a State objecting to the jurisdiction should "set out the facts and the law on which the objection is based", its submissions on the matter, and any evidence which it may wish to adduce. Nevertheless the Court, in examining its own jurisdiction, will consider those objections which might, in its view, be raised against its jurisdiction.
***
13. To found the jurisdiction of the Court in the proceedings, the Applicant relies on Article 36, paragraph 1, of the Court's Statute, which provides that: "The jurisdiction of the Court comprises ... all matters specially provided for ... in treaties and conventions in force"; and on the penultimate paragraph (the "compromissory clause") of the Exchange of Notes between the Government of the United Kingdom and the Government of Iceland of 11 March 1961 (the "1961 Exchange of Notes"), which provides:
"The Icelandic Government will continue to work for the implementation of the Althing Resolution of May 5, 1959, regarding the extension of fisheries jurisdiction around Iceland, but shall give to the United Kingdom Government six months' notice of such extension, and, in case of a dispute in relation to such extension, the matter shall, at the request of either party, be referred to the International Court of Justice."
In its resolution of 5 May 1959 the Althing (the Parliament of Iceland) had declared:
". . . that it considers that Iceland has an indisputable right to fishery limits of 12 miles, that recognition should be obtained of Iceland's right to the entire continental shelf area in conformity with the policy adopted by the Law of 1948, concerning the Scientific Conservation of the Continental Shelf Fisheries and that fishery limits of less than 12 miles from base-lines around the country are out of the question".
14. The meaning of the expression "extension of fisheries jurisdiction" in the compromissory clause must be sought in the context of this Althing resolution and of the complete text of the 1961 Exchange of Notes, in which the two contracting parties, referring to the discussions which had taken place concerning a fisheries dispute between them, stated that they were willing to settle that dispute on the following basis: The United Kingdom, for its part, agreed that it "will no longer object to a twelve-mile fishery zone around Iceland" (paragraph 1 of the Notes), measured from certain designated baselines relating to the delimitation of that zone(paragraph 2). It futher agreed to a three-year transitional period during which vessels registered in the United Kingdom might fish within the outer six miles of the 12-mile zone, subject to certain specified times and exclusions with respect to designated areas (paragraphs 3 and 4). It also[p10]recognized (in the compromissory clause) that the Icelandic Government "will continue to work for the implementation of the Althing Resolution of May 5, 1959" regarding its extension of fisheries jurisdiction. The Icelandic Government, for its part, agreed in that clause to give six months' notice of such extension and also agreed therein that "in case of a dispute in relation to such extension, the matter shall, at the request of either party, be referred to the International Court of Justice".
15. In an aide-memoire of 31 August 1971 the Government of Iceland gave notice to the United Kingdom Government that it "now finds it essential to extend further the zone of exclusive fisheries jurisdiction around its coasts to include the areas of sea covering the continental shelf", adding that: "It is contemplated that the new limits, the precise boundaries of which will be furnished at a later date, will enter into force not later than 1 September, 1972." In answer to this notice, the United Kingdom Government advised the Government of Iceland on 27 September 1971 of its view "that such an extension of the fishery zone around Iceland would have no basis in international law". It also reserved its rights under the 1961 Exchange of Notes, "including the right to refer disputes to the International Court of Justice".
16. There is no doubt in the present case as to the fulfilment by the United Kingdom of its part of the agreement embodied in the 1961Exchange of Notes concerning the recognition of a 12-mile fishery zone around Iceland, and the phasing-out during a period of three years of fishing by British vessels within that zone. There is no doubt either that a dispute has arisen between the parties and that it has persisted despite the negotiations which took place in 1971 and 1972. This dispute clearly relates to the extension by Iceland of its fisheries jurisdiction beyond the 12-mile limit in the waters above its continental shelf, as contemplated in the Althing resolution of 5 May 1959.
17. Equally, there is no question but that Iceland gave the United Kingdom the required notice of extension. In consequence, the United Kingdom having disputed the validity, not of the notice but of the extension, the only question now before the Court is whether the resulting dispute falls within the compromissory clause of the 1961 Exchange of Notes as being one for determination by the Court. Since, on the face of it, the dispute thus brought to the Court upon the Application of the United Kingdom falls exactly within the terms of this clause, the Court would normally apply the principle it reaffirmed in its 1950 Advisory Opinion concerning the Competence of the General Assembly for the Admission of a State to the United Nations, according to which there is no occasion to resort to preparatory work if the text of a convention is [p11]sufficiently clear in itself. However, having regard to the peculiar circumstances of the present proceedings, as set forth in paragraph 12 above, and in order fully to ascertain the scope and purpose of the 1961 Exchange of Notes, the Court will undertake a brief review of the negotiations that led up to that exchange.
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18. The records of these negotiations which were drawn up by and have been brought to the Court's attention by the Applicant, as well as certain documents exchanged between the two Governments, show that, as early as 5 October 1960, it had become apparent that the United Kingdom would accept in principle Iceland's right to exclusive fisheries jurisdiction within the 12-mile limit following the end of a transitional period. However, the Government of the United Kingdom sought an assurance that there would be no further extensions of Icelandic fisheries jurisdiction excluding British vessels, in implementation of the Althing resolution, except in conformity with international law. In the course of the discussions concerning this point both parties accepted the notion that disputes arising from such further extensions should be submitted to third-party decision. The Government of Iceland preferred recourse to arbitration, a position consistent with the proposals it had put forward and the attitude it had adopted at both Conferences on the Law of the Sea in 1958 and 1960. Its representatives are recorded in the documents brought to the Court's attention as having proposed in the bilateral negotiations on 28 October 1960 the following:
"The Icelandic Government reserves its right to extend fisheries jurisdiction in Icelandic waters in conformity with international law. Such extension would, however, be based either on an agreement (bilateral or multilateral) or decisions of the Icelandic Government which would be subject to arbitration at the request of appropriate parties."
For its part, the Government of the United Kingdom preferred that disputes be referred to the International Court of Justice. Equally, the representatives of Iceland, while having indicated their preference for arbitration, expressed in later meetings, and specifically on 4 November 1960, their willingness to accept the International Court of Justice as the appropriate forum. Subsequent exchanges of drafts consistently contained a specific reference to the Court, which was finally included in the 1961 Exchange of Notes. In placing the terms of the proposed Exchange of Notes before the Althing on 28 February 1961, the Government of Iceland presented a memorandum which included the following statement concerning this point:[p12]"The Government declares that it will continue to work for the implementation of the Althing resolution of 5 May, 1959, regarding the extensions of the fisheries jurisdiction around Iceland. Such an extension would, however, be notified to the British Government six months in advance, and if a dispute arises in connection with these measures, this shall be referred to the International Court of Justice, should either one of the parties request it." (Emphasis added.)
19. The representatives of Iceland having accepted the proposal for reference to the International Court of Justice, discussion continued as to the precise formulation of the compromissory clause, including, in particular, the method whereby the agreement to have recourse to the Court would be effected. On 3 December 1960 the Icelandic delegation is recorded as having proposed the following text:
"The Icelandic Government will continue to work for the implementation of the Althing Resolution of May 5, 1959, regarding the extension of fisheries jurisdiction around Iceland. Six months notice will be given of the application of any such extension and in case of dispute the measures will be referred to the International Court of Justice." (Emphasis added.)
The delegation of the United Kingdom proposed to insert in the last phrase of this text the words "at the request of either party" in order to make it clear that the jurisdiction of the Court could be invoked by means of a unilateral application and need not require a joint submission by both parties. This however was not immediately agreed to by the Icelandic delegation. In a draft exchange of Notes put forward by the Government of Iceland on 10 December 1960 it was proposed that the assurance sought by the Government of the United Kingdom should be couched in the following terms:
"Icelandic Government will continue to work for implementation of the Althing Resolution of May 5, 1959, regarding extension of fisheries jurisdiction around Iceland. Six months' notice will be given of application of any such extension and in case of dispute the measures will, at the request of the several parties, be referred to the International Court of Justice." (Emphasis added.)
This proposal was not accepted by the Government of the United Kingdom, which on 16 December 1960 submitted a new text of the assurance insisting on the words "at the request of either party". This text was finally agreed to by Iceland on 13 February 1961 and the words "at the request of either party" thus appear in the compromissory clause of the Exchange of Notes.
20. A further point of difference concerned the form to be given to the[p13]assurance contained in that clause. The proposal for a draft exchange of Notes put forward by the Government of Iceland on 10 December 1960 was unacceptable to the Government of the United Kingdom for a number of reasons set out in a Message by the Secretary of State for Foreign Affairs delivered on 14 December 1960. Included among the objections was the failure to frame the exchange as an agreement binding on the parties. As stated in the Message:
"... the assurance should be set out in an Exchange of Notes expressly stated to constitute an Agreement which would, in Her Majesty's Government's view, be the only way of binding both parties to accept the jurisdiction of the International Court of Justice in the event of any dispute arising over extensions of fishery jurisdiction. We regard this as essential if we are going to achieve stability in our future fishery relations as we earnestly desire."
In a letter addressed by the Secretary of S/tate for Foreign Affairs of the United Kingdom to the Foreign Minister of Iceland on 21 December 1960 it was also considered—
". . . essential that the terms of the Assurance that any dispute on future extensions of fishery jurisdiction beyond 12 miles would be referred to the International Court of Justice, should be embodied in a form which is an Agreement registered with the Secretariat of the United Nations in accordance with the provisions of the Charter. Article 102 of the Charter specifically provides that unless so registered the Agreement cannot be invoked before any organ of the United Nations.”
This proposal was finally accepted by the Icelandic Government, and the last sentence of the Note of 11 March 1961 addressed by the Foreign Minister of Iceland to the British Ambassador reads as follows:
"I have the honour to suggest that this Note and Your Excellency's reply thereto, confirming that its contents are acceptable to the United Kingdom Government, shall be registered with the Secretary-General of the United Nations in accordance with Article 102 of the United Nations Charter . . ."
This was agreed to in the Note sent on the same date by the British Ambassador in Reykjavik to the Foreign Minister of Iceland. In its memorandum to the Althing of 28 February 1961 the Government of Iceland stated:
"Finally it is provided in the Note that it, together with the reply of the British Government, where the British Government confirms its contents, be registered with the Secretary-General of the United [p14] Nations. In Article 102 of the United Nations Charter it is stated that only agreements that are so registered can be handled by the International Court of Justice, should a dispute arise concerning their implementation. This provision is a direct consequence of what has been said about reference of the matter to the International Court of Justice."
The Exchange of Notes was registered by the Government of Iceland with the Secretariat of the United Nations on 8 June 1961.
21. The history of the negotiations not only shows the intentions of the parties but also explains the significance of the six months' notice required to be given by the Government of Iceland to the United Kingdom Government, for on 2 December 1960 the United Kingdom representatives stated that the assurance they were seeking should provide, inter alia, that, "pending the Court's decision, any measure taken to give effect to such a rule will not apply to British vessels". The Foreign Minister of Iceland is recorded as having replied on the same date that the most difficult feature of the problem of the assurance was how to deal with the point that "if there was a dispute, no measure to apply an extension on fishery limits would be taken pending reference to the International Court".
22. The idea of a six months' notice to be given by Iceland was first discussed on 3 December 1960 and was embodied in the formula advanced by the Icelandic delegation on that same date, which is transcribed in paragraph 19 above. This requirement of notice was agreed to by the parties. It may be assumed that they considered that such a period would allow sufficient time to settle the question through negotiations or, if no settlement were reached, to submit the whole issue to the Court, including, in accordance with the statutory powers possessed by the Court, the applicability of the measures of exclusion to British vessels pendente lite. Furthermore, the interpretation advanced in the letter of 29 May1972 from the Minister for Foreign Affairs of Iceland to the Registrar of the Court, intimating that the requirement of notice limited the right of recourse to the Court to the eventuality that the Icelandic Government should "without warning further extend the limits" (emphasis added), does not correspond to the text of the compromissory clause, which clearly relates to the extension of the limits and not to the notice of extension. Such an interpretation is also to be discounted in the light of the history of the negotiations.
23. This history reinforces the view that the Court has jurisdiction in this case, and adds emphasis to the point that the real intention of the parties was to give the United Kingdom Government an effective assurance which constituted a sine qua non and not merely a severable condition of the whole agreement: namely, the right to challenge before the Court the validity of any further extension of Icelandic fisheries jurisdiction in the waters above its continental shelf beyond the 12-mile limit. [p15]In consequence, the exercise of jurisdiction by the Court to entertain the present Application would fall within the terms of the compromissory clause and correspond exactly to the intentions and expectations of both Parties when they discussed and consented to that clause. It thus appears from the text of the compromissory clause, read in the context of the 1961 Exchange of Notes and in the light of the history of the negotiations, that the Court has jurisdiction. It has however been contended that the agreement either was initially void or has since ceased to operate. The Court will now consider these contentions.
***
24. The letter of 29 May 1972 addressed to the Registrar by the Minister for Foreign Affairs of Iceland contains the following statement:
"The 1961 Exchange of Notes took place under extremely difficult circumstances, when the British Royal Navy had been using force to oppose the 12-mile fishery limit established by the Icelandic Government in 1958."
This statement could be interpreted as a veiled charge of duress purportedly rendering the Exchange of Notes void ab initio, and it was dealt with as such by the United Kingdom in its Memorial. There can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void. It is equally clear that a court cannot consider an accusation of this serous nature on the basis of a vague general charge unfortified by evidence in its support. The history of the negotiations which led up to the 1961 Exchange of Notes reveals that these instruments were freely negotiated by the interested parties on the basis of perfect equality and freedom of decision on both sides. No fact has been brought to the attention of the Court from any quarter suggesting the slightest doubt on this matter.
**
25. In his letter of 29 May 1972 to the Registrar of the Court, the Minister for Foreign Affairs of Iceland observed that the 1961 agreement "was not of a permanent nature" and added that:
"In particular, an undertaking for judicial settlement cannot be considered to be of a permanent nature. There is nothing in that situation, or in any general rule of contemporary international law, to justify any other view."
This observation, directed against the Court's jurisdiction, appears to [p16]rest on the following chain of reasoning: (1) inasmuch as the com-promissory clause contains no provision for termination, it could be deemed to be of a permanent nature; but (2) a compromissory clause cannot be of a permanent nature; therefore (3) it must be subject to termination by giving adequate notice. This reasoning appears to underlie the observation of the Government of Iceland in its aide-mé moire of 31 August 1971 to the effect that:
"In the opinion of the Icelandic Government . . . the object and purpose of the provision for recourse to judicial settlement of certain matters envisaged in the passage quoted above [i.e., the compromissory clause] have been fully achieved."
26. It appears to the Court that, although the compromissory clause in the 1961 Exchange of Notes contains no express provision regarding duration, the obligation it embraces involves an inherent time-factor conditioning its potential application. It cannot, therefore, be described accurately as being of a permanent nature or as one binding the parties in perpetuity. This becomes evident from a consideration of the object of the clause when read in the context of the Exchange of Notes.
27. The 1961 Exchange of Notes did not set up a definite time-limit within which the Government of Iceland might make a claim in implementation of the Althing's resolution. It follows that there could be no specification of a time-limit for the corresponding right of the United Kingdom to challenge such an extension and, if no agreement were reached and the dispute persisted, to invoke the Court's jurisdiction. The right of the United Kingdom thus to act would last so long as Iceland might seek to implement the Althing's resolution. This was, of course, within the control of the Government of Iceland which in 1971, ten years after the Exchange of Notes, made a claim to exclusive fishery rights over the entire continental shelf area surrounding its territory and thus automatically brought into play the right of the United Kingdom to have recourse to the Court.
28. That being so, the compromissory clause in the 1961 Exchange of Notes may be described as an agreement to submit to the Court, at the unilateral request of either party, a particular type of dispute which was envisaged and anticipated by the parties. The right to invoke the Court's jurisdiction was thus deferred until the occurrence of well-defined future events and was therefore subject to a suspensive condition. In other words, it was subject to a condition which could, at any time, materialize if Iceland made a claim to extend her fishery limits, and the right of recourse to the Court could be invoked only in that event.
29. The above observations suffice to dispose of a possible objection based on views expressed by certain authorities to the effect that treaties of judicial settlement or declarations of acceptance of the compulsory [p17]jurisdiction of the Court are among those treaty provisions which, by their very nature, may be subject to unilateral denunciation in the absence of express provisions regarding their duration or termination. Since those views cannot apply to a case such as the present one, the Court does not need to examine or pronounce upon the point of principle involved. It is sufficient to remark that such views have reference only to instruments in which the parties had assumed a general obligation to submit to judicial settlement all or certain categories of disputes which might arise between them in the unpredictable future. The 1961 Exchange of Notes does not embody an agreement of this type. It contains a definite compromissory clause establishing the jurisdiction of the Court to deal with a concrete kind of dispute which was foreseen and specifically anticipated by the parties. In consequence, when a dispute arises of precisely the sort contemplated, and is referred to the Court, the contention that the compromissory clause has lapsed, or is terminable, cannot be accepted.
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30. In his statement to the Althing on 9 November 1971, the Prime Minister of Iceland alluded not only to an alleged change of circumstances with respect to fisheries and fishing techniques (which will be considered later in this Judgment), but also to changes regarding "legal opinion on fisheries jurisdiction". However, the relevance to the compromissory clause of this allusion is not apparent, since if there is a dispute as to such changes it would be embraced in the compromissory clause and might be considered as an issue going to the merits. On the other hand, it could be considered as relevant to the compromissory clause on an hypothesis familiar in the law of certain States under the guise of "failure of consideration". As such, it is linked with the assertion that, the object and purpose of the agreement having been fulfilled, it no longer has a binding effect for Iceland.
31. It should be observed at the outset that the compromissory clause has a bilateral character, each of the parties being entitled to invoke the Court's jurisdiction; it is clear that in certain circumstances it could be to Iceland's advantage to apply to the Court. The argument of Iceland appears, however, to be that, because of the general trend of development of international law on the subject of fishery limits during the last ten years, the right of exclusive fisheries jurisdiction to a distance of 12 miles from the baselines of the territorial sea has been increasingly recognized and claimed by States, including the applicant State itself. It would then appear to be contended that the compromissory clause was the price paid by Iceland for the recognition at that time of the 12-mile fishery limit by the other party. It is consequently asserted that if today the 12-mile fishery limit is generally recognized, there would be a failure of consideration relieving Iceland of its commitment because of the changed legal circumstances. It is on this basis that is is possible to interpret [p18]Prime Minister's statement to the Althing on 9 November 1971, to the effect that it was unlikely that the agreement would have been made if the Government of Iceland had known how these matters would evolve.
32. While changes in the law may under certain conditions constitute valid grounds for invoking a change of circumstances affecting the duration of a treaty, the Icelandic contention is not relevant to the present case. The motive which induced Iceland to enter into the 1961 Exchange of Notes may well have been the interest of obtaining an immediate recognition of an exclusive fisheries jurisdiction to a distance of 12 miles in the waters around its territory. It may also be that this interest has in the meantime disappeared, since a 12-mil fishery zone is now asserted by the other contracting party in respect of its own fisheries jurisdiction. But in the present case, the object and purpose of the 1961 Exchange of Notes, and therefore the circumstances which constituted an essential basis of the consent of both parties to be bound by the agreement embodied therein, had a much wider scope. That object and purpose was not merely to decide upon the Icelandic claim to fisheries jurisdiction up to 12 miles, but also to provide a means where by the parties might resolve the question of the validity of any further claims. This follows not only from the text of the agreement but also from the history of the negotiations, that is to say, from the whole set of circumstances which must be taken into account in determining what induced both parties to agree to the 1961 Exchange of Notes.
33. According to the memorandum submitted by the Government of Iceland to the Althing on 28 February 1961, together with the proposed Exchange of Notes, the agreement comprised:
". . . four main points:
1) Britain recognises immediately the 12 mile fishery zone of Iceland.
Britain recognises important changes in the baselines in four places around the country, which extends the fishery zone by5065 square kilometres.
British ships will be permitted to fish within specified areas between the 6 and 12 mile limits for a limited period each year during the next three years.
The Government of Iceland declares that it will continue to work for the implementation of the parliamentary resolution of 5 May, 1959, regarding the extension of the fisheries jurisdiction around Iceland and that any dispute on actions that maybe taken, will be referred to the International Court of Justice."
Undoubtedly certain of these provisions, such as those concerning fishing in designated areas during a period of three years, had a transitory [p19] character and may be considered to have become executed. But in contrast there are other provisions which do not possess that same tran-sitory character. The compromissory clause is an instance.
34. It is possible that today Iceland may find that some of the motives which induced it to enter into the 1961 Exchange of Notes have become less compelling or have disappeared altogether. But this is not a ground justifying the repudiation of those parts of the agreement the object and purpose of which have remained unchanged. Iceland has derived benefits from the executed provisions of the agreement, such as the recognition by the United Kingdom since 1961 of a 12-mile exclusive fisheries jurisdiction, the acceptance by the United Kingdom of the baselines established by Iceland and the relinquishment in a period of three years of the pre-existing traditional fishing by vessels registered in the United Kingdom. Clearly it then becomes incumbent on Iceland to comply with its side of the bargain, which is to accept the testing before the Court of the validity of its further claims to extended jurisdiction. Moreover, in the case of a treaty which is in part executed and in part executory, in which one of the parties has already benefited from the executed provisions of the treaty, it would be particularly inadmissible to allow that party to put an end to obligations which were accepted under the treaty by way of quid pro quo for the provisions which the other party has already executed.
**
35. In his letter of 29 May 1972 to the Registrar, the Minister for Foreign Affairs of Iceland refers to "the changed circumstances resulting from the ever-increasing exploitation of the fishery resources in the seas surrounding Iceland". Judicial notice should also be taken of other statements made on the subject in documents which Iceland has brought to the Court's attention. Thus, the resolution adopted by the Althing on 15 February 1972 contains the statement that "owing to changed circumstances the Notes concerning fishery limits exchanged in 1961 are no longer applicable".
36. In these statements the Government of Iceland is basing itself on the principle of termination of a treaty by reason of change of circumstances. International law admits that a fundamental change in the circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected aground for invoking the termination or suspension of the treaty. This principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances.
37. One of the basic requirements embodied in that Article is that the [p20]change of circumstances must have been a fundamental one. In this respect the Government of Iceland has, with regard to developments in fishing techniques, referred in an official publication on Fisheries Jurisdiction in Iceland, enclosed with the Foreign Minister's letter of 29 May 1972 to the Registrar, to the increased exploitation of the fishery resources in the seas surrounding Iceland and to the danger of still further exploitation because of an increase in the catching capacity of fishing fleets. The Icelandic statements recall the exceptional dependence of that country on its fishing for its existence and economic development. In his letter of 29 May 1972 the Minister stated:
"The Government of Iceland, considering that the vital interests of the people of Iceland are involved, respectfully informs the Court that it is not willing to confer jurisdiction on the Court in any case involving the extent of the fishery limits of Iceland . . ."
In this same connection, the resolution adopted by the Althing on 15 February 1972 had contained a paragraph in these terms:
"That the Governments of the United Kingdom and the Federal Republic of Germany be again informed that because of the vital interests of the nation and owing to changed circumstances the Notes concerning fishery limits exchanged in 1961 are no longer applicable and that their provisions do not constitute an obligation for Iceland."
38. The invocation by Iceland of its "vital interests", which were not made the subject of an express reservation to the acceptance of the jurisdictional obligation under the 1961 Exchange of Notes, must be interpreted, in the context of the assertion of changed circumstances, as an indication by Iceland of the reason why it regards as fundamental the changes which in its view have taken place in previously existing fishing techniques. This interpretation would correspond to the traditional view that the changes of circumstances which must be regarded as fundamental or vital are those which imperil the existence or vital development of one of the parties.
39. The Applicant, for its part, contends that the alterations and progress in fishing techniques have not produced in the waters around Iceland the consequences apprehended by Iceland and therefore that the changes are not of a fundamental or vital character. In its Memorial, it points out that, as regards the capacity of fishing fleets, increases in the efficiency of individual trawlers have been counter-balanced by the reduction in total numbers of vessels in national fleets fishing in the waters around Iceland, and that the statistics show that the total annual catch of demersal species has varied to no great extent since 1960.
40. The Court, at the present stage of the proceedings, does not need 20 [p21] to pronounce on this question of fact, as to which there appears to be a serious divergence of views between the two Governments. If, as contended by Iceland, there have been any fundamental changes in fishing techniques in the waters around Iceland, those changes might be relevant for the decision on the merits of the dispute, and the Court might need to examine the contention at that stage, together with any other arguments that Iceland might advance in support of the validity of the extension of its fisheries jurisdiction beyond what was agreed to in the 1961 Exchange of Notes. But the alleged changes could not affect in the least the obligation to submit to the Court's jurisdiction, which is the only issue at the present stage of the proceedings. It follows that the apprehended dangers for the vital interests of Iceland, resulting from changes in fishing tech-niques, cannot constitute a fundamental change with respect to the lapse or subsistence of the compromissory clause establishing the Court's jurisdiction.
41. It should be observed in this connection that the exceptional dependence of Iceland on its fisheries for its subsistence and economic development is expressly recognized in the 1961 Exchange of Notes, and the Court, in its Order of 17 August 1972, stated that "it is also necessary to bear in mind the exceptional dependence of the Icelandic nation upon coastal fisheries for its livelihood and economic development as expressly recognized by the United Kingdom in its Note addressed to the Foreign Minister of Iceland dated 11 March 1961". The Court further stated that "from this point of view account must be taken of the need for the conservation of fish stocks in the Iceland area" (I.C.J. Reports 1972, pp. 16 and 17). This point is not disputed.
42. Account must also be taken of the fact that the Applicant has contended before the Court that to the extent that Iceland may, as a coastal State specially dependent on coastal fisheries for its livelihood or economic development, assert a need to procure the establishment of a special fisheries conservation regime (including such a regime under which it enjoys preferential rights) in the waters adjacent to its coast but beyond the exclusive fisheries zone provided for by the 1961 Exchange of Notes, it can legitimately pursue that objective by collaboration and agreement with the other countries concerned, but not by the unilateral arrogation of exclusive rights within those waters. The exceptional dependence of Iceland on its fisheries and the principle of conservation of fish stocks having been recognized, the question remains as to whether Iceland is or is not competent unilaterally to assert an exclusive fisheries jurisdiction extending beyond the 12-mile limit. The issue before the Court in the present phase of the proceedings concerns solely its jurisdiction to determine the latter point. [p22]
**
43. Moreover, in order that a change of circumstances may give rise to a ground for invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken. In respect of the obligation with which the Court is here concerned, this condition is wholly unsatisfied; the change of circumstances alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation which is imposed in the 1961 Exchange of Notes. The compromissory clause enabled either of the parties to submit to the Court any dispute between them relating to an extension of Icelandic fisheries jurisdiction in the waters above its continental shelf beyond the 12-mile limit. The present dispute is exactly of the character anticipated in the compromissory clause of the Exchange of Notes. Not only has the jurisdictional obligation not been radically transformed in its extent; it has remained precisely what it was in 1961.
**
44. In the United Kingdom Memorial it is asserted that there is a flaw in the Icelandic contention of change of circumstances: that the doctrine never operates so as to extinguish a treaty automatically or to allow an unchallengeable unilateral denunciation by one party; it only operates to confer a right to call for termination and, if that call is disputed, to submit the dispute to some organ or body with power to determine whether the conditions for the operation of the doctrine are present. In this connection the Applicant alludes to Articles 65 and 66 of the Vienna Convention on the Law of Treaties. Those Articles provide that where the parties to a treaty have failed within 12 months to achieve a settlement of a dispute by the means indicated in Article 33 of the United Nations Charter (which means include reference to judicial settlement) any one of the parties may submit the dispute to the procedure for conciliation provided in the Annex to the Convention.
45. In the present case, the procedural complement to the doctrine of changed circumstances is already provided for in the 1961 Exchange of Notes, which specifically calls upon the parties to have recourse to the Court in the event of a dispute relating to Iceland's extension of fisheries jurisdiction. Furthermore, any question as to the jurisdiction of the Court, deriving from an alleged lapse through changed circumstances, is resolvable through the accepted judicial principle enshrined in Article36, paragraph 6, of the Court's Statute, which provides that "in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court". In this case such a dispute obviously exists, as can be seen from Iceland's communications to the Court, and [p23] to the other Party, even if Iceland has chosen not to appoint an Agent, file a Counter-Memorial or submit preliminary objections to the Court's jurisdiction; and Article 53 of the Statute both entitles the Court and, in the present proceedings, requires it to pronounce upon the question of its jurisdiction. This it has now done with binding force.
*****
46. For these reasons,
THE COURT,
by fourteen votes to one,
finds that it has jurisdiction to entertain the Application filed by the Government of the United Kingdom of Great Britain and Northern Ireland on 14 April 1972 and to deal with the merits of the dispute.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this second day of February, one thousand nine hundred and seventy-three, in three copies, of which one will be placed in the archives of the Court and the others transmitted to the Government of the United Kingdom of Great Britain and Northern Ireland and to the Government of the Republic of Iceland, respectively.
(Signed) Zafrulla Khan,
President.
(Signed) S. Aquarone,
Registrar.
of determining the scope of the Court's jurisdiction, would not only beg the question but would put the proverbial cart before the horse with a vengeance and is to be strongly deprecated.
Judge Sir Gerald Fitzmaurice appends a separate opinion to the Judgment of the Court.
Judge Padilla Nervo appends a dissenting opinion to the Judgment of the Court.
(Initialled) Z.K.
(Initialled) S.A.
President Sir Muhammad ZAFRULLA KHAN makes the following declaration :
I am in entire agreement with the Judgment of the Court. I consider it needful, however, to append the following brief declaration.
The sole question before the Court in this phase of these proceedings is whether, in view of the compromissory clause in the Exchange of Notes of 11 March 1961 between the Government of the United Kingdom and the Government of Iceland, read with Article 36 (1) of its Statute, the
[p24]Court is competent to pronounce upon the validity of the unilateral extension by Iceland of its exclusive fisheries jurisdiction from 12 to 50 nautical miles from the baselines agreed to by the parties in 1961. All considerations tending to support or to discount the validity of Iceland's action are, at this stage, utterly irrelevant. To call any such consideration into aid for the purpose of determining the scope of the Court's jurisdiction, would not only beg the question but would put the proverbial cart before the horse with a vengeance and is to be strongly deprecated.
Judge Sir Gerald FITZMAURICE appends a separate opinion to the Judgment of the Court.
Judge PADILLA NERVO appends a dissenting opinion to the Judgment of the Court.
(Initialled) Z.K.
(Initialled) S.A.[p25]
SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE
Although I entirely agree with the Judgment of the Court and the reasoning and considerations on which it is based, there are in my opinion certain factors which should additionally be brought out, or further stressed.
*****
1. In order to appreciate the true significance of the agreement embodied in the Exchanges place in March and July 1961between, on the one hand, the Government of Iceland, and, Governments of the United Kingdom and the Federal Republic of Germany, respectively, it is necessary to take into account the state of the law regarding exclusive fisheries jurisdiction, as it stood at that time, and after the breakdown of the second Geneva Law of the Sea Conference in the previous year (1960); and also as it was reflected in the Conventions that resulted from the work of the first Geneva Law of the Sea Conference in 1958. This is squarely relevant to the jurisdictional issue now before the Court because, as will be seen, it directly affects the situation that existed when the Parties entered into the 1961 Exchanges of Notes, and their motives in doing so. The following review will make this clear.
2. Although certain countries had (almost invariably for fishery reasons, whatever the ostensible grounds) claimed waters extending to more than 12 miles from the baselines of the coast—in some instances very much more than that—none of which claims had, however, received any general recognition,—there was no denial of the clear-cut distinction of principle and status between the territorial sea as part, or as an extension of, the land domain, and the high seas as res communis open to all—the limit of the one, marking and constituting the start of the other. Nor could—nor can—this distinction be denied without destroying the whole concept of the high seas, upon which a major part of maritime international law, as it has been evolved over several centuries, is founded.
3. Accordingly, while there might be and was controversy as to the permissible extent, and as to the location of the outer limit of the territorial sea (or maritime belt as it was sometimes called) there was no doubt that within it the coastal State possessed imperium (jurisdictio) if not dominium (proprietas) or its equivalent (the 1958 Geneva Territorial Sea Convention, Article 1, calls it "sovereignty"); and that it possessed in consequence exclusive rights of various kinds there,—amongst others exclusive [p26]fishery rights. But there was equally no doubt that in waters outside the territorial belt- -these being by definition high seas (see para. 5 below)- -the coastal Slate had neither imperium nor (and still less) dominium, nor proprietorial or exclusive rights of any kind, fisheries in no way excepted.
4. In a zone known as the "contiguous zone", defined by Article 24 of the 1958 Territorial Sea Convention as being what the term implies a "zone of the high seas contiguous to its territorial sea" -and limited in extent (by the same provision) to 12 miles from the coastline [FN1], the coastal State was allowed to "exercise the control necessary" for certain specified purposes[FN2] which did not include any right of jurisdiction over foreign vessels in order to prevent them from fishing there. In other parts of the high seas beyond the contiguous zone, the coastal Stale had no rights of jurisdiction or control at all, except in respect of its own vessels generally; and, in respect of foreign vessels, only as recognized in the 1958 Geneva High Seas Convention, namely for the suppression of piracy and the slave trade, flag verification in certain cases, and as part of the process known as "hot pursuit" started from within the territorial sea or contiguous zone in respect of something that would have justified arrest or stoppage if it could have been effected there.
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[FN1] This of course implied a territorial sea of less than 12 miles in extent, or there would be nothing for the contiguous zone to be contiguous to. The further implication was that a State claiming a 12-mile belt of territorial sea had no need of a contiguous zone as well. But a country claiming only 3 or 6 miles of territorial sea could still have a contiguous zone of 9 or 6 miles, as the case might be.
[FN2] These were for the prevention and punishment of "infringements of its [the coastal State's] customs, fiscal, immigration or sanitary regulations within its territory or territorial sea".
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5. From all this it followed that fishing in any areas that were high seas - i.e. that were not internal or territorial waters - could only be shared and not exclusive, since measures for preventing foreign fishing in such areas would be incompatible with their status as res communis, and the enforcement of such measures would not be for any of the purposes for which countries could, as described above, validly exercise jurisdiction on the high seas over vessels other than their own. This position was reflected in the provisions of the 1958 Geneva Conventions already referred to or quoted, but even more fully in Articles 1 and 2 of the High Seas Convention [FN3] which, according to its Preamble, was adopted as being "generally declaratory of established principles of international law". Article 1 of this Convention, and the relevant part of Article 2, in [p27] which the passages of especial significance in the present context have been italicized, were (and are) as follows:
Article I
The term "high seas" means all parts of the sea that are not included in the territorial sea or internal waters.
Article 2
The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty [FN4]. Freedom of the high seas . . . comprises, inter alia, both for coastal and non-coastal States:
Freedom of navigation;
1) Freedom of fishing;
Freedom to lay submarine cables and pipe-lines;
Freedom to fly over the high seas.
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[FN3] Although the 1958 Geneva Conventions were not technically in force in l96l(they have all come into force since)- they represented a high degree of consensus among the 85 countries which attended the Conference.
[FN4] Since, in the absence of treaty or other sufficient agreement, sovereignty or its equivalent is necessary for the valid exercise of exclusive property rights in any area, in the sense of prohibiting and forcibly preventing fishing by others, this expression was really sufficient in itself to rule out exclusive fishery rights in any areas that were high seas.
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*
6. The question of fishery conservation was separately dealt with by the 1958 Geneva Conservation Convention, and by the subsequent North-East Atlantic Fisheries Convention concluded in London on 24 January 1959, of which Iceland, the Federal Republic and the United Kingdom were all signatories, and the object of which, according to its preamble, was "to ensure the conservation of the fish stocks and the rational exploitation of the fisheries of the North-East Atlantic Ocean and adjacent waters, which are of common concern to them" (my italics) [FN5]. But agreed measures of conservation on the high seas for the preservation of common fisheries in which all have a right to participate, is of course a completely different matter from a unilateral claim by a coastal State to prevent fishing by foreign vessels entirely, or to allow it only at the will and under the control of that State. The question of conservation has therefore no relevance to the jurisdictional issue now before the Court, which involves its competence to adjudicate upon a dispute occasioned by Iceland's [p28] claim unilaterally to assert exclusive jurisdiction for fishery purposes up to a distance of 50 nautical miles from and around her coasts.
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[FN5] The phrase here italicized was intended to relate to all the waters covered by the Convention, including—and above all—those of the north-East Atlantic.
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*
7. Nor did continental shelf doctrine afford any basis for the assertion of exclusive fishery claims by a coastal State merely on the ground that its continental shelf underlay the waters concerned. This was made quite clear by the 1958 Geneva Continental Shelf Convention and. as it happens, was reflected later in the Judgment of the Court in the North Sea Continental Shelf case (I.C.J. Reports 1969, p. 3). Article 2 of the Continental Shelf Convention—which provision was generally regarded as reflecting already received law—stated that the coastal Stale exercised "sovereign rights" over the shelf "for the purpose of exploring it and exploiting its natural resources" [FN6]. But the term "natural resources" was defined in such a way, in respect of "living organisms", as to cover only "sedentary species",—i.e., "organisms which . . . either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil"—(Art. 2, para. 4). The very purpose of this definition was to exclude what were colloquially known as "swimming fish", or fish which, whether they at all times swam or not, were capable of so doing—(and this of course included what are known as "demersal" species—fish which spend a part of their time on or near the ocean bed but are swimming fish). Clearly therefore the Convention reserved nothing to the coastal State by way of exclusive fishery rights, except in what might be called, in general terms, sedentary fisheries. It afforded no ground for the assertion of exclusive fishery rights in waters that were outside the territorial sea, and therefore high seas. This situation was reflected in the Judgment of the Court in the Continental Shelf case where, in distinguishing between territorial sea and continental shelf rights, it was pointed out (I.C.J. Reports 1969, p. 37, end of para. 59) that
"the sovereign jurisdiction which the coastal Stale is entitled lo exercise . . . not only over the seabed underneath the territorial waters, but over the waters themselves, . . . docs not exist in respect of continental shelf areas where there is no jurisdiction over the super-[29*] jacent waters, and over the seabed only for purposes of exploration
and exploitation" [FN7]—(my italics).
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[FN6] The object of this wording was, if not to exclude the notion entirely, at least to reserve the question of full unlimited sovereignty, stricto sensu, over the continental shelf.
[FN7] For the implications of these last dozen or so words, see preceding footnote.
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Moreover it is safe to say that the whole notion of continental shelf rights would never have received the almost universal acceptance it did, not only at, but well before the Geneva Conference, unless it had been firmly understood from the start that those rights did not extend to the waters above the shelf, or to their non-sedentary contents.
**
8.From the foregoing observations it is clear that at the material date, namely that of the Geneva Law of the Sea Conferences and for some years after, there was no generally recognized way of validly asserting exclusive fishery jurisdiction, as such, per solum,—i.e., except as part of a valid claim to territorial waters, which would automatically imply and carry with it the related fishery rights. From this it followed that there was no way of extending any area of exclusive fishery rights except by a valid extension of territorial waters, unless it could be done by way of agreement with the other countries fishing in the areas concerned—(a proviso which I have italicized because of its particular relevance to the jurisdictional issue now before the Court). It was indeed this situation which then accounted for and provided much of the motivation for the movement to extend the limits of the territorial sea, on the part of countries which, mostly, had little interest in any of the other aspects of an extended territorial sea, and sometimes a definite disinclination for them [FN8]. Furthermore, it was evident that there must come a point at which claims to territorial waters would verge on the absurd, where they went beyond anything in the nature of waters that could properly be regarded as "territorial", in the sense of retaining some sort of physical relationship with the land to which they were supposed to be attached or appurtenant[FN9].
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[FN8] The territorial sea involves responsibilities as well as rights, which many countries were unable to discharge satisfactorily outside a relatively narrow belt, such as for example policing and maintaining order; buoying and marking channels and reefs. Sand banks and other obstacles; keeping navigable channels clear, and giving notice of dangers to navigation; providing rescue services, lighthouses, lightships, bell-buoys, etc.
[FN9] As its name implies, the territorial sea is that part of the sea which is attached to or washes the land territory and constitutes a natural extension seaward of the land domain. The dictum of the International Court of Justice in its North Sea Continental Shelf Judgment about the true nature of the concept of "adjacency" is as valid for undue extensions of the territorial sea as it is fur distant points on the continental shelf bed, -see I.C.J. Reports 1969, at p. 30, para. 41.
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[p30]9. It was in these circumstances, and for these reasons, that the notion of detaching exclusive fishery rights from their association solely with, and their dependence on, territorial sea rights, first came to be propounded. But such a change in the legal position would require general agreement or understanding; or else, in particular areas, the consent of the countries whose fishing would be affected. It could not he done unilaterally. This notion accordingly became the basis of the principal proposal debated at the second (I960) Geneva Conference, -namely for up to 6 miles of territorial waters, and another 6 miles of exclusive fishery rights, making, in effect, a total fishery zone of 12 miles, or 9 miles for countries which elected only to claim 3 miles of territorial sea[FN10]. However, the proposal failed to gain acceptance, though only narrowly, and the Conference broke up without having reached any agreement either on territorial sea or fishery limits: so that it was clear that, at the point then reached, no generally agreed change in the law had taken place.
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[FN10] This proposal would have caused the permissible fishery limit to coincide with the permissible limit of the contiguous zone (see para. 4 and footnote 1 above), and would in effect have given the coastal State exclusive fishery rights in that zone.
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**
10. Such was the situation when, later in the same year (1960), and in the following year, the negotiations that led to the I96l Exchange of Notes were begun and in progress:-and it becomes instantly apparent that Iceland had a strong interest in securing the immediate recognition of an exclusive 12-miles fishery zone, on the part of two of the principal countries fishing in North Atlantic waters, whose views on the subject of the extent of permissible limits were distinctly conservative, a recognition conditioned only by a transitional period during which these coun-tries' vessels would retain the right to fish in certain areas within the 12-milc zone for a restricted period. In addition, Iceland obtained immediate recognition of a comprehensive series of baselines around her shores from which the 12-mile fishery limit would be drawn potentially a highly controversial matter [FN11]. The quid pro quo was Iceland's acceptance of recourse to the Court if at any time she claimed further to extend her fishery limits:—and it is abundantly clear that the whole reason why the[p31] United Kingdom and the Federal Republic, and their respective fishing industries, were willing to make these concessions—which, at that time, need not have been made, and were injurious to them economically and in other ways—was precisely the fear of such possible further claims. Believing as they undoubtedly did that the state of the law as it then stood did not justify even a 12-mile fishery limit, except by agreement, the other two Parties were nevertheless willing to concede it, in return for (as they thought) a guarantee that further extensions could not be made unless the International Court found that they were legally warranted.
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[FN11]The effect of baselines on the extent of the zone drawn from them is often overlooked by non-technical opinion. On an indented coast there are always several ways of establishing a baseline system, conservative or the reverse. The result, if the latter method is adopted, is considerably to enlarge the area of the zone concerned, by thrusting its outer limit seawards.
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11. Such being the position, it is manifestly completely irrelevant to the question of the Court's competence to determine the validity of Iceland's claim to extend her limits beyond 12 miles, that if she had waited several more years she might have been able to justify the 12-mile fishery zone irrespective of agreement to that effect;—and on this point I have nothing to add to what is said in paragraphs 30-34 of the Judgment of the Court. It is obviously galling to any man (but also a common experience) if he finds that owing to a subsequent decline in prices he has paid more for something than he need have done. But this is not in itself a ground on which he can ask for his money back.
***
12. Turning now to some of the particular points that have arisen in connection with the jurisdictional clause in the Exchanges of Notes, on the basis of which the dispute has been referred to the Court, it will be convenient, before going further, to set the clause out, as it figured in the Exchange with the United Kingdom (the corresponding clause in the Federal Republic's Exchange being exactly the same, apart from a few small verbal differences not affecting the substance). It reads as follows:
"The Icelandic Government will continue to work for the implementation of the Althing Resolution of May 5, 1959, regarding the extension of fisheries jurisdiction around Iceland, but shall give to the United Kingdom Government six months' notice of such extension and, in case of a dispute in relation to such extension, the matter shall, at the request of either party, be referred to the International Court of Justice."
In view of the clear and compelling terms of this provision, and of the fact that what is therein expressly specified as constituting the casus foederis, namely a further extension of Icelandic waters, has now occurred, it is difficult to make any sense of the contention that the obligation to have recourse to the Court is no longer operative because the 1961[p32] Exchanges of Notes had achieved their purpose, and had therefore as it were lapsed or become obsolescent. This contention seems however to belong basically to the same order of argument as was put forward before the Court in the recent case of the Jurisdiction of the ICAO [FN12]-Council (I.C.J. Reports 1972, p. 46) [FN13], and by both the then Parties, though with different objects,—on the one side to contest the jurisdiction of the ICAO Council to deal with a certain matter and, on the other side, to contest the competence of the Court to determine the question of the Council's jurisdiction in that matter. Reduced to its simplest terms, the process is to argue that a jurisdiclional clause, even if it is otherwise duly applicable on its own language, can be ipso facto nullified or rendered inapplicable by purporting (unilaterally) to terminate or suspend the in-strument containing it, or (as in the present case) to declare it to have become inoperative or to be spent, and the jurisdictional clause with it
.
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[FN12] ICAO— the International Civil Aviation Organization.
[FN13] The immediately relevant passages are in paragraphs 16 (b) and 32 of the Judgment, I.C.J. Reports 1972, pp. 53-54 and 64-65.
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13. It is always legitimate to seek to maintain (whether correctly or not) that a jurisdictional clause is, according to its own terms, inapplicable to the dispute, or has lapsed[FN14];—and in that event it is for the tribunal concerned to decide the matter, in the exercise of the admitted right or function of the compétence de la compétence -(in the case of the Court, in the application of Art. 36. para. 6, of its Statute). But this must equally be so where the alleged cause of inapplicability or inoperativeness of the jurisdictional clause lies not in that clause itself but in the language of, or in considerations pertaining to, the instrument containing it, for otherwise there would be no way of testing (in so far as it affected the jurisdiclional clause) the validity of the grounds of inapplicability or inoperativeness put forward; and the compétence de la compétence would be nullified or would be nullifiable a priori,—in short, as the Court said in the Council of ICAO case (I.C.J. Reports 1972, p. 54, in para. 16 (b)) "means of defeating jurisdictional clauses would never be wanting" since (ibid.)
"If a mere allegation, as yet unestablished, that a treaty was no longer operative could be used to defeat its jurisdictional clauses, all such clauses would become potentially a dead letter."
It is therefore hard to understand how anyone who supported the decision in that case, without any qualification on this point, can fail to support the decision of the Court on the analagous jurisdiclional question in the [p33]present case, in which Iceland, alleging a sort of self-evident "fulfilment of the object" of the 1961 Exchanges of Notes, contests (though without actual appearance in the proceedings) not only the competence of "the Court to determine the merits of the dispute relating to the purported extension of Icelandic waters, but (going further in this respect than either of the Parties in the ICAO case did) the Court's competence even to enquire at all into the question of its jurisdiction.
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[FN14] This might have been the case if, for instance (as is often done), the obligation to have recourse to the Court had been undertaken only for a specified period; or if it had appeared to relate not to an actual purported extension of Iceland's fisheries jurisdiction, but only to the validity or effect of the notice given about it.
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14. In fact, the object of the Exchanges of Notes is fulfilled only in respect of Iceland, which has indeed obtained all she sought for under it. Her 12-mile fishery zone was recognized and has been operating for more than a decade; her baselines were recognized; and she is no longer burdened with the transitional right of the other two Parties to fish in some parts of the zone. These, admittedly, are all executed clauses in respect of which no further question arises or can arise; but this has no relevance to the real issue because, for the other two Parties, the object of the Exchanges is far from fulfilled and has only just started to operate, —namely, their right of recourse to the Court, and Iceland's corresponding obligation to accept that recourse if she is purporting to go beyond the agreement, and further to extend her fishery limits—as she has done.
15. Nor can it be contended that this was a mere formality, or stipulated only ex abundanti cautela, and that no such extension was seriously contemplated at the time,—for the reference contained in the jurisdictional clause to the intention of the Government of Iceland to “continue to work for the implementation of the Althing Resolution of May 5, 1959, concerning the extension of fisheries jurisdiction around Iceland", shows not only that just such an extension was contemplated, but that it was intended by the one Party, actively anticipated by the others, and duly provided for by means of the jurisdictional clause, which becomes devoid of all sense if it does not apply to exactly the case that has arisen, since it had and could have had no other object [FN15]. Iceland cannot therefore be heard to argue ex post facto that the clause has in the meantime lapsed; for all that has happened in the interval is not anything to cause it to lapse, but the very thing which has caused it to come into play namely Iceland's purported extension of fisheries jurisdiction.
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[FN15] Except of course to allow Iceland also to make an application to the Court if circumstances arose to make her want to do so—see para. 20 below.
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16. Moreover, it was by Iceland's own act that this occurred. She was not obliged to claim a further extension of waters. Had she not done so, the United Kingdom and the Federal Republic would have had no right to activate the jurisdictional clause in order, for instance, to obtain an anticipatory decision from the Court as to whether Iceland would be legally entitled, if so minded, or at some future date, to extend her [p34] fishery limits. They had to wait until (and if) she did purport to do so. But Iceland, having exercised her right (as foreshadowed by the jurisdictional clause itself) to claim an extension (for of course it can, at this stage at least, rank as no higher than that), cannot now deny her countervailing obligation under that same clause to submit to adjudication, and the right of the other parties to require it. If a repetition may be forgiven therefore, the simple truth is that in 1961 the United Kingdom and the Federal Republic were willing to recognize a 12-mile limit for Iceland, even though they might not consider that international law as it then stood obliged them to do so (nor clearly did Iceland),—but they were willing to do this precisely in order to safeguard themselves against unilateral acts of further extension that did not have, or did not eventually receive, the sanction of the International Court of Justice after reference of the matter to it. This is exactly the situation that has now arisen, and the competence of the Court to deal with it on the merits can admit of no doubt.
*
17. With regard to the question of "changed circumstances" I have nothing to add to what is stated in paragraphs 35-43 of the Court's Judgment, except to emphasize that in my opinion the only change that could possibly be relevant (if at all) would be some change relating directly to the, so to speak, operability of the jurisdictional clause itself [FN16],—not to such things as developments in fishery techniques or in Iceland's situation relative to fisheries. These would indeed be matters that would militate for, not against, adjudication. But as regards the jurisdictional clause itself, the only "change" that has occurred is the purported extension of Icelandic fishery limits. This however is the absolute reverse of the type of change to which the doctrine of "changed circumstances" relates, namely one never contemplated by the Parties: it is in fact the actual change they did contemplate, and specified as the one that would give rise to the obligation to have recourse to adjudication.
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[FN16] For instance if the character of the International Court itself had changed in the meantime so that it was no longer the entity the Parties had had in mind, e.g., if, owing to developments in the United Nations, the Court had been convened into a tribunal of mixed law and conciliation, proceeding on a basis other than a purely juridical one.
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18. Furthermore, if the contention that this obligation has become unduly onerous, in a manner never originally envisaged, is analysed, it will be seen to amount to this: that if the Court, in adjudicating on the merits, should decide against Iceland, the burden of conforming to the[p35] decision would, on account of interim developments, be greater than it formerly would have been. One has only to state the argument in this form, for its lack of all substance to become plainly apparent. It could never be a sufficient ground in law on which the validity of the act complained of should not be tested,—and to test it is all that the adjudication clause aims at.
*
19. With regard to the question of so-called "duress", it is difficult to take a complaint of that kind seriously coming from the Party which was the main beneficiary of the Exchanges of Notes,—and the recipient of all the immediate concrete concessions made in them,—for the transitional fishing rights within the 12-mile zone reserved to the other Parties was really simply a temporary derogation from or mitigation of the full extent of the main concession made, and not a real quid pro quo[FN17]. The real quid pro quo was of course the adjudication clause. It follows that on its true analysis, the "duress" contention resolves itself into an allegation that Iceland's agreement to the adjudication clause in particular was only obtained under pressure. But quite apart from the point made in paragraph 20 below, and the considerations adduced in the Judgment of the Court, paragraphs 18-23 as to the history of the 1960-1961 negotiations, showing that this could not have been the case, it is surely the normal, and to be expected thing, with reference to any agreement, to find that it provides for rights and obligations operating for both sides. Without the adjudication clause there would have been no quid pro quo at all for the United Kingdom and the Federal Republic,—and it is that which would have been abnormal. Hence, on further analysis, it can be seen that the "duress" point really involves the view that what Iceland received, she ought to have received as of right in any event, without having to give anything in return. The weight to be attached to the "ought" in this suggestion may well turn on matters of opinion, but it has no place as a legal factor, and cannot be reconciled with the situation or the circumstances as existing at the time.
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[FN17] The matter can readily be tested,—for although the Parties elected to embody the 12-mile zone concession and the reservation of transitional rights in two separate and formally independent provisions, a more elegant, and strictly more correct method, would have been to provide in one single article for a recognition of Iceland's exclusive rights in the major parts of the zone immediately, but, for the other parts, only after a transitional period. The true character of the transaction, as consisting of a greater and a lesser concession—but both of them concessions—would then have been evident. Only if Iceland could have claimed the 12-mile zone as of right (which was never the basis of the agreement) would it have been possible to regard the transitional rights as a concession moving from Iceland, and not as an integral part of a concession the whole of which was made by the other two Parties.
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20. Nor should it be overlooked that the adjudication clause was itself [p36]reciprocal, not one-sided. Iceland equally could initiate proceedings before the Court,—and this was no mere piece of "common-form" drafting, for if one of the other Parties should react to Iceland's purported extension of her fishery limits, not by recourse to the Court but by measures of naval protection, it would then have been open to Iceland to invoke the adjudication clause, which was in consequence a safeguard for her, as well as for the other two Parties. Where then was the element of "duress"?
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21. In conclusion, and although the matter may be a somewhat sensitive one for me personally to refer to, I should like—since I shall not be participating in the next phase of the case—to comment briefly on the course followed by Iceland with reference to the proceedings before the Court, so far as they have gone up to date. It may have been understandable, though difficult to reconcile with the attitude to the Court which a party to its Statute ought to adopt, that Iceland should declare herself to be so convinced of the Court's lack of any competence to entertain the present dispute, that she would not take any part in the proceedings, and would not enter an appearance or be represented, even in order to argue the question of competence. Had she done this on a once-and-for-all basis, giving her reasons, and thereafter maintained silence, there would have been no more to be said except to call her absence misguided and regrettable. In fact however Iceland has sent the Court a series of letters and telegrams on the subject, often containing material going far beyond the question of competence and entering deeply into the merits, and has lost no opportunity of doing the same thing through statements made or circulated in the United Nations, and by other means[FN18], all of which have of course been brought to the attention of the Court in one way or another as, doubtless, they were intended to be. This process is unfortunately open to the interpretation of being designed, on the one hand, to place Iceland in almost as good a position as if she had actually appeared in the proceedings—(because the Court has in fact carefully considered and dealt with her arguments)—while on the other hand enabling her, in case of need, to maintain that she does not recognize the legitimacy of the proceedings or their outcome—as indeed she has already done with respect to the interim measures indicated by the Court in its Order of17 August 1972.
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[FN18] Such as for instance the promotion in the recent (1972) United Nations Assembly of resolutions bearing on matters that are or may be sub judice before the Court in the present case.
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22. There is yet time for Iceland to show that this interpretation is mistaken; and it is my sincere hope that she will do so.
(Signed) Gerald Fitzmaurice. |
