ORAL ARGUMENTS ON THE MERITS
OF THE DISPUTE SUBMITTED BY THE
GOVERNMENT OF GREAT BRITAIN AND
NORTHERN IRELAND
MINUTES OF THE PUBLIC SlTTlNGS
lteld or the Peace Palace, The Hague,
on25 and 29 Morch and25July 1974,
PresidenrLochspresiding FlFTH PUBLIC SLTTING (25111 74,10 am.)
Presenr: PresidentLACHS; Vice-PresidenrAMMOUN; JudgesFORSTERG , nos,
BENGZON,PETRENO , NYEAMA,DILLARD, LGNACIO-PINTO ,E CASTRO,
Mo~ozov, JIMENEZ DE ARECHAGA, Sir Humphrey WALDOCK,
NACENDRA SINGH,RUDA; RegistrarAQUARONE.
Also presenf:
For the Covernment of the United Kingdom:
Mr. D. H. Anderson, Legal Counsellor, Foreign and Commonwealth
Office,as Agenr;
The Right Honourable Samuel Silkin, QC, MP, Attorney-General,
Mr. G. Slynn, Junior Counsel ta the Treasury,
Mr. J. L. Simpson, CMG, TD, Member of the English Bar,
Professor D. H. N.Johnson, Professor of International and Air Law in the
University of London, Memher of the English Bar,
Mr. P. G. Langdon-Davies, Mcmber of the English Bar,
Dr. D. W. Bowett, President of Queens' College, Cambridge, Member of
the English Bar,as Counsel:
Mr. J. Graham, Fisheries Secretary, Ministry of Agriculture, Fisheries and
Food,
Mr. M. G. de Winton, CBE, MC. Assistant Solicitor. Law Officers'
Department,
Mr. G. W. P.Hart, Second Secretary, Foreign and Commonwealth Office,
as Advisers. OPENING OF THE ORAL PROCEEDINGS
The PRESIDENT: Before 1turn to the subject of today's hearing, 1 wish
to pay tribute to the memory of two former Members of this Court.
Judge John E. Read, who died on 23 December at the age of 85, was a
Member of this Court for 12 years, from 1946 to 1958, but in fact his links
with the International Court of Justice reached back into the preparatory
stage, as he had in 1945represented Canada on the United Nations Cornmittee
of Jurists for the oreoaration of the new Court's Statute. He broueht vast
experience to the court, for he already had behind him a most distinguished
career as a Professor of International Law and Legal Adviser to his Govern-
ment, and he made a significant contribution to legal history by his advocacy
in the famous two cases I'm Alotreand the Troil Smelter.
Judge Read could, in fact, be regarded as a spokesman of a great legal
tradition in which breadth of vision was ore-eminent. That breadth of vision
c<iuldonly be found in a riidn >,ho<\A.<>;en<it.hcartdnd niin'l. AI1tho>e uhti
ciiiiie tiito contact uihini ncre striick by his dircîinc<s. his hii~iidur:ind his
ïiiiiabiliry. Thus hr is rïmenihercd here htithxficti<in. ;is nell 3s \rith respect
for his imprcssi\,c contribution to the \i<irk of the Coiirt, and thrrc nily~1111
hc mxn) cililen.; of The Hague irtio bring hi111to niind whcn thcy iicu thc
Iitilc"C.~niiJian uood"at Slïdur~>J~m\ihich hefoilnclcd in meiiiorsol hii\,in
and as a token of aooreciation for the citv which is also the seat ofthis Court.
1was privileged io see Judge Read in'ottawa only a few weeks before his
death, and 1found him still alert. still evinc.ng the keen interest in the Court
which he retained to the last.
No less great was the devotion to international justice of Judge Kotaro
Tanaka, a Member of the Court from 1961 to 1970. who died on the first
day of this month, at the age of 83.Judge Tanaka was a man of vast erudition,
in terms both of jurisprudence and legal doctrine. In his own country, Japan,
he had pursued an eminent career as a Professor of Law, advocate and
Minister of Education, before being appointed Chief Justice of the Suprenie
Court in 1950.
BYhis colleagues on the Bench of this Court he will be remembered as the
legendary orieital sage, reticent, invariably judicious, with a deep reserve of
wisdom: the embodiment in fact of the judicial spirit. 1have no doubt that his
countenance made no little contribution to the solemnity of our public
sittings. This exterior, however, was belied by the warm sensitivity to al1
manifestations of the human spirit which one discovered in him once one
was admitted to make contact with him in private life. 1 may say from
privileged experience that he was the most devoted of friends.
It is my sad duty to note the great impoverishment of the circle of eminent
international jurists which the passing of John Read and Kotaro Tanaka
represents.
The Court meets to hear the oral arguments on the merits in the Fisheries
Jurisdicrion case brought by the United Kingdom of Great Britain and
Northern lreland aeainst the Reoublic of Iceland. These oroceedines.-,hich
concern the of the extension by the Government of lceland of its
fisheries jurisdiction, were instituted by Application Lfiled on 14 April 1972; OPENING Of THEORALPROCEEOINCO SNTHEMERITS 437
by that Application, the Court was asked to declare that Iceland's claim to
extend its exclusive fisheries iurisdiction to a zone of 50 nautical miles around
Iceland was without foundation in international law and that questions
concerning the conservation of fish stocks in the waters around lceland are
not susce~tible in international law to reaulation bv the unilateral extension
by lceland of its exclusive fisheries jurisdictioto 59 nautical miles from the
baselines but are matters that may be regulated, as between Iceland and
the United Kingdom, hy arrangenients agreed between those two countries.
On 19July 1972, the United Kingdom filed a request 1 for the indicationof
interim measures of protection in this case, and after a public hearing on
1 August 1972, the Court, by an Order 2 dated 17 August 1972, indicated
certain measures of protection. In that Order provision was made for the
matter to be reviewed before 15August 1973; and by a further Order 3dated
12 July 1973 the Court confirmed that the provisional measures indicated
should, subject as therein mentioned, remain operative until the Court has
given final judgment in the case.
Bv an Order 4 dated 18 August 1972. the Court decided that the first
pleidings should be addressed-to the q;estion of the jurisdiction of the
Court to entertain the dispute.
Bv a Judrment 5 of2 February 1973the Court found that it hasjurisdiction
to entertainthe Application filed by theGovernment of the ~nited Kingdom
of Great Britain and Northern lreland on 14April 1972and to deal with the
merits of the dispute.
By an Order 6 of 15 Fehruary 1973, the Court fixed 1 August 1973 as a
time-limit for the Memorial of the United Kingdom on the merits and 15
January 1974for the Counter-Memorial of the Government of Iceland. The
Memorial 7 of the United Kingdom was duly filed within the time-limit fixed
therefor. No Counter-Memorial has been filed by the Government of Iceland;
the written proceedings being thus closed, the case is ready for hearing.
By a letter 8 from the Registrar dated 17 August 1973 the Agent of the
United Kingdom was invited to submit to the Court any observations which
the Government of the United Kinedom mieht wish to oresent on the aues-
tion of ihe porsible joinder of rhis cise with ;he case instj'tuied by the ~ederiil
Repuhlic of Gerniany against the Republic of lceldnd by an Application
filed on 5 June 1972aiid the Arrnt w3s informed rhai ihc Court had fixed 30
September 1973 as the time-likt within which any such observations should
be filed. By a lette10dated 26 September 1973,the Agent of the UnitedKing-
dom submitted the observationi of his ~overnmenton the auestion of the
possible joinder of the two Fisheries Jurisdictioncases. The ~overnment of
lcelandhad been informed 11that the observations of the United Kingdom on
possible joinder had been invited, but did not make any comments to the
1 Sec pp. 71-78supra.
2 I.C.J. Reports1972,p. 12.
3 I.C.J. Reports1973,p. 302.
I.C.J. Reports1972, P.181.
5 I.C.J. Reports1973,p. 3.
6 I.C.J. Reports1973,p. 93.
See pp. 267-432,supra.
II.o.455.
9 ni ;P.3-1I
'0 II, p. 451.
11 II,p.456.Court. On 17 January 1974 1 the Court decided not to join the present pro-
ceedings to those instituted by the Federal Republic of Germany against the
Republic of Iceland.
The Governments of Argentina, Australia, Ecuador, the Federal Republic
of Germany, India, New Zealand and Senegal have asked that the pleadings
and annexed documents in this case should be made available to them in
accordance with Article 44, paragraph 2. of the 1946 Rules of Court. The
Parties havine-ind~ ~ ~d that thev had no obiection. it was decided to accede
to these requests. In accordancéwith its usual practice, the Court decided,
with the consent of the Parties. that the pleadings and annexed documents in
the case should bemade accessible to~the public, pursuant to Article 44,
paragraph 3, of the 1946 Rules of Court, with eFFectfrom the opening of the
present oral proceedings. The Court further decided that a number of com-
munications 2addressed to the Court by the Government of lceland should
also he made accessible to the public at this time. The Parties have indicated
that they have no objection to this course.
1 thus declare the oral proceedings open in this case. The Court has not
been notified of the appointment of an Agent for the Government of lceland
and no representative of the Government of lceland is present in the Court.
1 I.C.J.Reports 1974, p.6.
2 U, 447,450, 462 and 470 STATEMW TYMU. ANDERSON
STATEMENT BY MR. ANDERSON
AGENT F& THE GOVERNMENT OF THE UNITED KINGDOM
Mr. ANDERSON: May it please the Court, when this case was instituted
in April 1972 Mr. Henry Steel, who was then one of the legal advisers to the
Foreign and Commonwealth Office in London, was appointed to he the
United Kingdom's Agent, and so it was he who acted as Agent during the
public sittings on the request for interim measures of protection and on the
question of the Court's jurisdiction. Lastmmer, however, Mr. Steel was
appointed to be the legal adviser to the United Kingdom Mission to the
United Nations in New York and so, as his successor as Agent, it is my
honour to appear before this Court today. The decisions of this Court
prwide constant guidance to the legaladvisers to foreign ministries around
the world, and so it is particularly valuable to have the experience of taking
part in a case before this Court.
Mr. President, with the leavofthe Court 1will ask the Attorney-General,
the Right Honourable Samuel Silkin, to present oral arguments on behalf of
the United Kingdom. ARGUMENT OF THE RIGHT HONOURABLE SAMUEL SILKIN
COUNSEL FOR THE OOVERNMEN TF THE UNITED KINGDOM
The Rt. Hon. Samuel SILKIN: May it pleasethe Court, 1 should like, if1
mav. to heain bv associatinn Her Maiestv's Government and mv learned
colieagues Wtth the tributes ;hich you,-~;. President. have pdid 10 the two
former Members of the Couri.
On this the first occasion on uhich 1 have had the honour of addressina
you, Lshould like to thank you, Mr. President, and Members of the court,
for your courtesy in arranging this oral hearing on a date to suit Her Majesty's
Government. or compelling domestic reasons of which you are aware, and
but for which 1 might not have been here, Her Majesty's Government were
unable to appear at asearly a date as the Court originally desired.
Those same reasons have led to mv aonearance todav. Lt is a short time
after my appointment, but a long tir& ;<ter the time ihen the broad lines
of Her Majesty's Government's casewere established in the Application and
Memorialon the Merits. In this latter connection. 1amkonscious of my deht
to my learned predeceis~r, Sir Peter Rawlinson, for his york on thir case,
and perhaps 1 may be allowed to add 1am also conscious of my debt to my
learned friends and tho~~ who have assistedme in or..arine t-e case.
I feel sure thaiitis a matter of reîl regret for al1 who are taking part in
these proccedings today that there is no-one here, as you have yuurselCsaiJ.
Mr. Presidçnt..IO .ut ~ ~ore the Court the cais for the Govcrnment oflceland.
It is certainly a matter of regret for Her Majesty's Government. lceland and
the United Kingdom have been friends and allies hound by the ties of a
friendship which reachesback into history. In particular there had grown up
over the many years during which they have shared the perilous fishing
grounds of the North Atlantic a senseof comradeship between the fishermen
of the United Kinedom and the fishermen of Iceland-a comradeship
cemented hy hundreds of acts of mutual assistance.
After a difficult period, relations generally between the United Kingdom
and lceland have imoroved followina the conclusion late las1 vear of an
interim agreement. ~owever. as 1 \;il1 explain later, that agréement was
without prejudice to the positions of the two Governments on the substantive
- .,.-...
Ifil u,asregrettable thal Ihc Goi,ernment of licland should have repudiîted
the jurisdiclion of this Court irhen ihese proceedings uere iniiiaicd. ii \ras
surely inconsistent \rith thdt resrieit for iniernatii,ndIaw uhiih thi.; Court
is entiiled Io expect of lceland ihat she should mainiain that attitude even
after the Court, by a majority of 14 to 1, had affirmed its jurisdiction in a
judgment.
Ar a result. while the Couri h39beensent a numhcr of telegrams and letiers,
il has no1 becn and evidently uill nor be presenied ivith any coherent siîle-
ment of the lcclandic case This in its turn hds ~13crdconsiderable diiliculties
in the way of the United Kingdom in presenting the case to the Court and
assisting the Court. For, while such difficulties will always arise when one of
the parties finds itself alone before the Court, they are particularly evident
in a casesuch as this. For here it is lceland which is asserting a new right-a
right to exercisejurisdiction over British vesselsfishing on parts of the high ARGUMENT OF THE RT. HON. SAMUEL VLKIN 441
seas. It is Iceland which is claiming that she has a right which she certainly
did not have before. The claim,is prima facie inconsistent with settled law.
Yet Iceland has not came before the Court to explain the basis on which she
advances this claim.
What then would have heen the appropriate way for such a case to be
argued before the Court, assuming that the proceedings were initiated by
the United Kingdom and not, as they might have been, by lceland herself?
Surely it would have heen for the United Kingdom to allege first, as is
admittedly the case, that lceland had claimed with ekt from 1-September
1972 the legal right to an exclusive fisheries limit of 50 miles, and secondly
that Iceland had attempted ta prevent fishing by the vessels of other nations,
including the United Kingdom. on the high seas within that limit. It would
then have been for iceiand ta set out the katters which her view justified
such a new claim in law. When the United Kingdom had seen what was the
nature of the Icelandic claim. she could have redied to it. That would have
been the natural and convenient way for this case to have been conducted.
But since this cannot he so, it appears to Her Majesty's Government that it
falls to the United Kingdom to see that al1necessary materials, whether they
tell for or against the United Kingdom case, are put before the Court. We
take this approach in the light of Article 53 of the Statute, which requires the
Court to satisfy itself that a claim is well founded in fact and law.
In my endedvour not only ta present the United Kingdom's case but ais0
to give the Court such assistance as 1 can, 1 shall try to indicate various
arguments which might have been adduced against the United Kingdom at
this lectern, and in particular those on which lceland appears ta rely judging
by public stafements and the letter 1 from the Foreign Minister of lceland to ,
this Court of II January 1974. The plan which we have adopted in Our
Memorial on the Merits of the Dispute in an attempt to fulfill this task is as
follows. First, we have set out in detail the history of the dispute. Secondly,
we have dealt with the facts relating to the conservation and utilization of
the fisheries in the lceland area. In doing this, we have sought to show that
claims which the Government of lceland appears to put forward in support
of its action are unfounded. We have, we hope, demonstrated to the satis-
faction of the Court, by facts and figures in the Memorial, either from Ice-
landic or from unimpeachahle international sources, that from the point of
view of conservation and even from the point of view of the Icelandic econ-
omy it is not desirable, much less necessary, that lceland should be permitted
to take ail the fish in the area for herself. But in our submission, hoivever
desirable Iceland might find it to take al1the fish, that wouid not give her a
legal right to do sa. We have thought it right to present the true facts about
the fisheries. This isbecause Iceland's whole case, as it has been presented to
the world. has been coloured bv certain assertions. which. through continual
reiteratio", have acquired a ceitain plausibility. 'fhis pla"sibilit? disappears
when the assertions are more closely examined.
We also ask the Court to draw from these facts another important con-
clusion, which is directly relevant to the relief which Her Majesty's Govern-
ment seek in these proceedings. That is that the conservation of the fish
stocks in the area can. and indeed should. be adeouatelv assured bv azree-. .
inenl< bascd on siicniilic evidencc 2nd made ihroiiih c\i;ting ügencies.
The rtiird part itfoiir .Ve~iiorial prcscnis our suhniiision 3s ro the Iaw
rel~ting td fishcriesjurisdiction as iranèii* ihis case. Wc stsrt oith i hisiuriial
l II,p. 462.surnmary and then pars on to examine the law as it standç today. In Our
submisrion itir still the general rule today that States do not have the right
unilaterallv to interferenith fishine.on the hieh seîs bevond the 12-mile limit.
We then examine a number of ;rounds upon whichiceland seeks or might
seek to argue that the law has changed so as to permit her to do so. ln Our
submission there is no possible foundafion in law for her claims. But, as the
Court will be well aware, Our case is not wholly or mainly a negative case.
While we deny that Iceland has any right, under colour of conserving the
fish stocks'or anv other around. to take them al1for herself. we do not denv
that it is desirable that ;II necesary steps of conservation should be taken.
On the contrary, it is Our submission that it is the legal duty of al1interested
States first, to take the necessa.vste. for the conservation of the fish stocks
of the high seas,which are rescommrrnis,and secondly, to enter in good faith
into negotiations to conclude the necessary agreements to achieve this end,
agreements which will ensure that the various needsof the contracting parties
-and of the international community as a whole-are given adequate
protection.
We have set out Our arguments on this duty in paragraphs 300 to 307 of
Our Memorial. It is an important part of our case which 1 shall refer to in
detail later.
Such then is the scheme of Our Memorial and this is the scheme which 1
propose to follow in developing these arguments before the Court today.
First then, as to the history of the dispute. ..
It was in the earlv vears of the 15th century that fishine vessels from
ErigIînJ and ~cotlani f;rst niade rhcir üppçdrani; in the.;eJsdkund Iccl.znd.
I need nor. hou.ever, ask the Courtto considcr the history of British lishing
OR Icelînd du\r,n a11the intcrvenin~ centuries. Itis rurliçient to iake up thc
history about the middle of the 19th century. It was then that steam began
to be increasingly used as a means of propulsion for fishing vessels. The
advent of steam was accompanied by the development of more efficient
methods of fishing, notably the trawl. Thus in the latter part of the last
century trawlers beganfishing in increasing numbers at considerable distances
from their own coasts and difficulties inevitably arose, notably in the North
Sea area. These difficulties were of various kinds. There was uncertainty
concerning the rules which should be applied to bays, to islets and sandbanks
in delimiting the territorial sea.
In the absence of international agreements there ivas dirficulty in policing
fishery operations rarried <inby vescelsof one nation of the coasts ofanother,
Parttcularly whcn irîwling and drift-net fishine ucre carricd on in the sdme
localities at the same time. At the instance of the Covernment of the Neiher-
lands a Conference of the North Sea Powers was convened here at The
Hague in 1881 and drew up the multilateral Convention for Regulating the
Police of the North Sea Fisheries. That C~nvention was~ ~e~ - -n 1882. Ice-
land was at that period a dependency of Denmark and ~&mar kecame a
Party to the Convention of 1882.The ~eoaraohicai area to which the Conven-
tion applicd did not. honcvcr. includé th; u'atcrs around Iceland.
In 1901 the Convention between the United Kingdom and Dcnmark for
Regulating the Fishcries Outside Territorial Waters in the Ocean Surrounding
the Faroe Islands and lceland was siened. This bilateral Convention was
modelled on the niultilateral conventionof 1882 Ïo uhich lhltve refcrred.
Though the bilateral Convention contained a nri)vision îllouiiic of denuncia-
lion on two years' notice, it in fact endured for 50 years and throughout this
long period governed British fishing off Iceland. ARGUMENT OF THE RT. HON.SAMUELSlLKlN 443
Article 11defines the sea area reserved Io Icelandic fishing vessels.It is set
out in full in paragraph 7 of our Memorial. In efect it gave lceland an
exclusive fishery zone of three miles.
In 1948-when Iceland had become fully independent of Denmark and
was therefore responsible for the conduct of its own international relations-
the lcelandic "Law Concerning the Scientific Conservation of the Continental
Shelf Fisheries" was passed. The full text of an English translation of this
law is set out in Annex I ta the Memorial on the Merits of the Dispute
which has been submitted ta the Court by Her Majesty's Government.
Artic~ ~ ~ orovide~~-hat the Ministrv of Fisheries shall issue reaulations
establishing explicitly bounded cons&ation zones within the limiÏs of the
continental shelf of lceland wherein al1fisheries shall be subject to lcelandic
rules and control. Article 2 orovides that the reeula-ions oromul~ated un-er
Article 1 shall be enforced only to the extent compatible with agreements
with other countries to which Iceland is or may become a Party. The Reasons
for the Law suhmitted to the lcelandic ~arli~ment specified the Agreements
with which, so long as they remained in force, the provisions of the Icelandic
law might he incompatible.
On 3 Octoher 19~ ~~.e~Governrnent of lceland eave notice to the Govern-
ment of the United Kingdom of denunciation or the Convention of 1901.
Accordingly, the Convention ceasedto be in force after 3 Octoher 1951.Thus
it became Clear that the Government of Iceland was preparing to issue
regulations under its Law of 1948 which would exclude British vesselsfrom
sea areas, in which they had for centuries exercised the right 10fish.
At a meetine h-l~ ~ ~ ~ ~on in J~ ~~ ~ ~ ~2. the lcelandic Minister of
Fisheries informed Her Majesty's ~overnkent in general terms of the action
which the lcelandic Government was intending to take. Lt was clear that the
Government of lceland had alreadv settled uoon its course ~~ action and was
, -~ ~ ~ .
not prepared to negotiate or modify its plans in any way to meet the views of
Her Majesty's Government. The lcelandic Regulations ourporting to apply
to ~ritish vesselscame into operation on 15 ~ay 1952.iheir purpose was to
establish a baseline joining the outermost points of the Coast, islands and
rocks and closing of bays; within a line drawn four nautical miles from
this baseline al1 foreign fishing activities were prohibited. The efect of the
Regulations was to extend considerably the sea area reserved 10 lcelandic
fishermen.
An account of the events of the next four years is given in paragraphs 10,
II and 12of Our Memorial and 1do not think 1need repeat it today.
Ultimately discussions were held under the auspices of the Organization
for European Economic Co-operation. In those discussions representatives
of both the Governments and both the fishing industries rook part. In
November 1956 the discussions resulted in an agreement between the British
and Icelandic fishing industries. Landings of Icelandic-caught fish in United
Kingdom ports were resumed but were limited to a total annual value of
f1,800,000. British trawlers were allowed to take shelter in waters claimed
by Iceland without havine comoletelv to stow their fishine eear. There was
10be no further extension-of lceiandi; fishing limits pendin; the discussion in
the General Assembly of the United Nations of the Report by the Interna-
tional Law ~ommission on the Law of the Sea. Her Maiestv's Government
riiade il~lear th41 ihir Agrcenieni of Xovember 195h<h<iuidnoi be interpreied
a? a recogniiion of the Icgîl validiiy of the riisthods em~loyed by the Govern-
ment of Icelandfor determining fisheries limits.
The discussion in the General Assembly of the United.Nations resulted in444 PlSHERlES lURlSDlCTlON
the convening at Geneva in 1958of the first of the United Nations Conferen-
ces on the Law of the Sea.
The Cour1 will recall that the 1958 Conference failed to reach agreement
on the breadth of the territorial sea or on the extent of exclusive fishery
jurisdiction.
On 30 June 1958 the Government of Iceland issued a decree, which was
to come into effect on 1 Septemher 1958, purporting to extend Iceland's
fishery limits to 12 miles from new baselines. There followed a period of
some 18 months during which British trawlers were able to fish in the area
between 4 and 12 miles from the new baselines established by Iceland only
under naval protection.
In the autumn of 1959,the General Assembly of the UnitedNations decided
to convene a further United Nations Conference on the Law of the Sea in
1960. Its agenda was limited to the two questions of the breadth of the
territorial sea and fishery limits. On 22 Fehruary 1960 British trawler owners
announced that they would withdraw al1 their trawlers from the wholesea
area around Iceland as a gesture of goodwill pending the second Unrted
Nations Law of the Sea Conference. Vessels of the Royal Navy were also
withdrawn from the area around Iceland.
The Conference met in Geneva from 17 March to 26 April 1960. Of the
significance of the deliberations of the Conference for the development of
the international law of the sea 1 shall have more to say later. In the present
context 1willsimply observe that thedeliberations showed that States at that
Conference were firmlv o.oo..d to extendina terr-torial seas to 12 miles.
Thcy ucrc. hoireber, tcnding loudrdj d;ccptancc of the principle ihar ihcre
should be an cxclusivi:tishing rone of 12 mile,
lndeed a uro~ossl for a tcrritori<il sea of 6 miles iiith 3 furiher 6-mile
fishery zone.inwhich the vessels of countries which had habitually fished
there would have the right to continue fishing for a period of IOyears came
very near to being accented hv the Conference.
Ëelieving thatthe proceedings of the Second Geneva Conference might
enable both Governments to view the dispute about the fishery limits of Ice-
land in a new light, Her Majesty's ~ove~nment proposed fresh negotiations
with the lcelandic Government on several occasions during the months of
May to August 1960. The negotiations begàn in Reykjavik on 1 October
1960.1 need not today dwell on the course which the negotiations took. A full
accountwas given in paragraphs 19 to 42 of the Memorial on Jurisdiction
submitted to the Court by Her Majesty's Government and my predecessor,
Sir Peter Rawlinson, also referred to the negotiations in his soeech in this
Court on 5 January 1973.The Court itself in paragraphs 18 to 20 of its Judg-
ment of 2 February 1973referred to the negotiations so far as it found them
material to the question which the Court then had to décide, which was its
jurisdiction in the present proceedings.
1 simply therefore remind the Court of the main provisions of the agree-
ment which was ultimately reached between the two Governments on 11
March 1961. They are that the Government of the United Kingdom will no
longer ohject to a 12-milefishery zone around Iceland measured from specified
baselines which relate solely to the delimitation of that zone; that for a
transitional period of three years British fishing vessels will continue to be
entitled to fish in certain specified areas within the outer 6 miles of the 12-mile
zone during certain seasotis of the year respectively specified for those areas;
and that the Government of Iceland will continue to work for the implemen-
tation of the Althing Resolution of 5 May 1959 regarding the extension of ARGUMENT OF THE RT. HON. SAMUEL SlLKlN 445
fisheries jurisdiction around lceland but shall give to the United Kingdom
Government 6 months' notice of such extension and in case of a disoute in
relation to such extension the matter shall at the request of either ~arty be
referred to the International .Court of Justice. For 10 years the Agreement
worked satisfactorilv and eave rise to no oroblems. ~he~ritish catch did not
rise over the IO-year period. It presented no threat to the fishery.
On 14 July 1971. however, following a-.eneral election in Iceland and the
formation of a ne;~Gov~ ~ment there. ~~~olic. sta.ement was issued bv the
Covcrnnicnt oi Iccl:ind. It innounced thüt ihe fi\heries dgrccments ~11hrhe
Unitcd Kingdoin and the tcdrrül Rcnubli; uf Geriiiüni nr~uld he tcrminated.
It was intended that there shoiild be an extension of the fishery limits of
Iceland up to 50 nautical miles from the baselines. This extension was to take
effectnot later than I September 1972.
Of the exchanges which took place between Her Majesty's Government
and the Icelandic Governnient in the following two years a full account was
given in paragraphs 18 to 53 of our Memorial on the Merits of the Dispute
and 1 need only pass them under brief review today. In the first phase of the
negotiations Her Majesty's Government sought to persuade the Icelandic
Government not only that the proposed extension of fishery limits to 50 miles
would have no basis in international law but also that any lcelandic anxiety
concerning the stocks of fish around Iceland could be allayed by catch
limitation. The United Kingdom was prepared to limit the total British catch
to the average taken by British vessels from the area in the years 1960 to
1969, that is to 185,000 tons a year. This voluntary and unilateral limitation
might be the basis of multilateral conservation measures agreed with other
interested States within the framework of the North East Atlantic Fisheries
Commission. This phase of the negotiations was brought to an end on 24
February 1972 when the lcelandic Government gave to Her Majesty's
Government formal notice of the intention to extend fishery limits to 50
miles with effect from 1 September 1972. On 14 April 1972 the Application
by which these proceedings were commeoced was filed with the Court by
Her Maies-v'.~Gov~ ~m~ ~ ~ ~ ~ ~
Nevertheless negotiations continued. In this second phase the objective,
so far as Her Maiesty's Government were concerned. was however diiïerent.
It was. if uossibie. <o reach an interim aereement without oreiudice to the
position or either Party regarding the sugtantive dispute. ?O ihis end, Her
Majesty's Government again offercd a restriction of fishina. This phase of the
negotiations came to an éndon 14July 1972when the lceiandic Government
issued legislation to extend its fishery limits to 50 miles from baselines with
effect from 1 September.
On 19 Julv 1972 Her Maiestv's Government filed with the Court their
request for interim measuresof protection and the Court made its Order of
17 August of that year. The Court will recall the provisional measures which
it then indicated. The first requirement was that the Parties should ensure
that no action of any kind was taken which might aggravate or extend the
dispute submitted to the Court. The second requirement was that the Parties
should ensure that no action was taken which might prejudice the rights of
either.Party in respect of the carrying out of whatever decision on the merits
the Court might give.
A requiremeni imposed specifically on the United Kingdom was that she
should ensure that her vessels did not take an annual catch of more than
170,000 tons of fish from the sea area of Iceland as defined hy the Inter-
national Council for the Exploration of the Sea as Area Va. Legislation446 FISHERIES IURISDICTION
was brought into effect in the United Kingdom in order to implement this
obligation. The details were set out in the Agent's letters 1of 19 December
1972 and 20 February 1974. The catch figures have also heen supplied to the
Registrar. The catch hetween 1 Septemher 1972 and 31 August 1973 was
160,714 tons, well within the limit 1 am now able to inform the Court that
the catch for the six-month period from 1 September 1973 to 28 February
1974 was approximately 60,850 tons. That again is plainly well within the
limit indicated in the Court's Order.
The requirements imposed hy the Court specifically on Iceland were first
that she should refrain from taking any measures to enforce the regulations
of 14 July 1972 against Britissh vessels engaged in fishing activities in the
waters around Iceland outside the 12-mile fishery zone: and secondly that
she should refrain from applying administrative, judicial or other measures
against British vessels, their crews or other related persons because of their
having engaged in fishing activities in the waters around lceland outside the
12-miTefisherv zone. '
Her Iajesty's Government ai once nidde ilclzxr Io the Governnient of
IceldnJ thdt the). uoulJ co-<,perate in i2rr.in- out I~C Order of ~heCour1 2nd
they have consistently done ;o.
The Government of Iceland, on the other hand, stated that it would not
consider the Order of the Court as binding in any way since, so it was alleged,
the Court had no jurisdiction in the matter. The Icelandic Government also
stated that it was prepared to continue efforts to reach a solution of the
problems connected with the extension of the lcelandic fishery limits.
The Court will be aware that there have been difficulties on the fishing
grounds while these proceedingshave heen pending. When Sir Peter Rawlinson
addressed the Court in January of last year, he gave some account of the
interference with British fishing vessels by the Icelandic coastguards which
had taken place despite the interim measures of protection indicated hy this
Court.
1 do not, however, intend to dwell on those matters because, happily, on
13November 1973 an Agreement was concluded between the Parties, since
when there has been no further trouble.
A copy of the Agreement has been delivered to this Court with the Agent's
letter2 of 21 November 1973 and there is no need for me to go into its terms
in detail. It is an interim agreement "ride r hich the United Kingdom agrees
to imnose certain restrictions on the activities and ~a~ch of-- - ~ ~ -hi-e vessels
in th&lceland area over a two-year period.
The important thing about this Agreement from the point of view of these
proceedingsis that it expressly states-that it does not affect the legal position
or rights of either Government with regard to the substantive dispute under
the Agreement of 1961 which remains unresolved.,
Nor is the Interim Agreement incompatible with the Order of the Court
of 17 August 1972, which was continued hy the Order of 12 July 1973,
indicating interim measures of protection which the United Kingdom has
continued to observe pending the judgment of the Court on the merits of the
dispute.
The Interim Agreement does not amount to an abandonment by lceland
of her claim to a 50-mile exclusive fishery zone. Nor does it amount to an
admission hy the United Kingdom that Iceland has any right to impose
II,pp. 405 and 464.
II,p. 458. ARGUMENT OF THE RT. NON. SAMUEL SlLKlN 447
restrictions unilaterally on United Kingdom vessels outside the agreed
12-mile limit.
IIis perhdp. unforliiniir' ihat thc Foreign hlinister of Iccldnd in hi, leticr
of 1I JdnuJry 1974Io ihis Court fell ilnecer3dry to reler Io ihç ienrion i\hi~h
was reduced by the Agreement as having been "provoked by the presence of
British armed naval vessels within the 50-mile limit".
Now that we have this Agreement 1 would not have wished to refer at al1
to the unhappy events which preceded it. But since Iceland has raised the
matter, 1will say just a word.
Her Majesty's Government have ample evidence that the tension on the
fishine rounds was not caused bv the Dresenceof vessels of the Roval Navy,
. but ratier by the harassment of unarmed United Kingdom fishing vessils
contrary to the interim measures indicated by this Court.
This harassment began and continued for over eight months before the
arriva1 of the Royal Navy. It involved damage to valuable fishing gear and
constant danger of collision. There were also several incidents in which
unarmed vessels were fired upon and on occasion hit. It was only following
such incidents that vessels of the Royal Navy were ordered to enter the
fishing area on 19 May 1973.
However by 3 October 1973 the tension had been sufficientlyreduced to
make it possible for Her Majesty's Government to withdraw their naval
vessels from the disputed area.
Six weeks later, following discussions between the British and lcelandic
Prime Ministers at No. 10 Downing Street, the lnterim Agreement was
concluded by an Exchange of Notes in Reykjavik.
Before leaving the history of the dispute, there is one further aspect with
which 1must deal.
The facts regarding the harassment by Iceland of British vessels on the
hi-h seas have been set out in o.raar-.hs 308 to 314 of the Memorial. That
harassmcni war pliiinly conirary 10 ~niernat~on.ilId\\ i\lc\erihelo>. in vicn
of the conclusion of the Inreriin Agieiiiieni. Her M.ije,i)'s tiovcrnnicni have
decidrd no1 10 Dursuc suhiiiisiion i/.in oardarrr>h 319 of ihc 3lcmoridl, so
that it is not necessar~ for me to trouble ihe Couit with a recital of the facts
of the varions incidents. In the view of Her Majesty's Government, of course,
any repetition of such acts of harassment would be contrary to international
law.
1 now turn to the facts relating to the conservation and the utilization of
the fish stocks in the Icelandic area and the contentions which the Icelandic
Government appear to be making on the subject.
First of al1 there is the contention of the Icelandic Government that its
proposed measures are necessary for the preservation of the fish stocks. This
claim. which has been constantlv reiterated in Icelandic statements. is to be
isunJ, for example. in ihc IcelanJi; I'ureign \lin~sir)'s piibli~xiioii1.1shr.rirs
Jiiris~lirriiniIr..l<ind\\hich for ihe inforinaiion of rhe Couri ur ha\,c dnne~ed
to Our Aooiication institutin~ n~-~-~dines (enclosure 2 to Annex H. D. 28,
supra) (the publication is dated ~ebruarGÏ972).
The Icelandic Foreign Ministry there says:
"Further implementation of the 1948 Law is becoming ever more
urgent. Fishingtechniques and catch capacity are rapidly being developed
and about half of the catch of demersal fish in the lcelandic area has
been taken by foreign trawlers (Fig. 2). The danger of intensified foreign
fishing in lcelandic waters is now imminent. The catch capacity of the distant water fleet of nations fishing in lcelandic waters has reached
ominous proportions (Fig. 3) and it is well known that their activities
are increasingly being directed towards the waters around Iceland. The
vital interests of the Icelandic people are therefore at stake. They must
be protected",
and a little further down:
"Theoretically, adequate conservation measures can be adopted
through agreement between nations fishing in a given area. Experience
has shown. however. that the imolementation of such aereements has
given very heagre reiults indeed. And it is difficult to devrse a workable
system. The coastal State, being vitally concerned, is in the best position
ta take the measures required."
What they aresaying, in effect, is that the fish stocks are in imminent danser
and can onlv be etïectivelv vrotected bv..iving-comvlete control to the coastal
tat te-thacis to say to lceiand.
In Part III of the Memorial we have carefully examined the actual facts
regardina the state of these fishinx arounds and these fish stocks. and there
isample-scientific evidence available. In my submission that examination
leads to the conclusion that there is no foundation for the allegation that the
demersal fish stocks in the Iceland area are in imminent danger.
There was no such danger in February 1972 when this Icelandic claim
was made and now two years later no such danger has materialized.
Nor can Hcr Maiest.'s .overnment accept that, even if there had been
rush 3 danger, ç<introl by the<dasial Sixte u,iiild h.iie bcen the nidji cl~ectivc
incrhod, Ici alone the ainlyetTecti\e iiiethod. of ilcxlinb:uith il.
IIir no1 clcar \\hciher 1sel:ind issd,ing th;itth:. alleged riecesriry give* lier
a legal right ta take unilateral actioR or whether she-is saying th$ having
regard to the necessity she intends to take unilateral action, whether it is
legal or not.
Suffice it to say that, in my submission, while no necessity couldjustify the
proposed extension of the limits, the alleged necessity did not-and does
not-in fact exist.
May 1 examine the Icelandic statement more closely? "Fishing techniques
and catch capscity are rapidly being developed and about half of the catch
of demersal fish in the lcelandic area has been taken hy foreign trawlers."
That statement seems to imolv that the recent raoid develooment of fishina
tcchn!q~ci ha, dri~en the fo;eysn proporiion of the cïrch up'io liilf. \\,th thé
irnplicarion ihai ihe I~.elsndicshdre h.ijFdllenand 1slihely~ ~ ~dl) ro fsll slill
further. If that were so. of course. the lcelandic Government miaht have
justifiable cause for alarm. -
But in fact the exact opposite is the case. This is clearly shown by the table
at Annex 18 ta our Memorial (p. 398, supra). By and large over the 50 years
between 1918 and 1968 the foreign share of the catch, except during the
Second World War, was well over half. On the other hand, in the years
since 1968 the Icelandic share has consistently been more than half.
This can be seen at a glance from column 5 of the table at Annex 18.
Column 5shows the percentage of the total catch caught by Icelandic vessels.
TO bring that table up ta date, 1 may say that there was no change in this
trend in 1972. The Icelandic share for that year was 55 per cent. That per-
centage can be written in under column 5of the table against the year 1972.
Nor, looking at the last column in that table, has there been any change in The spawning stock does not, therefore, appear to have been adversely
affected. Indeed, there is every likelihood that catches will continue to show
over the next few years that rémarkable pattern of stability to which 1 have
referred.
In order to complete the ~icture. 1 should oint out that as well as the
process of recruitment just dëscribed, the spawning stock is increased by 20
to 30 percent. each year by cod which migrate from the seasnear Greenland
into the Iceland area.
The foregoing survey does not mean that fishing of the cod stock in the
seas around Iceland can be free and unrestrained. Careful husbandry is
required.
1 would, however, repeat with confidence what is said in paragraph 73 of
the Memorial that the limitations on catch imposed by this Court in its
Orders indicating interim measures of protection have been more than
adequate for the purpqse of preventing any further reduction in the size of the
spawning stock.
The lnterim Agreement of 13 November 1973should have the same effect
durine its currencv orovided onlv that Iceland. on whom no catch restriction
is placed, keeps hércatch within-reasonable bounds.
Accordingly. the conservation question is not a matter which can he called
urgent, in the sense of calling for immediate and drastic measures. It is
certainly a matter which can be dealt with by the North-East Atlantic
Fisheries Commission, or rather which could be dealt with by the Com-
mission under Article 7 of the Convention, ifIceland had not refused her
CO-operation.
The Court adjoi<rnedfrom 11.20 ro 11.55a.m. QUESTiONS BY MEMBERS OF THE COURT
QUESTIONS BY JUDGES JIMGNEZ DE ARÉCHACA AND DlLLARD
The PRESIDENT: Before 1 cal1 on the Attorney-General 1 wish to give
an opportunity to two colleagucs of mine to put some questions and they
would formulate them now-Judge Jiménezde Aréchaga and Judge Dillard.
Judee JIMÉNEZ -- -E-ARÉCHAGA: With resnect to the conceot of
preferential fishing rights of States in a special situation, the Memorial
examines the subiect from the view~oint of the resolution adopted at the
1958 Conference on the Law of the sea. 1 would appreciate it if counsel for
the Applicant would examine the applicability to the present case of the
conceDt of preferential riehts. toaether with the ~rocedure for implementing
them,-as they were defined in th; amendment b; Brazil, Cuba and uruguay
which was incorporared by a separate vote in the final proposal which nearly
secured a two-thirds maioritv at the 1960 Conference. and which. accordinc!
to the Memorial, reveals thégeneral consensus on the permissible extent of
a coastal State's fisheries jurisdiction.
My second question is: 1 refer to the record of the discussions leading up
to the 1961 Excha~ee~o--No~es wh~c~ ~ap de~osit.~.in the Reristrv in the -,
jtiri\di:l~onal ph;tse of ihe,e procee<ling>anJ 1 ïlro rcfer IO p2rÿgr:~ph 229
of the Mcriiorial 31, aiiestisn 1s.is iiioiiiended by the Applis~ni Ihxi in the
1961 Exchange of Noies Iceland undertook the obligationnot to extend its
fishery limits beyond 12 miles, or to do so only pursuant to a bilateral or
multilateral agreement or pursuant to a decision by this Court recognizing
her rieht to do so under ~~ ~rnational law?
~hcthird queittim 1s:in ihe Iight of the conicnrion that a rule ofcustomary
Iïu. c~isis fixing for Icelïnd a iiiaxiiiiuiiifishcries liiiiiof IZ niiles. uhït are.
in the submission ~ ~the Ao~licant. the relevanc-~an~ ~iTectof the nro~osals
and si;trcnient\ inïdc on';he sublect of fisheries jurtsdiction during the
General I>ebare hcld rn ihr Sea.ned Commiiteï and lis Subcomniiitee II in
preparation for the Third Conference on the Law of the Sea?Could they be
regarded as part of the evidence on the current practice andopinion of States?
Judge DILLARD: Mr. President, 1 seek the assistance of counsel for the
Applicant on two questions. .
My first question is focussed on the submissions of the Applicant in
paragraph 319 of its Memorial on the Merits, read in conjunction with
paragraphs 300 and 318 (O).
The question is this: is it the contention of the Applicant that its first three
submissions, that is to say, submissions (a), (6) and (r), are so connected
that it is necessary for the Court to adjudicate on the first in order to adju-
dicate on the second and third?
My second question, which is more abstract, focusses on possible diver-
gences of views as to the exclitsive character of Iceland's claimed extension
of her fisheries jurisdiction. It invites an opinion on the nature and scope of
the Icelandic Regulations of 14July 1972including the statement in Article 7
of those Regulations that they are promulgated in accordance with Law No.
44 of 5 April 1948 and the question enquires, in the light of the negotiations
preceding and subsequent to the promulgation of those Regulations and in
actual practice, whether the asserted claim to exclesive jurisdiction is not
susceptible to a narrower meaning than is usually associated with the term"exclusive". The question isalso partially inspired by the allusion in paragraph
247 of the Memorial to what is there called "trulv exclusi,e ~la~ ~". The
specific question is that:
1sit the contention of the Applicant that the Government of Iceland's
claim is exclusive in the absolute sense that she reserves the right to exclude
oll fishing by foreign nationals in the extended areas excepr as she might. in
her discretion, permit it; or is it that Iceland reserves the right no1 ta exclude
al1 fishing by foreign nationals, but ta regulate and institute measures of
control of such fishing either because of her special situation as a coastal
Slate dependent on such fishing or in the interest of conserving the living
resources of the sea in the extended areas?
Put more broadly: is it the contention of the Applicant that, basically,
Iceland's claim contemplates not the accommodation but the extinction of
the rights of the nationalsof the United Kingdom to fish in the extended
areas?
The PRESLDENT: The Agent shall be at liberty to reply immediately or
at a later lime. 1
1 See pp. 479-493,infra. ARGUMENT OF THE RT. HON. SAMUES LlLKlN 453
ARGUMENT OF THE RIGHT HONOURABLE SAMUEL SILKIN
(cont.)
COUNSEL FOR THE GOVERNMEN TF THE UNITED KlNGDOM
The Rt. Hon. Samuel SILKIN: Mr. President, these are questions which,
if the Court will permit, 1 will defer answers to, and which may perhaps be
answered by my colleagues at a later time. As iar asthe last question is con-
cerned I think it will be found that il is Io a degreecovered in my submissiotis,
but 1will seethat it is specifically answered nevertheless.
Before the adjournment 1 had made observations on the first of the con-
tentions of the lcelandic Government, that is to say that ils proposed mea-
sures were necessaryfor the preservation of the fish stocks. 1come now to the
second claim bv lceland. that is to sav that ~roblems of conservation cannot
cffeit~uely be déalt\rith by tnrcrnattonal agr;cmcnt. Upon that Her X4ajerty.s
Govcrnnicnt fccl hound to say ihai this i$not borne out eithçr by uhat har
happened in the pas1 or by what is going on in the world today. Leaving
aside al1 questions.of international equity, it is very doubtful whether the
fish would be better conserved by leaving them to the tender mercies of the
coastal State than by limiting catches by international agreement.
We have referred in the Memorial to the conclusion of the Food and Agri-
culture Organization in their report entitled Review of the Slarrnsof Some
Heavil~ Era~oiled Fish Stocks.In paragraoh 84 of that Report. which is cited
in paragraph 79 of the ~emorial.'it isitaied that there are "at least as many
examples of depleted resources which were under the control of a single
country ... as of those occurring outside national jurisdiction". Unfor-
tunately coastal States, although, as the lcelandic Government rightly says,
they are vitally concerned, do not always take the measuresrequired.
At this point 1 feel bound to refer to the history of the Atlanto-Scandian
herring. This matter has been dealt with at some length in the Memorial
because, unfortunately, it casts a grave doubt upon the credentials of the
lcelandic Government in matters of fish conservation. The herring stock in
the lceland area and the North Atlantic generally was a stock with which
Iceland, 10quote her Memorandum. was "vitally concerned". Yet no sooner
had she devised a new technique of exploiting itthan she attacked that stock
so hard and so unremittingly that for al1practical purposes she wiped it out.
A full account of the fate of that stock has been set out in the Memorial, and
ifany Member of the Court thinks that what 1havejus1 said is exaggerated 1
would ask himto check il bv reference ta those facts and fieures.
Perhaps at this stage iticenough ta compare the last part of the graph of
the catches of demersal species in the lceland area at Annex 19 of Our Me-
morial showine the catches between 1960 and 1971 with the araoh of the
catches of herrrng in the same area over the same period. The deieisal graph
is ta be found on page 400, sripro, of the ,Mernorial. It is a graphical
representation of the table to which 1 have just referred. The herring graph,
which is Annex 25 to the Memorial, is on page 408, snpra. The demersal
graph may be said to be a typical graph of the catches in a stock which is not
being over-exploited. There may have been, as the lcelandic Foreign Ministry
States,a rapid development of fishing techniques, but they have not damaged
the stock. The herring graph on the contrary shows what happens when a new
technique is ruthlesslv ex~loited. And that techniaue was both devised and
applied by Icelandic fish&men. Other nations plaied a minor role; United
Kingdom fishermen no part at all. Looking at that graph, that is Io say Annex
25 on page 408. supra. one sees that in 1960 the total herrine. catch was
224,006 tins. lceland took rather over 60 percent. of that catch. The remain-
der was divided between four other nations, of which Norway was by far the
most important. The table opposite the graphs shows the details.
In 1960 a new technique of catching herring was devised by Icelandic
fishermen. There is no need to go into details. It was indeed a very effective
technique. By 1965 the catch had been quadrupled, and nearly al1 of it was
taken by lceland. But the effect on the stock was very great. By 1967the catch
had dropped to little more than half the 1960 figure. Measures of catch
limitation were then introduced, but it was too late. So far there has been no
material recovery of the stock.
While no doubt the Icelandic Government regrets this mistake, it does
show that the coastal State, though, to use theianguage of the Icelandic
publication, "vitally concerned", does not necessarily take the conservation
measuresrequired.
Nor is it right to say that international agreement has produced meagre
results. The stability of the dernersal catch in the lceland area itself owes
much to the agreed liniits on mesh and size of fish imposed under various
treaties and since 1963 under the North East Atlantic Fisheries Convention.
As was shown in paragraph 97 of the Memorial, under the North East At-
lantic Fisheries Convention, provision was made for the introduction of catch
quotas and now, with the exception of Iceland, al1 the member States have
expressed willingness to introduce them.
Under the machinery of that treaty, the power to impose catch quotas
depends upon the agreement of al1 the member States. AI1 except lceland
have agreed. (Belgium, 1 should say, has agreed in principle, but the formal
procedures of acceptance have not yet been fully completed.) Since the
Memorial was delivered, lceland has in fact agreed to accept therecommen-
dation under Article 7 (2) but with the significant reservation that itshall not
apply to the 50-mile zone around lceland itself.
Meanwhile in the North-West Atlantic, international catch control is
steadily advancing. 1 should like to invite the Court to look at Annex 28 to
the Memorial, which cornes on page 411, supro. Members of the Court
will seeindicated the catch quotas for cod agreed by the International Com-
mission for the North-West Atlantic fisheries up to July of last year. The
areas indicated by diagonal hatching are those for which cod catch quotas
were then already in operation, while the speckled areas indicate those for
which they had been agreed.
Since then the catch quotas which are shown on that niap as having been
agreed have al1 come into operation. That is to say the whole of the areas
shown speckled can now be regarded as hatched. This includes the whole of
the sub-areas 1 and 2, that is the west coast of Greenland and the northern
part of the coast of Labrador and section 3M which can be seen as the only
unhatched area off the Grand Banks of Newfoundland.
In the North-East Atlantic, there were no quotas in operation in July
becauseof the difficulty over Article 7 (2) of the Convention. but Quotaswere
aIre.lJ) ~11dcrneg~~ii:,li.~nover large srcdi m:irkeJ by :ru.*-h.irctiing.
Tli.11irSpiirbergcn. Rcdr Iilancl, Hlrent\ Se:,. the S<irnegi;in cc~djtdnd the ARGUMENT OF THE RT. HON.SAMUELSlLKlN ' 455
Quotas in respect of the Sorrh Seaarea uerc under preliminary negotiation.
Scncclasi July. in spitc of ihc difliculty ovcr Article 7 (21of the Cont,ention,
there has bcen a sianitic~ni ad\,ance in the North-East Atlantic areï and I
shall be referrine totwo recent aereements of which notice has been eiven to
the Court in the>gentss letters 1if 14and 20 March of this year.
The three countries mainly concerned-the United Kingdom, the Soviet
Union and Norway-have agreed earlier this month on-catch limitation
measures for the whole North-East Arctic area. That is Io say, Spitsbergen,
Bear Island,,Barents Sea and the Norwegian Coast. Other countries, which
fish in the area in a small way, are no1bound by that agreement. But NEAFC
members gave a general undertaking no! to undermine agreements of this
sort, reached outside the formal framework of the Commission.
The second develooment is well worth describine in detail. In Seotember
1973.the countries which participate in the fishery ihthe Faroes ~rea;without '
waiting for complete acceptance of the recommendation under Article 7 (2).
entered into a conservation arraneem-nt. The countries concerned. which
are al1 parties to the North-East Atlantic Fisheries Convention, are Belgium,
Denmark, France, the Feneral Republic of Germany, Norway, Poland and
the UnitedKinedom. As far as the cod and haddock are concerned. bv far the
larges! participants in the past have been the United Kingdom and ihé Faroes
themselves.
1 will read, if 1 may, to the Court part of that agreement. The preamble
runs:
"The Parties to this Arrangement,
Realizing that the scientific evidence available calls for immediate
measures for the DurDose of conservation of fish stocks in the Faroe
Area (ICES ~tatisiicai Division Vb);
Considering the exceptional dependence of the Faroese economy on
fisheries. and
Recognizing that the Faroe Islands should enjoy preference in waters
surrounding the Faroe Islands;
Have agreed as follows:
Arricle 1
The fishing for the demersal species cod and haddock in the ICES
Statistical Division Vb shall be limited annually as prescribed in the
catch limitation scheme hereto (Annex I),which shall be an integral part
of the present Arrangement."
Annex 1 orescribes an annual catch for the Faroes of 32,000 tons. for the
United ~ingdom of 18,000 tons and for the other parties of 2,000 tons.
There are other provisions dealing with other speciesand other conservation
measures to which 1 need not refer. In my submission, this is precisely the
sort of agreement which should beentered into when it is shown that measures
of catch restriction are necessary for conservation.
Ir is this sort of agreement mrtrarisminandis which should be entered into
in respect of the lceland Area. lndeed it is the sort of agreement that 1 shall
presently ask the Court to declare that parties to this caseare under a duty to
negotiate.
lhave described that agreement at length no1 only becauseit demonstrates
the type of agreement which Her Majesty's Government-and, one may
--
1 II,pp.471and 472.safely assume, !he other signatories-regard as appropriate and proper.
There are, in addition, Iwo other factors of special interest.
First, the Faroese problem, though smaller in scale, has a close similarity
with the lcelandic problem. The high dependence of the coastal State on
fishing, the condition of the stocks. the degree of participation by other
nations and the aoorehended danaers are al1oresent.
Secondly, the tke-scale is of inÏerest. The iisues were raised by the Faroese
home Government, and the Danish metropolitan Government, early in 1973.
In Avril. the United Kinadom Government. whose fishermen had the areatest
interisi in the area, inviÏed them to bilateral talks in Edinburgh. In~ay, a
joint approach was made in London to the representatives of the other
governments concerned, who had gathered there for the NEAFC meeting.
After two rounds of multilateral negotiations in Copenhagën, agreement
was reached in September. Ratification followed quickly enough for the
agreement to enter into force on 1January 1974, which is, of course, within
a year of the matter being raised. Certainly, in this case, the process of inter-
national negotiation was not slow, nor were results meagre.
In view of this rapidly developing network of control by catch quotas, it is
hard.10 ~re~it the lc~la~ ~ ~a~serti-~ that~ ~e adootion of adeauate conser.
vation measures by agreement is only a theoretical possibility.
On the contrary, it is a uractical and effective method of dealing with the
conservation-o~ ~7em~ ~~ ~ne which fi~hine~ ~ates. an- in oarÏicular the
States which fish the North Atlantic, are in fact progressively adopting.
Indeed. if one looks at that mau. one has the imoression that the [celand.
~rea-[CES Area Va-will soon'be the only important cod fishery in the
North Atlantic where catch quotas are not in force.
In view of the apparent weakness of the lcelandic case as to the necessity
for unilateral measures for conservation, one is driven 10 ask whether her
real reason is not the second one she has given. That is the alleged need for
her to take al1the fish in the interests of her own economy.
Pausing there, 1 repeat that, in my submission, even if it were true that
lceland could not expand her economy unless she look al1the fish in the area
for herself, that would give her no legal right to do so.
But is it true? Naturally, if is with some diffidence that 1 speak about the
economy of another country and so I shall not go into detail. Of course the
facts as to that could have been recorded for the Court by lceland had she
been here. But I would simply Saythis.
First ofall, let us get rid of the idea of lceland as a nation of impoverished
fishermen clinging precariously to life.
Iceland, in fact, has a high standard of living, as the Court will seefrom the
table of OECD statistics-a copy of which has been delivered to the Court.
Measured in terms of gross national product per capira, lceland is placed
about half-way up the table of the OECD countries. Her position in that table
has. in fact, been.steadily rising.
Of course 1accept that the lcelandic economy is largely dependent on fish.
But not entirely so by any means. As has been shown in the Memorial, her
economy is becoming steadily more diversified and lessdependent on fishing.
The importance of this fishery to the United Kingdom has been described
in paragraphs 137to 148ofour Memorial. The United Kingdom has a popu-
la!ion of over 50 millions, living on islands which physically cannot produce
enough food to feed the inhabitants. Fish is an important element in the
protein supply. Fishing is an iinportant source of employment, especially
when the ancillary occupations on shore are brought into account. Fishermen, ARGUMENT OF THE RT. HON. SAMUEL SlLKlN 457
notably from Hull, Grimsby and Fleetwood, have sailed for lceland for
generations. Fishing grounds nearer home are fully exploited by the vessels
of many nations including Iceliind. Nor is the United Kingdom the only
nation other than lceland which is dependent on this fishery. In particular,
the Federal Republic of Germany has long relied on the area for an important
--.. -~ ~~-~.~~~.~~.
It may be that to enable lceland to maintain a reasonable rate of expansion
sheshould be ~ermitted to take illarger share of the demersal fisherv than in
the past. If soi this can be dealt with; as in the case of the Faroes, by giving
her, as the coastal State, a preferential quota in an agreed catch limitation
scheme. But to allow a country with.a population of about 205,000 which
has for many years taken about half the demersal catch from this valuable
fishery suddenly and from a date of ils own choice Io take il all, disregarding
the needsof other nations, would obviously be inequitable.
1turn now to the law as it relates to the lcelandic claim. In Part IV ofour
Memorial we have traced at considerable-l hope no1excessive-length the
development of the law relating to the territorial sea and fishing limits. Our
purpose in doing so was no1 of course Io enter into academic debate on such
questions as whether the 3-mile limit was a universal rule of law, though
modified by exceptions such as the Scandinavian 4-mile limit; or whether the
3-mile rule was merely a generitl rule forming part of a wider and more
flexible system; or again when exactly the 3-mile limit came into existence and
whether ils origin lay in the cannon shot or in the range of vision or simply
in the league asa measure of distance.
These are interesting questions but they cannot affect the determination of
the law which the Court must make in this case.Our purpose was rather to
provide the general background against which the Court must make ils
determination of the modern law. This background. as 1submit that history
shows, is that there are only three possible solutions Io the problem of the
limits of the area over which a coastal State may exercisecontrol in the matter
of fisheries jurisdiction. The current expression, niiich used in coniiection
with the preparation of the forthcoming United Nations Conference on the
Law of the Sea, is "the limits of national jurisdiction", although 1 do no1
need Io remind the Court that the problem with which il is now seised
concerns only fisheriesjurisdiction.
The first possible solution is that there should be a more or less universal
treaty or convention settling the niatter. Such a treaty might provide an
identical limit for al1 countries or il might provide for local or regional
variations, but in principle it would be universally accepted. No doubt this is
the ideal solution but history demonstrates clearly that it has in fact never
been achieved. Attempts Io achieve it were made in 1930, in 1958and again
in 1960 but. although al limes agreement seemed near, successso far has
always eluded the negotiators. Let us hope they will be successful al the
forthcoming Conference.
In the absence of a treaty or convention "... general or particular, estab-
lishing rules expressly recognized by the contesting States". to borrow the
language of Article 38 (1) (a) of the Court's Statute, attention has Io be
focussed upon the second possible solution. This is Io be found in Article 38
(1) (hi which speaks of "international custom, as evidence of a general prac-
lice accepted as law". So important is this solution that 1shall have to devote
considerable lime to it.
A, for thc ihird paisible solution. I necd only nieniton ii brieflj beiause ii
i~ in fact nu solution. Iris bhcer aiisrchy. IIt\that e~chSixte should ha\e the458 F~SHERIES JURISD~CTION
righi singly to decide the limits of ils nationaljurisdiction for itself. Such a
condition would be not only intolerable but also quite unworkable because
there would be no way of settling conflicting or overlapping claims. There is,
however, no need Io spend any further time on it because the Court has
already excluded il. The Court has said in the Anglo-Norwegian Fisheries
case:
"The delimitation of sea areas has always an international aspect; it
cannot he dependent merely upon the will of the coastal State as ex-
pressed in ils municipal law. Although it is true that the act of delimi-
talion is necessarily a unilateral act, because only the coastal State is
competent Io undertake il, the validity of the delimitation with regard
to other States depends upon international law." (I.C.J. Reports 1951,
p. 132.)
1 return iherefore to the second pusrible solution-iniernîiii,n31 cusroni.
As rcgnrdr ihc posiiion of Icelïnd. iiiinui necerrary for the Court 10concern
iiself in detail mith remuie histuricdl quertions. The United Kingdom acccptr
the %tatementmade by ihe Icelandi: delegaie. Mr. Rjornsson. nt The llagur
Conference on 5 April 1930. io the elfc:t lhat 'In my counlry. 4 niiles hai
been the limit sincë the middle of the seventeenth century for al1 purposes,
including fisheries". (Cited in Memorial, para. 173.)
It is also not in dispute that as between the United Kingdom and lceland
the limit was 3 iniles between the date of the ratification of the Anelo-
Danish on vent oio1901 and October 1951when the denunciation of chat
Convention took enèct. There may be room for argument as to what was the
legal position between 1951 and the conclusion ofthe Exchange of Notes of
II March 1961. During that time, lceland was asserting at least a 4-mile. and
later a 12-mile, limit, from extensive straight baselines whereas the United
Kinedom did not acceDt Iceland's rieht to the 12-mile limit until 1961. The
lcel<inrlic deiree No. 70of 30 June 19?~as\ertingn 12-mile liniii was avwredly
an cntirely ncu ilaini. And jo ofcourie u.35 ihe clnini tï SO-milcIimii mdde
in the~lcelandicaide-mémoire of 24 Fehruaw 1972.whi'h in turn was followed
up by the Regulations issued on 14July 1972.
The question therefore is whether, given the state of general international
law in 1971-1972, and having regard to the long practical and legal interest
of the United Kingdom in the fisheries concerned, lceland was entitled to
assert her exclusive 50-mile claim against the United Kingdom from 1 Sep-
tember 1972.
For the lcelandic claim to be justifiable, il would have Io be shown that
around 1971-1972 international law permitted Iceland, despite the long-
established interest and riehts of the United Kinedom in the fisheries in the
high seasaround the lcel&dic coast, either (i) toextend her territorial sea Io
50 miles or (ii) notwithstanding her claim to a territorial sea of less than 50
miles. to make a claim 10an exclusive fishina zone of that distance
~shas been shown in paragraph 197 of the Memorial, even the Canadian
proposal (in document A/CONF.I3/C.I/L.77/Rev. 3) that the territoriasea
should extend for 6 miles from the coast was rejected at the Geneva Con-
ference in 1958 (A/CONF.I3/L,28/Rev. 1, para. 19). Proposais from lndia
and Mexico jointly (A/CONF.13/C.I/L.79), and from the Soviet Union (A/
CONF.13/C.I/L.80), that the territorialsea should extend for 12 miles from
the coast were likewise rejected (A/CONF.I3/L,28/Rev. 1,para. 20).
The Canadian delegdtion also proposed (in doc. A/CONF.13/C.I/L.77/
Rev. 3) that there should at ledst be an exclusive fishing zone of 12miles. This ARGUMENT OF THE RT. HON. SAMUEL SlLKlN 459
proposal, though approved by a narrow majority in the First Committee,
was not approved in plenary. It obtained 35 votes in favour, 30 against, with
20 abstentions and thus fdiled to secure adoption becauseof the requirement
that a two-thirds majority must be obtained. (Record of the 14th Plenary
-e-..ne~ -.rC~5~~)~~~.,
A United States proposal (in doc. A/CONF.13/L.29) that there should be
an exclusive fishing zone of 12miles. aualified by the ~reservation of the right
-~ S-ates ~hose fiiher~en~had trad;t;onallv fished in that outer 6-mile zone
to go on doing so, found more favour in the plenary, obtaining 45 votes for
33 aaainst: with 7 abstentions. but likewise failed to secure adoution because
of the two-thirds rule. (~ecords of the 14th Plenary Meeting. para. 60.)
A more elaborate version of this proposal, this time submitted jointly by
the United States of America and canada, received as many as 54 votes in
favour at the Second Conference in 1960, with 28 votes against and 5 absten-
tions, only to fall again because of the Iwo-thirds rule. A proposal at this
Conference to permit a territorial seaof 12miles did not even get through the
Committee of the Whole, being rejected there by 36 votes for, 39 against and
13 abstentions.
The Conference of 1958. whilst not aareeina to a ficiire for the maximum
brcïdih of ihc ierriinr.xl SC:,.Jid ;t.iopi ihe ('onicnt~oion ihc .rcrriiori.tlSea
and the Coniiguoiis Zone. The United Kingdom, althoiigh not f.illy \iiijficd
niih *II fe.iiiirci of ih.11C<>n\ciiiioii, r.iiificd ii 3r piri oi.lsgencra1 polt;! of
siipporiing cit~ri~ tnn-irds the ;.~iliiic.itiiin 2nd progrc*\i\c dc~el~~ptiicniof
inicrniti~ii.tl laa Ariiclc 24 coiictrn. thc coiiiigiiou. z.>nc-ci)ni!y.ioii; ICI ilic
territorial sea.Paragraph 2 of the Article provides: "The contiguous zone niay
not extend beyond 12 miles from the baselines from which the breadth of the
territorial sea is measured." It follows aforfiori that the territorial sea itself
could not extend beyond 12 miles from these baselines.
The ~oiifcrenîer~f 1958and 19h0 rrerc brudJIy rcprcicntaiivc of ihc intçr-
naiional c<)niniiiniiy as II \r.ÿsthen cornp<iscd. Ihc verdiii of ihc coiifcrenies
*.as ;illhai tirne firnil. op~ ~ed 1,) aitciiipis to extend ihc ierrilorial scÿ to 12
miles. It was tending towards acceptance of the principle that there should
be an exclusive fishing zone of 12 miles, provided that certain consequential
questions could be resolved. These concerned the position of States which
had traditionally fished there on the one handand the preferential position of
certaincoastal States on the other.
The four conventions of 1958 entered into force in due course and the
United Kingdom ratified al1four of them.
As has been shown in paragrÿphs 212 10 225 of the Mernorial. the period
between and after the two Genevzi Conferences saw the eniergence of a wide
measure.of agreement regarding the limits of fisheries jurisdiction. It has no1
yet proved possible to carry this into efect by means of a general international
agreement. However, a nuniber of bilateral and regional agreenients were
concluded. For example, the Anglo-Danish Agreement of 27 April 1959and
the Anglo-Norwegian Agreement of 17 November 1960, not to mention the
Anglo-Icelandic Agreement of I I March 1961 and the Agreement of 19 luly
1961 between lceland and the Federal Reoublic of Germanv. evinced a trend
towards acceptance of the 12-mile limit'as the general p;i"ciple with pro-
visions for protecting the interests of the States aficted by that acceptance.
Twelve miles next gained widespread acceptance at the European ~isheries
Conference in 1964 and that figure appeared in the m~iltilateral Fisheries
Convention which was adopted. Even States which did not attend the Con-
ference, such as Poland and the Soviet Union, accepted its outconie. A5 ,vas sh0u.n in par3graphs 27.3 ti~225of the Mernorial. acccptancc of the
12-niilc principlc \ras no1 soiifined Io Lurope. but rpredd diiring the pcriod
~ ~m ~ . . ~ ~ ~ to~ ~ ~ countri- - ~ ~anada. ~ei~ealand. Jaoan and the
United States. The decision of the Congiess of (hi United Statésto legislate in
1966 for a 12-mile exclusive fisheries zone is particularly interesting. It was
taken in the lieht of the exnress leeal advice of the State Deoartment.Writine
. - -
to the Ch:iirniiin i>fthe rclcv3nt Senatc <.'~~iiiniittec.the Assiitnnt Se~retary for
Conaresriondl Kcldtions uid th11 "sincc the 1360La>\ of the Sea Confrrencc
theri h~s~-ee~ a trend toward the establishment of a 12-mile fisheries rule in
iriternaiion;il practice". Hc further advisrd that "in vieii of the rc?ent dei,el-
opillents in international practisc. action hy thc Unitcd States at ihis timc to
establ~ ~ ~n exclusive fisheries zone extendinx 9 miles bevond the territorial
sea [Le., 3 miles]. would not be contrary to international law". His final
advice was to the efict that "inasmuch as US establishment of a 12-mile
exclusive ~i~ ~ ~e~ ~ ~e would tend to suooort the trend alreadv referred to.
the passageof the proposed legislation w&ld make itmore difficult, from thé
stand~oint of international law, to extend the zone beyond 12 miles in the
futuré".
lier Maje5ty's Goi'crnnient do noi contend thai by 1966 ihcre \ras a rule
of lau s,inipclling a c~iasi~lStitc IO hlivc iiic;cliirii.cfishcrics lone of 12inlles
corresponding to the rule of law, referred 10 in paragraph 151 of the Memo-
rial, which possibly does compel a State to have a territorial sea of at least 3
miles. 11is, however, reasonably cleür that by 1966 a State did not offend
aeainst international law if it introduced an exclusive fisheries zone extendinr!
fir 12 miles from the Coast, provided of course that it paid reasonable regard
to the interests of other States whose nationals had traditionally fished in the
area which was to becomethe subject of the extension.
This answers the question whether an extension of an exclusive fisheries
zone beyond 12 miles would be illegal; it would.
A diiïerent situation might arise in very exceptional circumstances where
the coastal State clairnecl not an exclusive zone but a non-exclusive conser-
vation zone.
The State urooosing such a non-exclusive zone would have to come within
one of the "siecial situations" mentioned in the resolution on Special
Situations relating to Coastal Fisheries adopted at Geneva on 26 April 1958.
It would have further to show that not only was there a demonstrated
scientific need for conservation of the fish stock, but also that this need
demanded an actual limitation of the catch within an area of the high seas
adjacent 10 its territorial sea. It would have further to show that the other
State or States concerned had failed unreasonably to collaborate with the
coastal State to secure just treatment of the special situation such as by
refusing to negoliate sincerely or, in the event of negotiations breaking down,
it would have to submit the disoute to imoartial conciliat~-~ ~ ~ or adiudication.
It would have finally to shoit'hat it washilling and able to impose on itself
the catch limitation that scientific research had shown to be necessary and
which it sought to impose on others. Il is only necessary 10 recite-these
conditions, and particularly the last two, to make itclear that the lcelandic
claim does no1 fall within this category.
The Corirr adjoi~rnedfrom 1 ro 3.05 p.m.
If the Court pleases,1will now deal in greater detail with the question which,
inOur submission, is fundamental to the dispute before the Court. ARGUMENT OF THE RT. HON. SAMUEL S~LK~N
461
That quesiion is: does international 1aw permli lceland ta inake and
enforce the claini ta a 50-niile exclusive fishery as againsi the United King-
dom'! Conversely. one could frsme the que5tion in thts way: is the United
Kingdoni obliged. firsi. io recugniie the lcelandic clatm to ha\e 3 fishcries
jurisdiction zone of 50 niiles. and secondly, is the United Kingdoni obliged
iiciept the claim tu exercire jurisdictionsu iis to exclude \es;els flying Ïhe
British flag from fishing u,tihin th.ii zune?
Llcfore I examine the rrounds <in \hich Iceland niight base ihose cl3ims I
should like, if 1may, to make two preliminary observaiions.
The first observation concerns the question of the burden of proof. As
Her Majesty's Government have made clear in paragraphs 228 to 230 of
their Memorial. . it ~s l~elan~ whi~~.~~~~eekine to ch~~ee the factual situation
inthe fishery and to challenge the established law. ~he law which developed
after 1945crystallized asa result of the Geneva Conferences of 1958and 1960.
Uoon the b&is of the Geneva Conventions. and State ~ractice subseaiient~~o
those Conventions, thelaw could be stated'in the following terms: a'coastal
State is entitled to claim an exclusive fishery zone UP to 12 miles. subject only
to recognition of any traditional fishing rights ofother nations within that
zone. Indeed. the Exchange of Notes of 1961between Iceland and the United
Kingdom reflected precisely that position and so lceland must haveconsidered
12 miles to be the maximum fisherv limit at that time.
Iceland's challenge to the estahfished law conirns the exercise of one of
the freedoms of the high seas.lceland itself has a territorial seaof 4 miles and
thus the juridical nature of the waters with which the Court isnow concerned
is that of high seas.In the High SeasConvention of 1958,Article I Statesthat
al1 parts of the sea not included in the territorial sea or interna1 waters are
hi-h seas. Article 2 eoe- on to sav that "the hieh seas b-ine ooen to a-.
nations", freedom of the high sensoperates sa as to accord Io both coastal
and non-coastal States "freedom of fishina". The Court will be aware that the
Preamble ta this Convention sta~e5~tha~.Ïhese rules were "eenerallv-declara-
tory of established principles of international law". That remains, in my sub-
mission, the established law. However, Her Majesty's Government will
normallvnow acceot a State's claim to fisheries iurisdiction of 12 miles where
it3.territorial sea is'less.I Saynoth& of what Changesmight be made in the
future; that is a matter for s~eculation and is irrelevant to the issuenow before
the Court.
Since itis lceland which challenges the established law. and, specifically,
the livelihood of the United Kingdom fishermen, it must be for lceland ta
prove ta the Court conclusively that her claim is justified in law. The burden
of proof rests very clearly upon those who wish to challenge the established
law.
My second observation concerns the sources of international law which the
Court should apply. As Article 38 of the Statute recognizes, the primary
sourcesare three: treaties, custom and general principles. If, therefore, lceland
seeks ta establish a legal right ta exclusive fishing within 50 miles from her
shores, it must be for lceland ta demonstrate that such a right derives from
one or other of those three sources.
Mr. President. an observation so elementary may strike the Court as being
trite and superfluous. 1 do not myself believe that it is sa. As the Court will
realize from reading the Memorial, Her Majesty's Government have felt it
incumbent upon them to assist the Court by examining the possible argu-
ments which Iceland might adduce, as 1 have already stated, if lceland were
here. In so doing, Her Majesty's Government have introduced in10 the Memorial
a discussion of various unilateral declarations by States, of declarations by a
nurnber of States acting jointly, of resolutions of the General Assembly of
the United Nations and of the Economic and Social Council of the United
Nations. ln due course. 1 will comment more s~ecificallv on such matters ~~~
when 1 turn to deal with the relatively new concépts of the patrimonial sea
and sovereignty over natural resources. But there is a fundamental point
which 1 wish Io rnake at the very outset. This is that al1such discussion is,
in a sense, irrelevant Io the main issue. The main issue mus1 be whether
Iceland now has the legal right she claims and whether the United Kingdom
has the corresoondinp. oblieation. That. in its turn. throws the Court back ~~ ~ ~
upon the basicpropos<tion Ïhat a legal rkht can onl; arise through one of the
established sources of law. It is in this context that 1have thought itright to
stress so elemeotarv ... oronosition. As 1 hooe to demonstrate more fullv to
the Court shortly. however interesting this oiher material on declarationsand
resolutions may be. in the last resort the Court is faced with the inescapable
question: is there a treaty, or a custom, or a general principle of law "pan
which lceland can base her clairn? With this question in mind, 1 would like
now to turn Io the various grounds upon which lceland rnighf seek to base
her claim. ifshe were here.
First, there is the continental shelf doctrine. Quite clearly, lceland is relying
on the proposilion thai the coastal State is entitled to the fishery resources in
the hieh seasabove the continental shelf. That is aDoarent fro&the lcelandic
Law of5 April 1948, which referred Io "conservat&n zones within the lirnits
of the continental shelf of Iceland". It is reiterated in the Althing resolution of
15 February 1972which referred to "the continental shelf of lceland and the
superjacent waters". And il is made explicii in a number of ministerial state-
ments referred Io in paragraph 232 of the United Kingdoni Memorial.
How, then, can such a claim bereconciled with international law? Certainly
there is no treaty binding either the United Kingdom or lceland which
supporis il. On the contrary, the Geneva Convention on the Continental
Shelf of 1958. Io which the Uni~e- Kinedom - is a .art.. sav. o.eciselv.the
opposiie. By Article 2,paragraph 4, of that Treaty the natural resourcesof the
shelf, over which the coastal State exercises sovereign rights, exclude-and 1
em~hasizethat-exclude free-swimmine f-sh
Is the 1:clanJic contention, then. s~pported 1i) cust,imary intcrn:ition.tl
Ia\r concerning the ci~ntincntïl rhelf! Agnin. the iin\uer m~~tbe .'n<i". fi~rthe
verv reaion Ih~t ,\rt~c.(e2 t~fthe C<l~ivcntio~o ~f 19% hrls bcer~rir-.-lv rccdr\leJ
by this Court as "reflecting, or as crystallizing, received or at least emergent
rules of customary international law". That pronouncement \vas made as
recentlv as 1969 in the North Seo Continental Strelfcases. In the res~ectful
submts~ion of Her Majcsty's Goi,ernnient. the ~our.t's pronouniemeni na.; 2
correct siïtement of the 13wand an aciurste reilçction of Staie practice. Is the
lcelandic claim suooo. .d. then. bv a e.ner-l orinciole of law? Clearlv not.
becauseone cannot contcmplate ;igener:il principlc ahich is 31 variance with
the established treaty and customary rule?.
Secondlv. .here is the question of oreferential rieh-.. and here 1can be verv
brief. Iceland's claim is clearly, in Our submission, to exchisive rights. Accor-
dingly, ifsorne concept of preferential rights were to form part of the law. it
could no1aiïord a basis for that claim.
Thirdly, there is the argument of the need for conservation, an argument
which receives very great emphasis in the lcelandic Law of 1948, in the
Althing Resolution of 15 February 1972 and in successive ministerial state- ARGUMENT OF THE RT. HON.SAMUELSILKIN 463
ments. If this is related to the acknowledged sources of international law,
then il must be observed that there exists no treaty between lceland and the
United Kingdom which supports the lcelandic claim to an exclusive fishing
zone extending beyond the generally accepted limit merely on the ground of
an alleged conservation need.
There is, however, extensive State practice, reflected in bilateral and multi-
lateral treaties, upon which a customary rule of international law rnight be
formulated. In paragraphs 270 to 278 of the Memorial, a pattern of State
practice dealing with conservation needs has been spelt out. In some six
difïerent oceans, and over a period of many years, some 30 or more principal
fishing States have estahlished a pattern of consistent conduct which involves
the regulation of 'conservation problems by agreement. This is a pattern of
conduct in which lceland herself has participated, notably in the Whaling
Convention of 1946, the North-West Atlantic Fisheries Convention of 1949
and the Iceland/Norway/USSR Agreement of 1972 and indeed under the
North-East Atlantic Fisheries Convention of 1959. as was oointed out in the
hleniorial. Iiideed. Her hla~eity'r Go\,crnnient trould regard the Geneva
Con\,cntion on Fiihing and Conrerv~iion of the Living Rcsourcej of the High
Seasof 1958as in large oart. ifnot entirelv. a crvstallization of a general and
-. . .. . .
concordant practice.
It is when one comes to foriiiiilate a possible customary rule, based upon
the need for conservation. that the incomoatibility between such a rule and the
Icelandic claim becomesappdrent. ~he'~ractice of States and the Geneva
Convention of 1958which 1mentioned, afiord someevidence of the emergence
of acustomary rule on conservation and ofits constituent elements. As oarties
to that convention. Her Majesty's Governinent would not object to'action
being taken in accordance with ils principles by a State which was not a Party,
In my submission. these constituent elements would be the followiiia:
~irst; there mus1 exist scientilic evidence of a need for conservation. Sec-
ondly, given such a need, the Stotes concerned are under a duty Io adopt the
necessary ineasures of conservation by seeking agreeiiient through negotia-
tions conducted in eood faith. Thirdlv. .,asu~e~of conservation must be ius- .
tified by the scient& evidence and must be non-discriminatory in form and
in fact as between the fishermeii of the various States concerned, except in
those caseswhere the States concerned agree on a system of catch limitation.
lt remains to test the Icelandic claim by reference to those constituent
elemenrs.
As to the first, 1 have already stated that Her Majesty's Government does
no1 dispute that there may noy be a case for an agreement on some system of
catch limitation.
As to the second element, lceland has made it abundantly clear that she
seeksto proceed unilaterally, and no1by agreement as the law requires.
As to the third element, lceland has made it equally clear that she does
intend to discriminate against the fishermen of other States in favour of her
own. In essence, Iceland has sought a monopoly over these fishing grounds
and was not prepared to accept any restriction on her own fishing. This is
totally al variance with the manner in which States regulate their common
interests in a high seas fishery when a conservation need arises. The law is
based upon the concept of res commrrnisand this Court will readily see that
monooolistic nractices cannot be reconciled with such a concem. Conser-
bation and dtiirimination are noi ryntinynious.
Thur, on IWO of the thrïe c~>n;liiiieni clcnicnti in ihc custoinary and ireaty
riilei relating tu conservation of lisheries on ihe high ,cas. Iceland'sclaim Fdilr. 1would emphasize that the Icelandic claim which fails by reference to
international law is the unilateral claim Io exclt~sivefisheries. The matter
would be quite different if lceland wère prepared to proceed by way of
agreement. Her Majesty's Government are fully prepared to examine any
casefor conservation, to participate in agreed conservation measures and to
limit the British fishing effort where this is required by the scientific evidence
or bv the need Io recoa.ize the oreferential ria-ts of a coastal State. But the
participation of lier hlajesty's Governnient in any nece\riiry c<inseri,ation
rdgime uould nrise from an agreement. Th15 15 the way in 5%hich iniernatii)n.iI
law requires the parties to the present dispute to proceed: by agreement and
nor by unilateral action; and by agreeing on conservation measures and a
quota system, and not by asserting a monopoly.
1 turn from that to the fourth possible around uoon which lceland might
seek to base her claim, that is the concept of whatis called the patrimoGal
sea. 1 trust that the Court will understand the difficulty in which 1am placed
at this iuncture bv the absence of an lcelandic Memorial. 1simoly cannot sav
uhcther the lcelandii daim is rclilly based upon the patrini,inial;ea cimcep;.
Whereas Icelandic legi,larion and mini.steriï) ~taienlentr h~vc cle:trlg invokcd
the continental shelf concept and the need for conservation-so that 1could
deal with those grounds with some confidence-there is nothing in the Ice-
landic legislation which specifically relates the lcelandic claim to this concept
of the oatrimonial sea. Onlv in the letter1 dated 11Januarv 1974addressed to
the ~égistrar by the lcelandic Foreign Minister does oie begin to find a
reference to the somewhat similar concept of an economic zone. Her Majesty's
Government do. however. acceot. as lhave said. that it is incumbent uoon
them to assist the Court,and iherefore 1 propose to deal with this posiible
ground for the sake of completeness. in the belief that the Court might wish
Io have il exarnined, however tenuous ils connection with the lcelandic claim
might be. It ismy submission that this concept of the patrimonial sealor
exclusive economic zone-cannot support the lcelandic claim.
The Court will be aware that this concept is one of very recent formulation.
For a clear exposition of icone has to look at the Montevideo Declaration of
May 1970.or the Declaration of Santo Domingo of June 1972. 1do no1think
there can be any doubt that declarations of this kind are addressed to the
forthcoming revision of the Law of the Sea, to be undertaken by the Third
United Nations Conference on the Law of the Sea.This view is reinforced by
the recommendation to African States which emerged from the Regional
Seminar held at Yaounde in June 1972. These were phrased in terms of the
policy-l emphasize that word policy-which African States were urged to
uphold al the forthcomina Law of the Sea Conference. And similarlv. in the
. .
more recent Brrlororio,~ on rhr I.c.ci,ero/rlzr 1.0" ofrhc Se<),wlliISSUC~ from
the meeting of the Council of hlinisters of the OAU in May 1973(Ri.porr of'
rlzc Unir<,d harions Seu-Red Cornmirrrc for 1973. A 9021. Vul. II. n. 4). the
section on the "Exclusive Economic ione concept including' Exciusive
Fishery Zone" is part of a series of declarations of policy, directed towards
the issuesal the forthcoming Conference on the Law of the Sea, and plainly
de legeferendo.
More recently still, the Fourth Conference of Heads of State or Govern-
ments of Non-Ali~ned Countries which was held from 5 to 9 Seotember 1973.
adopted a resolut~on concerning the Law of the Sea. After noting in the pre:
amble "the need for further CO-ordination between Non-Aligned Countries ARGUMENT OF THE RT. HON. SAMUEL SILKIN 465
to ensure recognition of certain principles at the Conference on the Law of
the Sea", the resolution supported "the recognition of the rights of coastal
States in seasadjacent to their coÿsts ... within zones of national jurisdiction
not exceeding 200 miles ... for the purposes of exploiting natural resources
..." (UN doc. Al9330. o. 53). Clearlv the resolution soeaks of reconnition
as an aim, as something io be sought ai the forthcoming'~onference. -
1do no1 believe that the Court would wish me to embark upon a discussion
of the argumentsfor or against a revision of the law of the sea which mieht
adopt the concepts of the "patrimonial sea" or an "economic zone". ~h&e
remain inchoate concepts and there are many difierent proposals. Those are
matters for the re~resentatives of al1 the States concerned in the forthcoming
Conference and little purpose will be served by speculating upon what thé
outcome of their deliberations will be. 1 would merely say this: if the confe-
rence were to reach someagreementon. for examole. a convention embodvina
such a concept, that would clearly ha;e its impact Lpon the development of
the law and may establish a basis for the exercise of such jurisdiction in the
future. But soeculations of that kind cannot afiect the oresent case
The impo;tant point-and the only point relevant to the dispute before the
Court-is that, whether Iceland regards her claim asjustified by this concept
or not. it is a conceot de leae ferenda and not a oari of the established law.
Indeed, if one examines thëconcept in the light of the recognized soiircesof
internationallaw according Io Article 38 of the Statute, it could not be other-
wise. There is no treatv-certainlv not between the United Kinadom an-
Icîland-recognizing an). such leg~lconcept There 15no concordant. gencral
praciiie of States. backcd by any upittiujirrtrrhich reiiecis the recognition uf
this conceot as a rule of customari international law. On the contrarv. there
are at ihis'>iage diiïerent and teniaiive proposals by a numher of~iûiés a>io
whxi the Iiiu should be. irhen rev.sed sfier a proce55of negoiiaiion; and ihis
oossibly on a regional basis in sea areas Far removed from the region with
which the Court>s now concerned. And there is certainly noevideke of the
concept as a "general principle of law". Thus, we are inevitably forced to the
conclusion that. even iflceland were to seek 10rely on that concept, it cannot
afiord a legal basis for the lcelandic claim.
Itherefore come to the fifth and last possible basis for the Icelandic claim:
the doctrine of "permanent sovereignty over natural resources". This is a
doctrine somewhat related to the concept of the patrinionial sea, at least in
the minds of advocates of the latter. And much of what 1 have jus1 said
regarding the patrimonial sea applies equally to this doctrine. TheCourt wili
be aware that the linking of the doctrineofsovereignty over natural resources
to the matter of maritimejurisdiction is very recent indeed. It first occurred
at the General Assembly of the United Nations when on 18 December 1972
it adov.ed r~ ~ ~ ~~ ~ ~ ~ ~f the ~ ~ -v-~ ~enth Session.~--~-e has been a
repetition in subsequent resolutions of the Economic and Social Council and
in General Assembly resolution 3171 of 17 December 1973. However, the
delegations were perfectly well aware that they must not prejudge the decision
of the forthcoming Law of the SeaConference on the limits of national juris- .
diction. Thus, the lcelandic delegate in thedebatein the plenary of the General
Assembly of 17December 1973has said the following:
". . .it has been maintained that operative paragraph I prejudges the
outcome of the Law of the Sea Conference. The CO-soonsorscertainlv
have nothing of thai sort in mind and are indeel a11d~ii\ely involved in..
and inieresied in the \uccecc of. the forthcnmtng Law of the Sea Con- ARGUMENT OF THE RT. HON. SAMUEL SILKIN 467
substitute its own resolutions for the treaty as a source of law. Indeed, only a
moment's reflection will show how such an attempt would not only run
counter to Article 38 of the Statute but would also create havoc with the
constitutional procedures for ratification of treaties which most States have.
Member States of the United Nations and similar bodies do not intend their
resolutions Io be regarded as sources of general law and it does no service to
the causeof international law to retend that they are sa.
In summary, the position I submit is asfollows. In seeking to challenge the
established law and to exclude United Kingdom fishermen, the burden of
oroving that international law oermits Iceland's unilateral claim to a 50-mile
éxclusi;e fishery limit and reqkres its recognition by the United Kingdom
restsfirmly upon Iceland. None of the grounds ofjustification which might be
alle-ed-be the; the continental shelf doctrine. oreferential rights. a conser-
~31i0rI necd. the patrinionial sea or permanent sovcrcignty-alïnrd 3ny irue
justifirütion in intcrnïtionîl law. Thît conclus~onemerges inessapîbly from
an examination of the sources of international law.
There remains one final argument which 1feel in duty Io this Court bound
to explore. This is that, although not necessarily based upon any of the
arounds I have oreviouslv examined. there nevertheless exists a body of State
practice, similar to thaï which lceiand proposes to adopt. which must be
recognized as creating a new customary rule supporting Iceland's position.
1 would ern~hasize that this areurn.nt does resuire lceland to show that a
,>rr,cu.;ti>mar) rule has heencrc~ted. c<inirîry Icithe previoiis custoniary rule.
A\ the Court will hïw seen. Hcr Majesiy's Government has tried to set out.
for the assistanceof the Court, such State legislation or claims as are known
to Her Majesty's Government and might support Iceland's claiin to a
fisheriesjurisdiction in excessof 12 miles. This appears at paragraphs 245 to
256 of Our Memorial.
Any argument which lceland might adduce, based upon an allegation of
similar practice by other States is, inevitably. an argument that Iceland's own
practice conforms to customary international law. There is no alternative.
The sources of law are specified in Article 38 and the argument must be tested
in the light of those sources. The only one which is even remotely appropriate
is Article 38 (h)-"International custom, as evidence of a general practice
accepted as law".
The letter addressed to the Registrar of the Court by the lcelandic Minister
for Foreign Affairs, dated II January 1974,is in effect an argument that there
does exist sufficient evidence of a general practice accepted as law. Admit-
tedly, it does not use that phrase. But if the lcelandic Minister cannot cite
any treaty binding on Her Majesty's Government, nor any "general principle
of law", he must perforce be relying on the proposition that the lcelandic
claim is consistent with customary international law. As I have said, there is
no alternative.
Thus. the Court ~ust ~ook to the criteria which eovern the establishment
of ï ne;" r~le of cu<ti>inary intcrnïtionïl laa. 1 uo;ld emphasize thai. since
the lielandic cluni tojiirisdictiori is a cli.tllcnge ro the criahliihed Iawitdoes
require proof of a newrule. Any new rule must conform to certain established
criteria which are well known.
First, there must be a concordant practice by States: what Article 38 (6)
terms a "general practice". 1believe that, by practice, what is meant is actual
practice, the active assertion of a right or claim asopposed to a mereassertion
of a right inohsrrocto. A paper claim, a unilateral declaration or piece of
legislation which is no1 actually enforced against other States will no1 con-stitute actual practice. The letter from the Icelandic Foreign Minister does
not. with resoect. face uo to this difficultv. To say that a ~rooosal for.an
erclusive economic zone, tu hr: made ûta future <onference. enjoys ier) nide
support is no1 ai al1 the same thing as dcnionrtrating that there e~isls non a
-eneral oractice acce~ted as law. To eauate the two thinas -s to misconstrue
totally the nature of the practice required aç proof ofcustomary iniernational
law. The essenceof State practice is that itis aituûl condtict. involi,ing the
assertion of a riaht or claim. which is of a kind that other States may either
acquiesce in orirotest against. But how can other States protest against
proposals to be put before a forthcoming conference? They have no basis for
such a protest. States have every right to support whatever proposals seem
to them to be desirable. Correspondingly, such proposals cannot qualify as
State practice and the attempt 10 treat them as such no1 only destroys the
distinction between le+ /ara and /ex ferendo but wreaks havoc with al1 the
accepted notions of what is meant by a rule of customary international law.
Then there is the further question of how "general" the practice mus1 be.
Even assuming the practice iiactual, and not abstract; assuming also that it is
concordant or uniform, the question remains "How many States must sub-
scribe to it before it qualifies as a rule of general, customdry international
law?"
No-one would suggest that complete unanimity is required-for that would
give any one State a virtual veto over the development of new rules. But
equally no-one would suggest that a minority praciice would suffice-for that
would lead to a total breakdown of international law as a body of rules of
general application. Il would fragment under the impact of minority prac-
tices until there remained no law. universallv recoanized as such. and inter-
national law as we know il w~uld'virtuall~ disappear. What is required then,
is a practice so widely and generally observed that il can be said to represent
the practice of the international community asa whole, including those States
specially affected. 1remind the Court of what was stated, in the Norrli Sea
Conrinetiral Sheifcases:
'. . nvery widespreüd and represrntative participation in the convention
niight sufice of ~rseli. provtdeditinzluded thdi of States «hose intercris
weie specially affected. In the present case, however, ... the number of
ratifications and accessions so far secured is, though respectable, hardly
sufficient."(I.C.J.Reports 1969, p. 42.)
The Court may recall that. at that lime. the Convention had received 37
ratification\:yst ibisuas no1suiiicient 10enable tlic rule conta,nerl in Article
h to be repardçd a, a cuitomary rule. a rule ofgener.11application.
Again. it may he useful to recall the Court's Judament in the Analo-
~orwegihn ~ishériescase. The issue there was whether-the IO-mile rule-for
bays was a rule of customary international law.The United Kingdom adduced
evidence of ils adoption by a number of States: hy the United Kinndom her-
self, by Germany, rance Belgiurn, Denmark, the Netherlands, the United
States, Spain, Portugal and Uruguay. And, in addition, the United Kingdom
showed that, al the 1930 Hague Codification Conference, the majority of
States had favoured the IO-mile rule. (See Pleodings, Vol. 1, pp. 68-71.) In
reply, Norway cited exceptions to the IO-mile rule by Canada, Australia, the
United States, France, Tunisia, the USSR, Sweden, Portugal and Argentina:
a total of9 States. or 10includine Norwav herself. The Court concluded that
the IO-mile rule chuld not, therekre, as a rule of general application.
If 1 may recall the actual words used by the Court, they are as follows: AROUMENT OF THE RT. HON. SAMUEL SILKIN 469
". ..although the ten-mile rule has been adopted by certain States both
in their national law and in their treaties and conventions, and although
certain arbitral decisions have applied it as between these States. other
States have adopted a ditïerent limit. Consequently, the ten-mile rule
has not acquired the authority of a general rule of international law."
(I.C.J. Reports 1951, p. 131.)
Thus, to make an admittedly broad generalization, 37 States are no1
enouah to ~rovide the re~uisite eeneral ~ractice. and 10 mav be sufficient to
prevent it. 1say the generalization is broa-d because,obviousl;, it is not simply
a matter of counting heads. Much will depend upon the particular rule
alleged and the degree of involvement in the practice of the rule by the States
concerned. What is clear, however, is that the Court rightly demands a very
high degree of generality before it will accept that some practice has con-
stituted a new rule of customary international law. In the North Seri Conti-
ne,itolSIielfcases thecourt stated that ". .. State practice, including that of
States whose interests are specially atïected, should have been both extensive
and virtually uniform. . ."(I.C.J. Reports 1969, p. 43). The phrases "virtually
uniform" and "States whose interests are specially affectedmare, in my sub-
mission, both crucial and correct.
1turn now to the remaining criteria for the emergence of a new customary
rule. They can be dealt with briefly.
The second requirement for a new customary rule is that the practice must
becontinued over a considerable oeriod of time. 1would remind the Court of
what was stated on this point in the paragraph from which 1 havejust quoted
in the Norrh Sea Conrine~rrolShelfcases:
"Although the passageof only a short periodof time is not necessarily,
or of itself, a bar to the forniation of a new rule of customary law .. .an
indispensable requirement would be that within the period in question,
short though it might be, State practice . .. should have been both
extensive and virtually uniform ... and should moreover have occurred
in such a way as to show a general recognition that a rule of law or legal
obligation is involved." (1.C.J. Reports 1969, p.43.)
Whilst the Court was concerned with the question of the formation of a
new custom on the basis of a conventional rule, in my submission the position
is not dissimilar in the present case. AI1 1wish to add on the time element is
that, whilst the contemporary view may be to lessen the insistence upon a
long period of practice, it is evident that a repetition of conduct is required.
Oc~ ~i~nal or iso-~~ed~-cts will~~~~~-o.~ ~ ~
Thirdly, the practice must be based upon the necessary opit~iojuris, the
belief that it is required by or consistent with orevailing international law.
And, fourth, the practice must receive general aiquiexence by other
States. Or, 10 put it in other terins, it must not be opposed by the active pro-
test of other. interested States.
1 believe those four essentials of a new customarv rule of law correctIV
siaie ihe [au. II remains for us now 10examine ihe Siùie practice upon uhich
Iceland miphi scek io rel) 10 prove thdt 2 new rule ufci,sioniary inicrnaiional
law has evolved. ~ermittina a coastal State to claim exclusive fisheries uo to
a limitof 50 miles from heFbaselines.
The Court will appreciate why this practice has been summarized in a
somewhat tentative wav in oararrra~hs 245 to 248 of Our Memorial as being
an argument which lceland have put forward. We referred to the argu-
ment because we considered it right to do so. It is not, however, necessary470 FISHERIES JURISO~CTION
that Her Majesty's Government should urge it upon the Court. It is an area
in which it is difficult to show how far any particular claim has met with a
formal orotest bv other States. As Her Mai.-tv-s Government hasemohasized
at paragraph 246 of the Memorial, States are under no obligation to publish
the protests they make or receive. What we do know is that the lcelandic
claim has met with the most emphatic protests by interested States.
Subject to the limitations inherent in any attempt to summarize State
practice, it appears that even the construction most favourable to lceland
can oroduce a total of onlv 25 States. includine Iceland. which todav claim
excl"sive fisheries beyond i2 miles. The nvmber now ciaiming an exclusive
fishery zone of 12 miles or less is over 80. To the details given al paragraph
245 of our Memorial we mus1now add five further ~tatesr~akistan which~in
March 1973 claimed a fishery zone of50 miles; Tanzania, which on 24 August
1973claimed a territorial seaof 50 miles; Iran. with a claim to a fisheries zone
of 50 miles: the Malaeasv Reoublic with a claim to 50 miles' territorial
waters and a further lO6miles aca continental shelf; and the Somali Republic
with a claim to a territorial seaof 200 miles.
Her Maiestv's Government have reserved their ri~hts in resoect of each
of those claimi. Even if we were to assume that the 247ther tat téhasdclaims
identical to that of Iceland-which is not, in fact. the case-itis clear that a
minoritv-o.actice of this kind. and of so limited an aool..ation. could no1
conceivably qualify as a "geneial practice", as the "virtually uniform" prac-
fice which the Court regards as necessaryto support a new rule ofcustomary
international law. The law could no1countenance a situation in which some
25 Statescould virtually legislate for the rest of the world, so asto create new
law and confer upon themselves new legal rights, opposable to the existing
legal rights of the majority. About 148 States, including about 118 coastal
States, now form the international community.
When one says that international law rests essentially upon the consent of
States, il means that the minoritv cannot chanee the law so as to bind al1
States. Thur. once a rule is ettablishcd. bared Lpon a coninion consent. it
clinnot be for the mini~rity to change the rule. The Court's insistence upon a
Iiractrce uhich is "virttiall~untform" is.thercfi)rc. the onlv re3listic ivav of
Ïeconciling the growth of 'ew customary'rules withthe sove;eignty of ~taies.
1accept that many of the States which today claim 12 miles fishery juris-
diction or less have announced that they will support proposals for an eco-
nomic zone of 200 miles at the Law of the Sea Conference. But for many of
these States such support will be conditional upon agreement on a variety of
conditions and safeauards. It will. in short. be oart of what 1 miaht cal1 a
'.package deal". In iny subniis3tun thai doer no;ionvert one clein~nt in the
propused "pack3ge". naniely the cuncept of the econoiiiic nine or the liinit of
200 niiles. in10k.v loroat this lime. that is tu s3y. even berore the iiegotiators
hase gathcred iogeihrr. Such 3 i.ieiv ibould tend to nullily the wholc purpore
of the forthcom~ng ionference.
The Icclandic argunient mus1 fail on ihis xry first esential of custoni.
However, for the sake of completeness, 1 will, $ 1 may, make one or two
further, brief obsérvations which may assist the Court.
There is noreal evidence that thepractice of these25Statesis"concordant"
or uniform. Indeed. 1 cannot even assure the Court that it is al1 "oractice".
Some of thejurisdictional claims may well not beenforced at al1against other
States, or nationals of other States, so that their evidentiary value is highly
speculative. As to the need for uniformity, it is certainly true that there is no
uniformity as to limits. The zones claimed vary from 12 to 200 miles andboth unsound in law and unacceptable by reference to the sources of law
enumerated in Article 38of the Statute.
As indicated in the written Memorial, this negative conclusion does
warrant some examination of the role which this Court can play in the reso-
lution of disputes such as the present one. Indeed, upon examination, it
appears to Her Majesty's Government that the role of the Court is far from
negative.
Having rejected al1the grounds of legal justification which lceland might
advance-as the Court must surelv do accordina - to the oresent law-the
Court 1snoi, of course. free Io inno\,atc by finding completcl) new grounds of
jurtificiitian.no1 piirt of the existing liiu,. The Court ciinnot leji<lïte: thït
much is clear. Her Majesty's Government fully recognize that. amongst a
numher of States. there is dissatisfaction with the present state of the law.
Were that notso, there would be no need to contemplate a new Law of the Sea
Conference. However. the revision of the law is no1 a matter for this Court.
but for a oleniootent~irv conference -~ ~ ~ue course. It is not. 1submit. for the
~. ~ ~
Court 10seek io anticipate what future revision might be made. ~emben of
the Court will be well aware of the difficulties involved in the task ofcomoro-
mise and protracted negotiation which will be essential before agreement u.pon
any revision can be reached.
can easily see that the Court helps most by
Indeed, upon reflection, one
clarifvinr! what is the existine law. In this wav. the Court lends the weieht of
ils authority to the positionadopted by the Genera~Assembly, namel; that
the revision of the law is a matter for the forthcoming Conference.
In what 1 have said so far, 1 have been addressi& argument to the sub-
missions contained in subparagraphs (a), (b) and (c) of paragraph 319 of
the Memorial.
1 have alreadv referred to suboaraeraoh Id): that was the submission in
which we asked-the Court to deciare Thai 1céia"dwas under an obligation to
make compensation 10 the United Kingdom. As 1have already explained to
the Court,in deference to the happierrelations now prevailing between the
two countries, we have decided to withdraw that submission.
1 now came 10 suhparagraph (e) of paragraph 319 and. if the Court
permits me, 1will read that in full:
". .. that, to the extent that a need is asserted on conservation
grounds, supported by properly attested scientific evidence, for the
introduction of restrictions on Rshing activities in the said area of the
high seas,lceland and the United Kingdom are under a duty to examine
together in good faith. either bilaterally or together with other interested
States and either by new arrangements or through already existing
machinery for international collaboration in these matters such as the
North-East Atlantic Fisheries Commission. the existence and extent of
that need and similarly to negotiate for the establishment of such a
rigime for the fisheries of the area as, havingdue regard to the interests
of other States, will ensure for lceland, in respect of any such restrictions
that are shown to be needed as aforesaid, a preferential position con-
sistent with ils position as a State specially dependent on those fisheries
and as will also ensure for the United Kinadom a nosition consistent
with ils traditional interest and acquired rights in and current depen-
dency on those fisheries."
By this submission Her Majesty's Government recognizes the role and
importance of equitable principles in the solution of a problem of the kind ARGUMENT OF THE RT. HON. SAMUEL SlLKlN 473
now before the Court, where the resources of the sea are the subject-matter
of the dispute and where the Court has a constructive function to perform.
Her Majesty's Government in submission do not, of course, ask the Court to
act in anv legislative caoacitv or to act ex aeauo er bono. What thev do is to
ask the court to apply équitable principles tgthe issueswhich as iihas done
on a previous occasion. 1refer to the North Sea Continenral Shel/cases, where
the court said: ". ..it is not a question of applying equity simply as a matter
of abstract justice, but of applying a rule of law which itself requires the
application of equitable principles ..." (I.C.J. Reporrs 1969, p. 47). While
not disposed to apply "equity simply as a matter of abstract justice", the
Court did however clearly indicate in those cases that the need to apply
equitable principles had its foundation in". ..very general precepts ofjustice
andgood faith . . ."(I.C.J. Reporrs 1969. p. 46.)
Nor need 1 remind the Court of the words of one of the best known mem-
bers of the tribunal which immediately preceded it in this building. It was
Judee Manlev Hudson who said: "What are . . .known as ~rinci~les of
equity hsvc long bccn conridercd to consiitute a part of internationdlIdu, .."
ïnd again ". undcr Article 3Xof the Statute, if iiot indepcndently of that
~rticlé, the Court has some freedom to consider principles~of equity as part
of the international law which it must apply" (The Diversion O/ Warer /rom
The Meuse case, P.C.I.J., Series AIE,No. 70, pp.76 and 77).
In relation to the oresent case. there are. in mv submission. three relevant
rules of law. First, the Parties are under an obligation to negotiate in good
faith. Given a dispute of the present kind. this obligation is paramount. As
we have shown in~our ~emorial, the whole pattern of State practice in cases
where a conservation need is established and the interests of two or more
States are involved is to regulate theexploitation of the resource by common
agreement. This is the manner in which al1the objections to unilateral action
can be met. There can be no criticism that the Parties are pre-judging the
legislative role of a plenipotentiary conference, for they proceed by agreement
and without oreiudice to anv general rule of obliga-ion. There can be no
criticirni ainied3.1rhc Court l'ha;11has surp.isred itjudicial function. for the
Court rli>esrio riiore than rïiiiind the Pïrticr ore-c.\isttng ohligdtion v,hlch
operates automatically when disagreement over a common~esource arises.
This obligation is not difficult to fulfil in the present case. The machinery
exists. The North-East Atlantic Fisheries Commission is already in being.
ca~able of ascertainine the facts and of indicatine. as an exDert bodv. what
measuresof conservatron or catch limitation migcbe needed. Her ~ajesty's
Government stands ready to embody in an agreement with lceland whatever
measures miaht be recommended on an obiective scientific basis.
Indeed, the Parties have already reafhed an interim agreement. Her
Majesty's Government seeno reason why, on the basisofequitable principles
such as 1shall refer to shortly, the Parties should not proceed to an agreement
which.would fully and finally resolve this dispute. A final agreement would,
of course, difier materially from the interim agreement, but the point which
1wish toem~hisize at this iunctureis that the oath to a solutionofthisdis~ute
lies through agreement aid that leads me to'the second basic rule. ~hat is,
that once there exists adequate proof of a conservation need, the Parties are
under a dutv to reach aeieement uoon a conservation rkime. Their agree-
ment, whether bilateral or multilatéral, must embody eiuitable princ$les.
1cannot emphasize too strongly that it is the proof of the scientific need for
conservation which transforms the relationships between the interested
States and enjoins the application of equitable principles. The reason is clear.If we presuppose a resource which is res commii,iis, and under-exploited. the
principle of freedom of fishing of course means exactly what itsays.There is
no reason for restrictions on fishing effort on anybody's Dart. But once that
situation changes and the common iesource is in danger oiover-exploitation,
then the common interest demands ils conservation. Freedom of fishing can
no longer be absolute and each State must. in equity, have regard to the
interests of other States. That is~ ~e whole b~s~s ~ ~the North-East Atlantic
~isheriesconventionof 1959to which both lceland and the United Kingdom
are parties. That Convention in the preamble contains the following resital:
"The States Parties to this Convention.
Desiring to ensure the conservation of the fish stocks and the rational
exploitation of the fisheries of the North-East Atlantic Ocedn and ad-
jacent waters, which are of common concern to them." (Application,
Annex F, p. 17,supra.)
And there, at the end of the quotation, you have the clear proposition that,
given a conservation need, the matter is one of cornmon concern, not for
unilateral action but for common action and. inevitably. on the basis that
each party muri have regard to the intereits of the oiher pdriiep. Article 2of
the High SeasConvention of 19SR IS IOprecisely the sanie elTeci. Having set
out the four basic freedoms. includin~ freedom of fishing. itconcludes by
siating: "[these freedoms] . .shall he exercised by al1States wiih redsonîble
regard to ihe intercsis of oihcr States in their ekercise of the freedoni of the
high seas" (Memorial. D. 331, ssora),
in i very re~1sense.,he freedoni oi fishing becuniescodpled wiih a duiy tu
exercire ihat frcedom in s~cha manner ihat the rightr id other States are nul
injured. The conceDt of reasonable regard to the interests of others im~orts
the necessity Io pr<;dure a jus1 and cq;iiable apportionmeni of the reso"rce.
Certainly ihere can be no edsy or autoinaiic formula for ihat. but State pra.'.
ticc dors indicate factors Iikelv io oraducc a i~st and equiiable resiill. Hrr
Majesty's Government accept ihat ihere is noilosed cat&ory of the factors
or considerations relevant to producing a just and equitable result. It is
perhaps al this juncture that the Parties can benefit most of al1 from the
assistance of the Court. As suggested at paragraph 306 of the Memorial.
certain factors seem evidently relevant. Their importance is such that, with
the permission of the Court, 1should like to read them verbarim:
"(i) The special position of lceland as a State dependent on coastal
fisheries in thesenseof the Resolution on Special Situations relating
to Coastal Fisheries adopted al the 1958Geneva Conference.
(ii) The need to afford to lceland such preferential share of the total
catch as would be equitable, taking into account the economic
dependenceof al1other States interested in the fisheries.
(iii) ~he faci that Iceland ha. full opportunity for participating in the
manasement of the resoiirceq in accurJ3ncc u,iih tlic provisions of
the Sorth.Eart Atlantic Fisheries Convention of 1959.
(iv) The need to take account of the established interests and acquired
rights of other States fishing in the area, with due weight being paid
to the length of time for which those interests have been maintained
and those rights enjoyed and the economic implications of any
change in them for the communities whose livelihood may depend
upon them.
(v) The need to resolve disputes within the framework of established ARGUMENT OF THE RT. HON. SAMUEL SlLKlN 475
machinery, including that of the North-East Atlantic Fisheries
Convention of 1959, or by reference to arbitration or judicial settle-
ment, ratherthan by unilateral action.
(vi) The needto take account of al1 relevant principles of international
law which are of general application and which relate to the con-
servation of fishery resources, to preferential rights and to respon-
sibilities for good management."
The Court will seethat the first three of those factors are desig-ed sveci-
lically to produce an cqiiiiable and just rcjulr for Ireland. Iceland'\ entitlemçnt
ti)a 5pecid positlon 2s an c~onomically dependent coasial State. her entiile-
ment to a preferential share and her opportunity to participate in the manage-
ment of the resources can be recognized and given full weight.
But, correspondingly. equity would demand that the established, acquired
riahts of United Kinadom fishermen must also be recoanized. This is the
importance of the fouFth factor. The United Kingdom fishermen are not new-
corners to these resources. They have fished there as a matter of full legal
riaht for centuries. and their economic devendence uvon them is iust as real.
-~he preservation of existing rights is nonovelty, bit is established practice
in relation to high seasfisheries. If one examines the very many conservation
agreements to which reference is made at paragraphs 270 to 274 of the Me-
morial, it is evident that they envisagearrangements which, whilst recognizing
the special needs of coastal States. equally take account of and protect the
traditional rights of other fishing States, striking an equitable balance
between the two.
Indeed, even where coastal States have extended their exclusive fishing
zones up to 12miles, the practice followed by most States has been to respect
any traditional fishing rights acquired by foreign fishermen. Thus, one finds
this is done in the legislation of many countries, such as that of Canada in
1970. the United States in 1966. Soain in 1967. Jaoan in 1967. Australiain
1967,and the various European haies parties tothe'1964 European Fisheries
Convention. The same pattern emerges in the very many bilateral treaties
concluded bv States which have oroceeded in this wav. It is a practice which
reflects the Eoncern of the overhhelming majority of States at the Geneva
Conference of 1958and that of 1960 to preserve the so-called historic rights
of non-coastal States. There is reason to believe that al1 rights in a resource
regarded hitherto as res commenis are protected in this way. If 1 may give an
analogous example: Article 5 (2) of the Convention on the Territorial Sea
and the Contiauous Zone of 1958. in Dermittin~ a change to a svstem of
siraight bascliics, required the coasial siales Io reiognile Ihe prçservation of
righis of innocent pasrage in are45of \"lier which. as a result of the change.
becanie iniernal !irateri raiher th;in territorial ir,aters.Thus. this fourth Iacior
, is wholly in accord with the established law and practice. The fifth and sixth
factors emphasize the need to resolve difficulties within the established
framework of the NEAFC Convention of 1959, rather than by unilateral
action. and to take heed of the general context of international law within
which al1States must operate. The law may well change over the years. The
parties would be required as a matter of equity and common prudence to
take note of such changes.
The third. and last, basic rule is that equity demands that the parties
recognize that the resource in question is res commrotis.'Both parties have
obligations towards the international community as a whole. They do not
have absolute freedom to agree upon a pattern of exploitation which wouldlead to the eventual annihilation of the fish.stocks. They must, in short,
accept a responsibility to deal with these resources as part of the common
heritage of al1 mankind.
Her Majesty's Government believe that, by the exercise of a positive role in
setting out the obligations incumbent upon the parties in reaching a just and
equitable result, this Court can make an important contribution to the
settlement of this dispute. As CheCourt will see, this is in essence, what the
final submission of Her Majesty's Government amounts to. It is complemen-
tary to the other three remaining submissions.
Mr. President. 1 have now presented the detailed oral arguments of Her
Maiestv's Government on the issues which arise in this case. The Agent for
theUnited Kingdom will transmit to the Registrar a written statement of the
submissions. These submissions are as follows:
(a) that the claim by Iceland to be entitled to a zone of exclusive fisheries
jurisdiction extending 50 nautical miles from baselines around the Coast
of lceland is withoutfoundation in international law and is invalid:
(6) that. as against the United Kingdom, lceland is no1 entitled unilaterally
to assert an exclusive fisheries jurisdictionbeyond the limits agreed 10in
the Exchanee of Notes of 1961:
(c) that ~ce~andis not entitled unilaterally to exclude British fishing vessels
from the area of the high seasbeyond the limits agreed to in the Exchange
of Notes of 1961or unilaterally to imposerestrictions on the activities of
such vesselsin that area;
(d) that 10 the extent that a need is asserted on conservation grounds,
suo~orted bv ~rooerlv attested scientific evidence. for the introduction of
re;&iciions on fishini aciivities in the said area of ihc hi~h seas, lieland
and the Uniied Kingdoiii are under a Juiy tu examine iogeiher in good
faith (eiiher bilaicr;ilor io~ciher uiih oihcr intcrcsred Siatcs and cithcr
by new arrangements or through already exigiing machincry for inter-
national ci>llaboration in these matters such as the Nurih-Fast Ailantic
Fisheries Commission) the existence and extent of that need and. simi-
larly, to negotiate foi the establishment of such a régime for the fisheries
of the area as, having due regard to the interests of other States, will
ensure for Iceland. in resDect of anr such restrictions that are shown to
be neededas oforesaid. a prefcrentiil posiiion conçisieni uiih its po,iiion
as a State spccially dependeni on those fishcries and as aiIl xlso ensure
for the Uniied Kinadorn 3 ooiiiion consisieni rriih iii iradirional intercst
and acquired rights-in and current dependency on those fisheries.
Those are the submissions of the United Kingdom which 1 make. on its
behalf, in this case. 1 would like, if 1 may. to thank you, Mr. President and
Members of the Court, for the very patient hearing which you have given me.
As 1think you may he aware, urgent alïairs ofState unhappily require me 10
return to London laler today but the Agent will, of course, remain at the
disposition of the Court, together with counsel, and as1believe that the Court
would prefer that the answers to its questions-and any further questions
which it may wish to put-should he given orally, counsel will be available
togive thaseanswersatadate and lime which will beconvenient to thecourt. QUESTION SY MEMBER SF THECOURT
QUESTIONS BY JUDGES PETRÉN AND SIR HUMPHREY WA1,DOCK
The PRESIDENT: In addition ta the questions put this morning, some
other questions by Members of the Court will be put ta the Agent of the
United Kingdom now. It is Judge Petren whom 1 will ask Io kindly address
his question.
Judge PETREN M:y question will be the following one: is if the opinion
of Her Majesty's Government that the interim agreement of 13 November
1973 definitively regulated the relations of the two Parties, so far as the
fisheries in question were concerned, for the two years covered by .that
agreement. Le.. for the ~eriod from 13Novernber 1973to 13November 1975.
or would iiin the opinion of Her Majesty's Government be possible for the
Court now ta replace that regulation with another?
Judge Sir Humphrey WALDOCK: Would counsel for the Applicant
kindly assist the Court by specifying precisely the consensus that they main-
tain appeared in 1960 at the Second United Nations Conference on the Law
of the Sea and, rnanifested in practice, becarnea general rule? Was it (a) the
joint United States-Canadian proposal for a 6-mile territorial seaand 6-mile
exclusive fisheries, subject to a phasing-out period; or (b) that proposal as
amended by Brazil, Cuba and Uruguay; or (c) the 12-mile exclusive fishery
lirnit allowed by the joint United States-Canadian proposal and inherent in
the minority proposal for a 12-mile territorialsea; or (d) some other prin-
ci~le or understandine?
'second question: mould counsel for the Applicant kindly specify what in
their view is the legal basis of the concept of ~referentiül rights or preferential
~osition in the allocation of catch auotas which the ~nited~in~dom amears
io recognize in its ~emonalon the Merits. 1sthe 1958 resolut&n on ~iecial
Situations Relating to Coastal Fisheries now regarded by the United King-
dom asexoressiveof a rule o~~ ~w. or does it c~ ~~der 1hi;conceot essentialiv
as a matter of equity?
Third question: Will counsel for the Applicant kindly give the Court sanie
further indication as Io what. in their view. the conceot of a coastal State's
preferenti<il r:ghts or preferentlal positfon cnt.iils in rcl:ition to fu, ihc &encra1
right Io frccdoni of lishtnb: nienii,incd in ,\rt2 of the Cienev~iCi~ii\ention
on the Cligh Seasand iII,the ioncepi of hirtoric or trditiorulîirhing rights?
Fourth question: Leading sounscl for ihc ,\pplicant h3s rcfcrrçd 10 the
rccent niiiltilaterîagrcciiicnt cimcerning the Faroes as aii iIlu,Iratioof an
appropriate application of the concept ofthe preferential rights or preferential
position of a coastal State in a special situation. Will counselease indicate:
(a) whether and to what extent in that agreement the concept of historic or
traditionalfishing rights was also applied;
(b) more generally, to what extent the concepts of preferential rights, or
preferential ~osition of a coastal State. and of historic or trdditional
iights, have ieceived application or been discussed in bodies operating
under the North-East and North-West Atlantic Fisheries Conventions,
or in connection with any other Atlantic Fisheries agreements such as
that between Norway, the Soviet Union and the United Kingdom con-
cerning Arctic Cod.478 FISHERIES JURISDICTION
Fifth and final question: Will counsel for the Applicant kindly indicate
whether they draw any distinction between (a) historic or traditional fishing
riahts asa basis for the ohasina-out arranaements connected with the 12-mile
ex-clusivefisheries zone;and (6) those rights as a basis for determining catch
quotas outside that zone?
The PRESIDENT: 1understand some further questions 1will be addressed
to the Agent of the United Kingdom tomorrow in writing, and they will
probably be forwarded to him in the course of tomorrow.
Now we are at the close of today's hearing, 1 wish to thank the Agent of
the United Kingdom and the Attorney-General for the assistance they have
aranted the Court in this matter. A number of auestions. as you have noticed,
iave been put by Members of the Court this morning and this afternoon, and
some will be addressed to the Agent tomorrow. The Court will therefore hold
a further sittina to hear the reolies to be eiven on behalf of the United King-
dom. Subject 6 that, and on ihe usual u-nderstanding that the Agent of the
United Kingdom will remain at the disposal of the Court for any further in-
formation it may require, L declare the hearing closed. The date for any
further hearing for the replies to the questions put or to be put by Members
of the Court will be announced shortly.
The Corrrrrose at 4.55 p.m.
--
1 See pp. 505,507,in/raand II, p. 473 ARGUMENT OF MR. SLYNN
SIXTH PUBLIC SITTING (29 111 74,10 am.)
Presetrt:[Seesitting of25 11174.1
ARGUMENT OF MR. SLYNN
COUNSEL FOR THE GOVERNMEN TF THE UNITEDKINGDOM
The PRESIDENT: The Court meets this morning in the FisheriesJerisdic-
rion case of the United Kingdom against the Republic of Iceland in order to
afford the Agent of the ~nited Kingdom the opportunity to reply to a series
of questions put by Members of the Court.
Mr. ANDERSON: Mr. President, Members of the Court, on 25 March a
number of questions were asked of the United Kingdom in this case. These
questions have been very carefully considered and we are grateful to the
Court for granting us the lime which has elapsed since25 March in orddr to
prepare Our answers. ln the unavoidable absence in London on public
business of the Attorney-General, with the leave of the Court 1will üsk Mr.
Gordon Slynn, Junior Counsel to the Treasury, to give the United Kingdom's
answers ta the Court's questions.
Mr. SLYNN: Mr. President, itseemsto me, and ta thase who appear with
me who have in their various specializations contributed greatly to the
preparation of the answers ta these questions, that the most helpful course
would be 10take the questions in turn, as they were asked by Members of the
Court, and to deal with them, rather than to seek to group them together in
so far as there is a relation between some of the questions. To theextent that
any material given in one answer is relevant also to a later answer. 1 shall
incorporate it by reference rather than by repetition, as 1 anticipate that the
Court would prefer.
1 begin, therefore, Mr. President, if 1 may, with the questions put to Her
Maiestv's Government bv Judee Jiménezde Arechaaa on 25 March.
~he first of those que;tions,thetext of which appears at page 451. supra,
refers to the concept of preîerential fishing rights of States in a special situa-
tion and asks the~pplicant to examine the applicability to the present caseof
the concept of preferential rights, together with the procedure for imple-
menting them, as they were defined in the amendment by Brazil, Cuba and
Uruguay which was incorporated in the final proposal which nearly secured
a two-thirds majority at the 1960Conference.
Mr. President, it would. 1 think, be of most assistance to the Court, in
answerina this auestion. ifI be.in b. statinr what we understand ta be the
baskground of that Special Situlitionr resoluïion of 1958. nnd of the amend-
ment proposcd hy the three Pouers in 1960. and if I thcn turn10 eidmine the
applicabilityof the conceot of ureferential riehts and the procedure for im-
piementing~them to which the question refer,
As is set out in pardgraphs IX7to 190 of the United Kingdom Memorial,
the resolution on Special Situations Relating to Coastal Fisheries, adopted by
the United Nations Conference on the Law of the Sea at Geneva in 1958,
arose in the context of discussions concerning the special interest of thecoastal State. As Her Majesty's Government sees il. according to classical
international law the onlv States which were regarded as havinn an interest in
fishing in a particular area of the high seas wëre those tat tewho actually
fished there. Under this law such States-those who actually fished there-
were entitled to exercise this freedom subiect onlv to the reauirement. which
is stated i" the declaratory rule contained in Article2 of thi High SeasCon-
vention concluded at Geneva on 29 April 1958, that they must do so "with
reasonable regard 10 the interests of~other States in their exercise of the
freedom of the high seas". They, in their turn, were of course entitled to
expect similar treatment from other Statesexercising their freedoms of the sea,
whether of navigation or fishinr! or anv other recoenized freedom. Coastal
States which didnot fish in a particular area of the hkh seas,even if that area
was adjacent 10 their own territorial sea, were not regarded as having any
interest at al1in the maintenance of the productivity of the living resources in
such area, let alone a special interest.
Mr. President. some 20 years ago, as Her Majesty's Government sees il,
this situation came increasinelv to be re~arded as unacceotable for two
separate although associated riasons. The first of these reas6ns is that there
was held to he insulficient protection against the over-fishing of the stocks,
especially in certain areas. ihe secondieason is that it was felt by certain
coastal States thar they ought to be regarded as having an interest in the
maintenance of the productivity of marine resources which were fairly close to
them, even though those resources were situated outside the limits of their
territorialsea.
This interest was said to be based on a number of factors. Sometimes it was
argued thaf althouah the coastal State was not vet in a Dosition to ex~loit
th; rcsources in que<tiun. itoughi io be able to dos0 ai a futiire iimî. and the
posibility of its doing so oughi not to be precluded hy excessiveexploitaiion
of the stock bv others in the meantime.~lternativelv. it was araued that
whilst the coasial State was in a position to exploit the-resources inquestion
to some extent, it could not do so as eiïectively as some nations which were
better equi~oed for the ouroose. Moreover. if was maintained that the
resource; inquestion weré of'more significance to the coastal State than to
other States, either becausethe economy of the coastal State as a whole was
dependent on the resources to an exceptional extent or, perhaps put al its
lowest, because the actual population living along the coastline was very
dependent upon those resources.
It is al1 these factors. as Her Maiestv's Government sees it. which lav
hchind the deci%ionof the lnternatiundl fechnical Conference un the ~oniei-
vatiim of the Living Kesoiirccs of the Sca held in Ronie in 1955to reconimend
that, in formulatingconservation programmes. account should be taken of the
special interest of the coastal State in maintaining the productivily of the
resources of the high seas which were contiguous to its Coast. Mr. Garcia
Amador of Cuba, who was then Vice-Chairman of the International Law
Commission and also Deputy Chairman of the Rome Conference, submitted
to the Commission a series of draft articles based on the work of the Rome
Conference. After makinn certain amendments. the Commission introduced
thesearticles into ils final repor1refer particularly to Articles 54and 55.
Article 54 of the report affirmed the special interest of the coastal State in
the maintenance of productivity of the living resources of the high seas
adiacent 10 its territoria- -.
Article 55 allowed the coastal State to introduce a conservation regirne
provided that international agreement had proved impossible to achieve and482 FISHERIES lURiSOlCTION
sition that "a coastal State has a special interest in the maintenance of the
productivity of the living resources in any area of the high seas adjacent to its
territorial sea".
MI. President, while a special interest may be held to some extent to imply
a priority or a preferential interest, the 1958 Conference was not willing to
proceed very far in that direction. It rejected in plenary a proposal by the
lcelandic delegate to the effect that:
"Where a people is overwhelmingly dependent upon its coastal fish-
eries for its IiIelihood or economic development and it becomes necessary
to limit the total catch of a stock or stocks of fish in areas adjacent to the
coastal fisheries zone, the coastal State shall have preferential rights
under such limitations to the extent rendered necessary by its dependence
on the fishery."
It may be further noted that this Icelandic proposal provided that in the
case of disagreement any interested State might set in motion the machinery
for arbitration to be established under the drooosed Convention on Fishine
and Conservation of the Living Resources o'fthe High Seas. -
Even so, the most that the Conference was prepared to do was to adopt a
resolution...roo.sed bv South Africa and amended bv Ecuador and Ireland.
\ihi~h in tiiiic hecüiiic the rçwliition on Spc~idl Siriiïii<in. rcl.sttgCo;isiil
Fi.heries, the te\t of tihiih resolurion ii 3et out in p3r:igraph 190 of tlic
\lcniorial <if ihc I:nitcd Kinsdom. 'The reroluii<in rcconinicnd~ thlit there
should be recognition of "anipreferential requirements of the coastal State
resulting from its dependence upon the fishery concerned while having
regard to the interests of other States".
It is to be noted that this recognition of preferential requirements is limited
to the situation where "for the purpose of conservation it becomes necessary
to limit the total catch of a stock or stocks of fish in an area of the high seas
adjacent to the territorial sea of a coastal State". It was to be the subject of
agreed measures; and, for the settlement of any disagreement where agreed
measures were not arrived at, appropriate conciliation and arbitral procedures
were to be established.
If 1may now revert to the three-Power amendment of 1960, the delegate of
Cuba, who was in fact Mr. Garcia Amador who had been resoonsible for
giving legal form to the recommendations of the internation aechnical
Conference held in Rome in 1955, explained that the purpose of the amend-
ment put forward was to "confirm Üreferential fishine riehts ex~licitlv and
unequ~vocally". But these preferential rights would only becomé ope'ative,
to use his own words, "if it should become necessaryn-ifit should become
necessary-"to reduce intensive fishing in order to maintain or restore the
optimum sustainable yield from that stock or those stocks". He went on:
"in the absence of the circumsfances described the coastal State could not
claim preferential rights; indeed, in that case the coastal State would mani-
festly not need to claim preferential rights." "Nor", he said, "could'it be
argued that the rights to be conferred were being conferred gratuitously and
unjustifiably, and might be exercised or claimed for purposes incompatible
with their true purpose."
The delegate of Cuba went on to enplain that a safeguard against abuse lay
in the provision for compulsory arbitration according to scientificcriteria.
Equally, however, the amendment which was proposed was not harsh to
the coastal State since it substituted for what might be called the "over-
whelmingly dependent" test which had been proposed by lceland the less ARGUMENT OF MR. SLYNN 483
exacting test of whether the coastal State was "greatly dependent" on the
living resources concerned. And finallv. ,r. Amador. the deleeate of-Cu~ ~ ~
in slncurring u,iih a bicw uhich Iiad ülrcady heen exiressed by the Jelegaie
of Bralil. Mr. Gilbcrto Amsdo, said, in Jrawing attention to "thc ~irnili~Jnt
progress achieved within so short a lime by lie idea and principlei of the
interests and special rights of coastal States with regard to the conservation
and exploitation of resources of the sea-hardly five years previously, at the
International Technical Conference on the Conservation of the Living Re-
sources of the Sea, held at Rome in 1955, the very notion of the special
interest of coastal States had not beenconsidered compatible with the concept
then held of freedom of fishine--tha.l ~.the recoe-~tio~ of oreferentia~ ~ishine-
rights in a form hoth effective and equitable, as formulated in the amend-
ments, should be the ne.xtsteDforward to be taken bv the Conference" (tenth
plenary meeting).
Mr. .President, having thus explained, 1 hope in suiiicient though not 100
great detail, the background bothof the Special Situations resolution of 1958
and of the three-Power amendment of 1960.1 now consider the effect of these
developments on the law of the seaand in particular their applicability to the
present case.
Since the Special Situations resolution was but a resolution, not having a
binding character, and since the three-Power amendment to which the
question refers only became part of a proposal which was itself rejected, it
might be said that the immediate and direct effect of these developmeiits was
no1 very great. Nor, it mus1 be accepted, was there a State practice in the
period shortly after the 1960 Conference in the matter of the preferential
requirements or preferential rights of the coastal State which can bear any
comparison with what occurred in relationto the recognition of the principle
of the 12-mile exclusive fishery limit as such.
On the other hand. Her Maiestv> .Gover-ment does not contend that the
concept of preferential requirements or preferential rights of the coastal
State became dormant in the period after 1960.Still lessthat it was moribund
during that period. Far fromit. Although it took longer to emerge than the
12-mile exclusive fishing limit. the concept of the special or preferential rights
of the coastal State has come to have and, in the view of Her M;ijesly's
Government. is now havine a sienificant dace in the~l~ ~ ~ the sea.
Further developments of this concept may of course emergeasa result of
the present case. Such develo~ments are also possible at the next Law of the
Sea Conference.
Even by now, in the view of Her Majesty's Governnient, it may be said
with confidence that it is accepted law that where a need for conservation can
bc scicniilically dcnionstraicd in an area of ihe high scas adjaccni Io lis
icrritorialsca ilnJ eiisnd~ng furthcr rhan the 12-nitle ehclusi\e fishcry liniii. a
coarral State ii not increly cntiilcd to in~iii that conservaiion measuresshould
be taken but it is also entitled to claim that in any scheme of limitation which
is worked out account should bc taken of the special needs of the coastal
State. These needs of the coastal State find their expression in the form of a
preferential share, it being understood that by "preferential" is not meant
necessarily either a majority share, or even a greater share than that of any
other single State, but rather a share that is greater than would be justified
merely by the historical performance of the coastal State; and 1 refer to
"historical performance" because that is the criterion which is principalfy
applicable when considering the position of the non-coastal States. Her
Majesty's Government, of course, recognizes that a coastal State will oftenhave considerable historical performance to show as well. In that event, it
will, in the view of Her Majesty's Government, usually be equitable that the
share to which the coastal State is entitled on the basis of historical oerfor-
mance hhduld be added to by a further alIo.-aiion on the ha.;i>of ils position
as a co~stal State. The rcbult niay \\,cl1br io :illou ihe ct~iistsl Statc an actual
maioritv share. but the "oreferential" oart of it is that part which was added
to the share derived fromhistorical pe;formance by virtue of its position quo
coastal State.
In the view of Her Maiestv's Government the three-Power amendment of
Bra7il. Cuba and urugua). plnyc.djus! as important a pari in thc dc\clopmcnt
of tlic Iau d\did the 1958Spccial Situations resolutii>n. Allhoiigh the resolii-
tion oointed the wav. the Ïhree-~ower amendment was considerablv more
speciiic than the res4;tion in at least three respects.
In the first place it indicated the criteria for establishing the need for con-
servation; in the second place it indicated the means of establishing the
existence of those criteria; and in the third place it indicated the machinery
for settling disputes which might arise.
In the answer which 1shall eive to the fourth question out to Her Maiestv's
Go\ernnient by Jiidge Sartlukphrey Waldock. i >hall be giving exdnlples~of
schemesthït have becn aorkcd out in practice snd 1shall attcnipt io shou the
principles underlying those schemes.
The Court will observe, 1 think, that although in those schemes the pro-
posais of the three-Power aniendment have not been followed in every detail,
yet those schemes have been arrived at in the spirit of the three-Power
proposals.
Mr. President, a final word in answer to this question, which Her Majesty's
Government is arateful for. it havina drawn attention to a number of matters
of importance.-~er ~ajesty's GGernment accepts that the concept of
preferential fishing rights of coastal States and the spirit of the proposals
embodied in the three-~ower amendment are applicable, are relevant, to the
solution of the present dispute.
If1may then turn ta the second question put to Her Majesty's Government
bv Judae Jimenez de Aréchaaa. the second auestion refers to the record of
d~scussionsleading up to the i961 Exchange o'f ~otes and to paragraph 229 of
the United Kingdom Memorial; the text of the question is again set out at
page 451, siwra, of the verbatim record,
in short.-the question asks whether the Applicant contends that in the
Exchange of Notes Icelandundertook the obligation not ta extend its fishery
limits beyond 12 miles or to do so only pursuant to a bilateral or multilateral
agreement or pursuant to a decision by this Court recognizing her right to do
so in international law.
Mr. President, it will be recalled that the first operative paragraph of the
1961Exchange of Notes, which is Annex A to the United Kingdom's Applica-
tion instituting proceedings, in effect embodied an agreement on a 12-mile
limit for the Icelandic fisherieszone. TheCourt will recall that it was couched
in the form: "The United Kingdoni Go\rrniiieni nill no longer ohjeci IO a
!?-mile fishery )one around Iceland . ."
The pen~lti~ii~te paragraph of the Exchange of Soies. \rhich the Court uill
ha\,c noied, alloued for the pi>sibility of home change in the riiles of general
internïtion~l lai? on the question of tishcry Iini~tsin the fur.ire. The origins of
ihat pçnultiniale paragrilph have been rekieued in detail in the Unitcd King-
dom hlemoriiil on Jurisdiction. heiivccn pïragraphs 23 and 43.
The conclusion ivhich Her Majesty's Government dreiv in ifs submission IO ARGUMENT OF MR. SLYNN 485
the Court at o.raa-.oh 43. and which it still contends is the correct intermeta-
tion ofthït iigreenient. is th21lieland rgreed not io chtcnd ils jurisdiciiuntil
such iinie as any ehtension beyond Iî-niiles uoulJ be periiiitied by Interna-
tional law. Whether at anv oarticular ooint in time. an extensionwould be
permitted by internationaliah would bédetermined by an agreement between
the parties or, if the parties were not in agreement, then by ajudgment of this
Court.
The third question (p. 451, siipra) refers ta the contention that a rule of
customary law exists fixing for lceland a maximum fisheries limit of 12 niiles.
and the question asks, what is the relevance of the eiTectof the proposals and
statements made on the subject of fisheries jurisdiction during the general
debate held in the Sea-bedCommittee and its Sub-Committee Llin preparation
for the Third Conference on the Law of the Sea?It is asked whether these
proposals and statements can be regarded as part of the evidence of the
current practice and opinion of States.
Mr. piesident. thesemtatements and orooosals were reviewed in some detail
, ~ ~ .~~~~ ~r~~. ~~
by ~rofessor Jaenicke in his oral argument before the Court on 28 March in
the Fislieries Jiirisdicrion case brought by the Federal Republic of Germany
against lceland, and accordingly It would perhaps noi assist the Court
further for me to repeat those matters again this morning. It perhaps would
suffice and assist most if 1 were merely to draw particular attention to a few
short paragraphs of the Report of the Committee for 1973 concerning the
question of fisheries.
The paragraphs in that report are many, and it is perhaps not entirely easy
toselect the few which would be of the greatest assistance becausethere is in
many of them material which is of value in answering the present point. 1will,
if1 may, select just a few and read those.
Paragraph 60, which is on page 52of the Report, reads asfollows:
"60. Concerning fisheries. statemenls were made on the right of
coastal States to establish an exclusive fisherv zone bevond their territo-
na1 sea. Accord~ng 10 ihose statemenis. the cuasial Siate woulJ cxcrci\e
sovcreign rights for the purpose of exploration, exploitaiion. conscrva-
tion and manacement of the livina resources. includina fisheries. in that
zone. and could adopt, froni lime-ta time, s"ch measires as thei might
deem appropriate. Reference was also made to the role of the appropriate
institut;ons of the coastal Sttite in the settlement of disoutes oer~aininp to
the delimitation of the exclusive fishery zone and thé formulation and
application of the régime therein. Views were expressed on the breadth
ofsuch an exclusive fishery zone. It was also stated that fishing operations
in such a zone should he conducted with due regard ta the interests of
other States in the other legitimate usesof the sea.
61. As for the managenient and conservation of living resources,
references were made to the international responsibilities of coastal
States in that respect, to the need for CO-operation betweencoastal States
and the appropriate regional and global organizations, to the right of
coastal States to establish regulations regarding fishing activities and
conservation programmes and to the need for such regulations and
programmes to be of a non-discriminatory character."
1 pass to paragraph 66:
"66. Statements and draft articles on the patrimonial seaor exclusive
economic zone referred to 12and 200 nautical miles respectively in con- 486 FISHERIES JURISDICTION
nexion with the maximum limits of the territorial seaand the patrimonial
sea or econoniic zone.
67. hlxiniuni liiiilts proposed regarding the territorirl3rd. a zone iif
naiional so\creigniy and jurisdiction, exclusii~eeconoiiiic 70nç or pairi-
monial sea, preferential zone beyond the territorial sea, economic sea-
bed area, national ocean spaceand fisheries zone ranged from 12 to 200
nautical miles."
And perhaps 1 might interpolate in this context that the word "ranged"
may beof sornesignificance.
"68. Statements were also made regarding coastal State jurisdiction
over sea-bed resources or fisheries based on geological. geomorpholo-
gical, economic or biological criteria. either alone or in combination
with distance limits.
69. On the other hand it was stated that extension of the exclusive
rights of the coastal States over the water column and its resources
beyond 12nautical miles was unjustified." (Doc. A19021,Vol. 1.)
Mr. President, lhere are many other passagesin the Report which set out the
kind of proposals and statements to which the question refers but plainly it
would be tedious to the Court for me to read that out in greater detail.
Perhaps 1 rnay, with respect. merely refer the Court to, in particular, para-
graphs 50 to 59 and 72 to 75 of that document.
The statements and proposals Io which the question refers are not, of
course, made in the course of negotiations, they are made in the context of
preliminary discussions prior to negotiations which will take place at the
later Law of the Sea Conference. Such discussions give to States an oppor-
tunity to indicate what in their view the law ought to be. The indications
.
given are, as the question describes thent. "proposals". Such proposals or
indications in themselvesare not evidence of existine State oractice. Thev are
no1 evidence of the existing law. They are not, as sich, of'any relevanh to,
nor, itis submitted, should they have any eRèct upon. the deterniination of
the issue before the Court in the oresent case. It isoerha~s hardlv necessarv
to add that such indications, such proposals, do ;of acquire rélevance or
efect by the fact that a number of States indicate that they will support those
proposals.
Mr. President, the Court may think that the position in this respect was
well illustrated by what the Attorney-General said in his oral argiiment
before the Court on 25 March about the possible arguments which lceland
might have put forward to the Court on the basis of the concept of the
patrimonial sea or the concept of an economic zone. These concepts are not
Part of the existin- law. The~,are inchoa~e. ~.ev .re tentative and thev take
niany Jifireni fornis. Thcy remain IO be negoiiatcJ ai the forthcotiiin< 1.a~
ilfthe Se3Coiifcrence. If the, xrecnibodied in sonie xr set un:isceri.i~neJforni
in a convention. then that convention may have its effect upon the law and
upon decisions of this Court in subsequent disputes if they arise. In the sub-
mission of Her Majesty's Government, it is prematiire to have regard to
them at this sta-e.
The \smc con\iderations iipply ti~ihis kinJ <ifproposal as apply Io rï3olu-
lions oi the Geiieral As<enihly and in pirri;iil.ito res<iliirion 3171$5hi~h iias
heforr. the Gencrlil ,\sseiiiblv on 17 1)eceniber IV73 1 nil,, ocrhaus remind
the Court of the extract frok the speech of thedelegate of'lcela~d, one of
the CO-sponsorsof the resolution, to which the Attorney-General referred and
which is setout at pages465 to 466, sripra,without actually reading it again. ARGUMENT OF MU. SLYNN
487
Mr. President, some of the statements to which the question refers may of
course go further than merely making proposals and they rnay contain claims
put forward by the delegate-for example, as to what is the area over which
the State he represents claims the right to exclusive fisheries. That kind of
statement rnay help the Court by throbing lighton the practice of a particular
State if that practice is doubtful or obscure. In answer to the question, so
much is accepted, but it is submitted that statements of this kind are not the
best evidence of the practice of the State. The best evidence is the actual
practice of the State itself as applied and enforced against other States or as
acquiesced in or accepted by other States.
What really matters in the view of Her Majesty's Government, and what
is contemplated by Article 38 (1) (b) of the Court's Statute when it refers to
"a general practice" is the actual practice, the actual assertion of a right or
claim as opposed to a mere declaration or assertion in a speech or on paper
which has not yet been put to the test. It is to that evidence, in the view and
submission of Her Majesty's Government, that the Court should have regard
in considering what the Attorney-General described as the "inescapable
question" whether there is a treaty or a eustom or a general principle of law
upon which lceland can base her claim.
It is submitted that the sta~e~ents and nrooosals referred to~do n~t orovide
C~~7 .~ ~
evidence of a concordant practice, or a practice extensively or uniformly
applied, or of a practice a~plied over a sufficient ~eriod of time or one receiv-
ine. the eeneralacauiescence of other States. ~~at~was acceoted. the .ourt. -~ ~
miy feec at the 19i8 and 1960 Conferences and at the European Fisheries
Conference in 1964.is of much areater weieht in showing what the law is than
staternents made in the cours; of the preliminary rheetings to which the
ouection referc
>- .~~-~~~
Moreover, Mr. President. even if it were right, as Her Majesty's Govern-
ment of course contends that it would not be right, for the Court to seek to
have regard to what the final outconie of the Law of the Sea Conference
might be, the range of proposals and statements made so Far niakes it int-
possible to forecast at this stage what will be the final outcome of that con-
ference.
In sumrnary in answer to this third auestion. Her Maiestv's Government
considers 1haÏ the proposals and statements ar'e respectivel; of no or little
relevance and have no or little evidentiary value to the Court in the solution
of the present dispute.
May 1. Mr. President, then turn to the other questions put 10Her Majesty's
Government.
The PRESIDENT: Before you doso may 1ask Judge Jimenez de Aréchaga
whether he wishes to pursue some of the issuesyou dealt with in his questions?
Judge JIMÉNEZ DE ARECHAGA: No thank you, Mr. President.
Mr. SLYNN: If 1 may then, Mr. President, turn to the questions put by
Judge Dillard, the tex1ofwhich appears at page451, snpro. The first question
refers to paragraph 319 of the United Kingdoni Memorial read in conjunc-
lion with paragraphs 300 to 318a. If asks whether the Applicant contends
that its first three submissions (a), (b) and (c) are so connected that il is
necessaryfor the Court to adjudicate on the first in order to adjudicate on the
second and third of those subn~issions. Perhaps it ivould be of assistance
before directly answering that if 1 indicate the distinctions between those
three subniissions (a), (b) and (cl as set out in the United Kingdom Memo-
rial at paragraph 319. Submission (a) corresponds exactly to the claim which lceland is making.
It has to be read in the linht of Article 59 of the Statute of the Court. which
provides that the decision of the Court has no binding force except between
the Parties and in respect of the particular case.
' The intention and purpose of submission (b) is to say that the limits
which were agreed to in the Exchange of Notes of 1961 correspond to the
limits now generally recognized in international law and that any unilateral
assertion of fisheries jurisdiction beyond those limits-whether it be out Io
50 miles or to any distance-would not in law be valid as against the United
Kingdom.
The third submission, submission (cl, is aimed rather at any action which
lceland rnight take against British fishing vessels in the sea area which is
beyond the limits agreed 10 in the Exchange of Nores of 1961,which would be
inconsistent with the character of the waters as high seasand would therefore
be contrary to international law. As an example of the type of action en-
visaged by submission (cJ, perhaps I might cite the interference with British
fishing vessels which are simply on passage through the area and are not
actually fishing there.
It follows when these three submissions are analysed in this way that (a),
(b) and (c) are not so connected that the second and third cannot stand with-
out the first, and in the view of Her Majesty's Government it is therefore open
to the Court to adjudicate on the second and the third of those submissions
without adjudicating upon the first, it bcing of course understood and accept-
ed that submissions (b) and (c) are based on general international law and
are of course not confined merely to theeiïect of the Exchange of Notes.
I turn then to thesecond question (p. 451, srrpro)put by Judge Dillard
which refers Io possible divergence of views as to the exclusive character of
Iceland's claimed extension of her fisheries jurisdiction. The question refers
to the Lcelandic Reaulations of 14 Julv 1972 and it asks whether the claim
açscrted by lcelandru excluri\e ,uriçdliiion is no! rurccptiblc of a narroivrr
nleaning ih.111 1.;usiiülly assi>ciatcdwiih ihc tcrin "erclusive". Thc qiicçiion
specifically asks whether Iceland's claim is seen by the Applicant Io be
"exclusive" in the absolute senseas defined, namely that lceland reservesthe
right to exclude al1fishing by foreign nationals in the extended areas except
as she miaht in her discretion oermit it. or whether the claim is not to exclude
al1fishingby foreign nationalsbut is mkly to regulate and institute measures
of control of such fishing, either because of Iceland's special situation as a
coastal State dependent on such fishine or in the interest of conservine the
living resources of thesea in the extendedareas. Put more broadly the qugtion
asks whether the Applicant contends that lceland claims not merely to
accommodate but rather to extinguish-therinhts -f UnitedKinndom - nationals
to fish in the extended areas.
Mr. President, I accept, as the qùestion postulates, that when a State claims
an exclusive fisheries zone, itis sometimes dificult to determine whether the
State is claiming either-
(a) the right tolally to prevent al1foreign nationalsfrom fishingin thezone;or
(b) the right Io exclude most foreign nationals from fishing in the zone, but
subject to the duty upon it to permit certain foreign nationals to con-
tinue to fish there; or
(cl the exclusive right not to exclude but to regulate al1fishing activities in
the zone, subject to its duty to permit some or perhaps al1 foreign
nationals to continue to fish there. ARGUMENT OF MU. SLYNN 489
Of these three possibilities,it is Our submission that in the absenceof clear
indication to the contrary. the presumption must be that it is the first one
which is intended, that is,ihe right to exclude al1foreigners. This presumption
arises partly from the very concept of an exclusive zone and from the natural
meanine.-of the words. It arises also more ~articularly from the fact that the
Uniied States-Cünadian proposal of 1960.to nhich thçcsncept of >neiclusive
fisherics 7.uncoutiidc the territorial se3cm he traced bîsk, e~prebsl) ~aid:
"A State is entitled to establish a fishing zone in the high seascon-
tiguous to its territorial sea extending to a maximum limit of twelve
nautical miles from the baseline from which the breadth of ifs territorial
sea is measured, in which it shall have the same rights in respect of
- fishing and the exploitation of the living resources of the seÿ as ithas in
its territorialea."
Itis beyond question that in its territorial sea the coastal State has exclusive
fishery rights in the senseof the first possibility, possibility (a), to which I
have referred.
The second of the three possibilities which 1 mentioned arises because a
coastal State, while proclainiing an exclusive fisheries zone in principle, may
recognize that itis under a legal duty to permit certain foreign nationals to go
on fishine there. This dutv mav be owed to the States from which the foreien
, . -
fishermen conie either becausethere is a treaty still in force or becauseunder
customary law that State has acauired the ria.t for its nationals to continue
fishing in-the zone in question.
The third possibility, possibility (c), which is that of the exclusive right of
the coastal State to regulate al1 fishing activities in the zone, whilst being
under a duty to permit either al1 or some foreign nationals to continue
fishing there, inay likewise arise either under treaty or asa result of customary
law. For examDle. in the North Atlaizric Coast Fïsherics case (Scott. Harrre
Corirr ~~.porrs.l910. p. 146) itu,asheld by the Pernianent Court oi (irbi~ra-
lion thiii Great Britain. whilç obligcJ under the Cunventiun of London to
ncrniit fiihina by iiihnhitanti of ihc Ilnitcd Sidies in ceriain areïs of Canadian
ierritorialwafers, was entitled exclusively to regulate fishing activities in that
zone. That is the treaty aspect. So far as customary law is concerned, Her
Majesty's Attorney-General, at page 460, srrpra, of his speech on Monday,
25 March, referred to the possibility of a "non-exclusive conservation zone"
being claimed by a coastal State. By that phrase he meant an exceptional
situation where a coastal State, having failed to obtain the necessary co-
operation from other States in the matter of conservation, might beentitled
to proclaim a zone in which, while not excluding foreigners, that State would
be able to insist that they should observe non-discriminatory regulations
concerning either catch limitation or perhaps some other measuresof conser-
vation.
Becauseof the difficulty of distinguishing between these types of exclusive
zone-and no douht other variations are possible and may perhaps already
have occurred to Members of the Court-it is necessary,in the view of Her
Majesty's Government, to proceed with considerable caution in examining
State practice in the qatter of exclusive zones. The Attorney-General made
this point at page 470, supra, and the Court will find in paragraph 247 of the
United Kingdom Memorial, asJudge Dillard has pointedout in the question,
that the ~nited Kingdom indicatedthat when a tat taccompanies ils claim
to an exclusive zone with an express power to grant permits to foreign
fishermen the daim may not be a "truly exclusive" claim Having said this, it is now necessary to examine once again the lcelandic
Reeulations of 14 Julv 1972. and oarticularly Articles 2 and 7 thereof. (See
ni e xto the ~nited-~ingdbm ~érnorial, p:384,'sripro.)
Article 2 of those Regulations Statessomewhat baldly:
''~iihin the fishery limits al1 fishing activities by foreign vesselsshall
be prohibited in accordance with the provisions of Law No. 33 of 19
June 1922.concerning Fishing inside the Fishery Limits."
So it has there the words "within the fishery limits al1 fishing activities by
foreian vesselsshallbe orohibited in accordance with" those provisions.
~rÏicle 7 stated: .
"These Regulations are promulgated in accordance with Law No. 44
of 5April 1948,concerning the Scientific Conservation of the Continental
Shelf Fisheries ... When these Regulations become eRective, Regula-
tions No. 3 of 11 March 1961,concerning the Fishery Limits off lceland
shall cease to be effective."
Article 2 of the 1948 Law, which is Annex 1 to the United Kingdom
Memorial, provided as follows:
"The rcgulsrions promulg;itrd iindcr Article I oi the prcseni Iaw
[that 1s. rcgiilarioniçsiabli<hing e\pliîitlybi~dnded conicr\ÿtli>n zoiies
uiihin the Iiniiis of the ioniincntalsheli of Iceland. u,hcrein al1 fishcrics
shÿll be suhjcct in Icel3ndii: rules and controll shall be çnroried only io
ihe exlent cornp3tible u,iih agreeiilenti niih othcr countries Io xhich
lceland is or may become a
Mr. President, Her Majesty's Government has no doubt that the Regula-
tions of 14 July 1972were intended to implement, and are being applied in a
rnanner designed ta ensure the implementation of, a zone of the first type,
that is to Say a zone in which lceland claims the right totally to prevent al1
foreign nationals from fishing in that zone.
It is of course true that in her law of 1948 Iceland referred to the pas-
sibilii) of hcr lisherics rcgiilatibeing "enfnrced only Io ihe eltent ~'olliP3-
iihle trith agrecmcnis ivith other couniries to uhich IcellindI< or inisy bcco~iie
a party."
One has also in the lcelandiccommentary on Article 2, which is to be found
in Annex I of the United Kingdom Memorial (p. 382, si~pm), a reference
which is made to two international agreements-the Anglo-Danish Conven-
tion of 1901 and the International Convention for the Regulaticn of the
Meshes of Fishing Nets and the Size Limits of Fish of 1937. Here il was
expressly stated:
"Should the provisions contained in this draft law appear to be in-
compatible with these agreements, they would not, of course, be applied
against the States signatories to the said agreements, as long as these
agreements remain in force."
Soon after enacting that law of 1948, Iceland set about terminating the
Anglo-Danish Convention.
Likewise, in 1972, Iceland made it quite clear thai with the coining into
force of her new regulations, the Exchange of Notes of II March 1961 be-
tween lceland and the United Kingdom and the Exchange of Notes of 19July
1961 between Iceland and the Federal Republic of Germany would be ter-
minated and that their provisions would no longer "constitute an obligation ARGUMENT OF MU. SLYNN 491
for Iceland". 1refer to the policy statement of the Government of lceland of
14 July 1971 (para. 10 of the United Kingdom Application); to the aide-
mémoire of the Government of Iceland of 31 August 1971, which is Annex 3
to the United Kingdom Memorial (p. 382, supra); the Resolution adopted by
the Althing on 15 February 1972, which is Annex 5 to the United Kingdom
Memorial (p. 382, supra); and to the aide-mémoire of the Government of
Iceland of 24 February 1972,.which is Annex 6 to the United Kingdom
Memorial (p. 383, supra).
As for the other international agreement mentioned in the commentary on
Article 2 of the lcelandic Law of 1948, namely the Fishing Nets and Size
Limits of Fish Convention of 1937,this has now been replaced by the North-
East Atlantic Fishery Convention of 1959.
As was pointed out by the Attorney-General in his speech on Monday, at
pages 450 and 454, sirpro, lceland has so far only been prepared to accept the
key recommendation under Article 7 (2) of the Convention-that is, the
recommendation under which it would have been oossible to introduce into
rhc lieland ;ire2 Jn iiitsrnxtionill)agrccd \y.iein fdr caich quot~s. subjc~t to
"the significani rcscrv3iion thai itshall no1apply to the 50-niilc ?on? aruund
lceland iisclf". Mr. Prcs!dcni.itiç difficuli ioconstrue ihts rescr\,aiio3s other
th.in an iiii~m;tiiun ihit ihc 50-iiiilc zois inicnded IO be a "truly c~~luri\c"
7onc. in ilic jcn,c of the firrt pi~icibility to irhicli I referrcd
The Governnient of lceland has freguently indicated ils willingness to enter
into negotiations with the Government of the United Kingdom and also
with the Governnient of the Federal Republic of Germany. For exainple, in
its aide-mémoire of 31 August 1971 (United Kingdom Memorial, Annex 3)
it suggested a meeting with representatives of the United Kingdom Govern-
ment "for the purpose of achieving a prdctical solution of the problems in-
volved". Again in its aide-mémoire of 24 February 1972 (United Kingdom
Memorial, Annex 6), lceland reiterated the hope that "the discussions now in
progress will as soon as possible lead to a practical solution of the problems
involved".
In fact. both before and after the introduction of the new regulations on
1 September 1972, there have been freauent, if interrupted, negotiations be-
tween the two Governments. rie~. -o t6 the conclusion of the interini aaree;
ment of 13 November 1973. But, ~r. President, the Icelandic ~overnment
has never given any indication that it accepts that the United Kingdom con-
tinues Io &iov anv rieht under international law to fish within the 50-mile
.. . -
zone. Il has not given any indication that any discussions were held because
Iceland was under any legal duty to negotiate. It is quite clear that such nego-
tiations as took olaci-and 1. if course. exclude entirelv from consideration
in this contehi n&<iiixtions u hich wcrc hel~ .;<>ICI)for thc piirpohe of arriving
ai an inlrriiii.igrccnic!ii un;c the Jiiputc had been rcferrcJ Io the Cuiiri acre
held purelv because. on the lcelandic side. in the view of Her Maiestv's
Governineni. iliias ilisuglit c\pcdicni IO hsld them. an.1 I rc~ii~ndthe Court
of Ihc qu~itati~ii I h.ti,c juit rcxl. '.for the pitrpoqe OC~~hic\ing a pra2ticaI
solution of the Droblems involved".
Mr. President, ir is only possible for Her Majesty's Government to construe
the intentions of the Government of lceland in the lighr of what thcy say and
what they do. 1refer in this content firstly to thestatement of Mr. Johannesson,
the Prime Minister of Iceland. at the meeting of the Nordic Council on
19 February 1972 (Appendix III to the Memorandum on Fisheries Jrrrisdic-
rion in Icelat~d (p. 49, sopro), reproduced as Enclosure 2 to Annex H of
the United Kingdoni Application (pp. 27-66, srrpra)). On page 50, supra,whenreferring to the United Kingdom and the Federal Republic of Germany,
he said this:
"At the same time we are engaged in discussions with the two nations
who have the ereatest interests in the Icelandic fisheries. Althouah we
cannot dgree th3t thcir ovcr-e~ploiiaiion of the Icel.indic fi5htng gr;unds
over 2 long wriod of time gives thcm d right 10 continue their acti\ ilies
in the area-we want to make an effort to seek a solution of the problems
which face their trawling industries because of the extension of the
The significant words in that statement are: "Although we cannot agree
that their over-exploitation of the Icelandic fisbing grounds over a long
period of time gives them a right 10continue their activities in the area." Ln
Our submission. it could hardly have been indicated more plainly that. in the
view of the lcelandic Government. while the United Kinedom and the
Federal Republic of Germany may have interesis in the 50-mil;: zone which it
might be expedient for the Government of lceland to seek to accommodate,
those Iwo oiher nations had no rights in respect of that zone.
1 turn secondly to a statement by Mr. Josepsson, the Minister of Fisheries
of Iceland. He was no lessexplicit than the Prime Minister of lceland when
speaking at the Ministerial Meeting of the North-East Atlantic Fisheries
Commission on 15 December 1971. He said this:
"We consider it paradoxical that vesselsof other nations should have
the right without licence to use their gear, as bottom trawl, on Our con-
tinental seabed. and we consider it unnatural that they should be able
without Our to prosecute fishing in the sea above Our con-
tinental shelf.In the matter offishingrights, we bslievetheonlyconceivable
wav.to o.event overfishing a.d secure a rational exploitation of the fish
siocks iifor co35tÿl Siatrs 10 h~i,c ï wide fi5hery jurisdiciion and IO be
capahle beyond di\putc of iiiïking rule\ necesrdry for the inshore
fiiheric?. Side b\ side tuth an cxtensi\e fishcrv iurisdi~tion. \XeconsiJer
'ineccssliry iha;the nations concerncd sho~ld.$$ork in soll~boraiion 2nd
consuliaiion on rules regarding lisherics out5ide the Iishery jurisdistions
of the respective countries, that is to say on the high seas .. . We Ice-
landers are ready to collabordte. But we emphasize that our collabora-
tion in making rules regarding fisheries in this area does not alter Our
fundamental opinion that each individual coastal State should have
sovereign rights over al1fisheries up to a reasonable and natural limit in
the area of its continental shelf." (Appendix V to the süme enclosure,
p. 55, slipru.)
Mr. President. in this oassaee.while there is. Iacceot. a hint that foreieners
may be permitted to fish'vnder Icelandic control in the exclusive fishing zone,
there is not the slightest suggestion that they have any right so to do. "Con-
sultation" and "collaboration". to which the statement refers. aooear to be
restricted to the area outside the exclusive zone. Moreover, the ;;ference to
"sovereign rights" over ail fisheries in the exclusive zone suggestsa zone that
is intended. in the terms of the auestion. to be "trulv exclusive". while it is no
less signifiiant that the ~iniste;, in defiance of generally acceited concepts,
seemsto be claiming that the waters ofthe exclusive zone, though they may be
outside the territorial sea, and also the waters above the continental shelf,
have lost the character of high seas.
Ifone looks at the actions of the Icelandic Government-its refusa1 to ARGUMENT OF MR. SLYNN 493
accept the Orders for interim measures of protection which were made by
this Court; its harassment of British trawlers, which now happily has ter-
minated asa result of the lnterim Agreement; and, despite frequent assertions
of the need for conservation, if one looks at its large trawler building pro-
gramme, which is referred to in paragraph 123 of the United Kingdom
Memorial-these actions hardly give grounds for confidence to foreign States
that the Government of lceland considers that their nationals have any right
to fish in the exclusive 50-mile zone, as well as its own.
It is perhaps a fair comment that if lceland had intended something less
than the first nossibilitv to which 1 have referred. she has had amole oooor-
. ..
tunity by woràs or deedsto make it clear. Mr. ~resident, it is quite plain that
she has not done so. For al1these reasons, and bearing in mind the experience
which thev have had in their néeotiati0ns with the ~overnment of Iceland.
Her ~ajeyty's Governmenthaveno doubtthat, in the terms of Judge ill lard's
question. lceland is claiming a fisheries zone that is exclusive in the absolute
; sense; and also that her clah contemplates not the accommodation but the
extinction of the rights of the nationals of the UnitedKingdom to fish in the
extrnded areas.
The PRESIDENT: Does Judge Dillard wish to pursue some of the issues
involved in these questions?
Judge DILLARD: No thank you, Mr. President.
The Corrrrodjoi<r,red/rom 11.24 IO11.45 o.m.
Mr. SLYNN: May I turn now Io the firsi queçtion asked by Jud~c Peirbn.
the tex1 of which appears ai page 477. supru. of the verbatim rcsord. Thar
0ucriii)n asks uhcther it 1sthe oninion Hcr \l3iesty's Governineni ihat
ihe interim agreement of 13 Novémber 1973 definiiively regulated the rela-
tions of the two Parties, so far as the fisheries in question were concerned. for
the two years covered by that Agreement-that is~forthe period 13November
1973 to 13 November 1975-and asked would it, in the opinion of Her
Majesty's Government, in the alternative, be possible for the Court now to
replace that iegulation with another.
Mr. President, the response of Her Majesty's Government to that question
is as follows: the interim agreement is a treaty in force between the two
Governments and accordingly is binding upon them in accordance with its
terms. It regulates the relations between the two Governments so Far as
British fishing is concerned in the areas shown on the map which is annexed
to the agreement.
The agreement is described as an interim agreement and paragraph 7
providcs that the agreement will run for two years from the present date,
that is Io Say, two years from 13November 1973.
The iudement of the Court in this case will state the rules of customarr
intcrnaiion-al 13w betuc&the Parties. dcfining iheir respective rights iinh
oblipiitions.Th31 judgmcnt u,ill be binding upon thc Parties in accordancc
uiih Ariisle94ofihcCharier of the Cniird Nations. Hoircver. in thc \icn of
Her Majesty's Government, that would not mean that the ju'dgment would
completely replace the inierim agreement with immediate effect in the rela-
tions of the Parties, because the Agreement would, as Her Majesty's Govern-
ment understands it, remain as a treaty in force. The Parties would be under
a duty fully to regulate their relations in accordance with the terms of the
judgment as soon as the interim agreement ceased to be in force, that is toSay, on 13 November 1975, or of course at such earlier date as the Parties
might agree.
In so far as the judgment may possibly deal with matters which are nor
covered in the interim agreement, in the understanding of Her Majesty's
Government thejudgment would have immediate eiTect.
The PRESIDENT: 1ask Judge Petrén whether he wishes to pursue some
of the issues involved in this question.
Ju~~c'PETRÉN: 1 thank the counsel for his explanation but 1 think il
leads me Io another question and that would be the following one: in
paragraph 297 of ils Memorial Her Majesty's Government expresses the
following view:
"11 is the submission of the Government of the United Kingdom that,
rather than take precipitate and unilateral action, lceland ought properly
to have awaited the outcome of the forthcoming United Nations Con-
ference on the Law of the Sea wher~~the issue~ of~the breadth of exclu-
sive fisheries zones, fishing and conservation of the living resources of the
high seas, including the question of the special rights of coastal States,
are the very issues beforethe conference."
Does learned counsel consider that it is quite compatible with this position
adopted in the Memorial now to seek of the Court a decision more or less
re~ulatinr! the matters in suestion for a future which will open on 14Novem-
ber 197$
Mr. SLYNN: Mr. President, 1wonder whether 1 might have the oppor-
tunity to consider that other question with those who appear with me on
behalf of Her Majesty's Government and look perhaps in a little more detail
al paragraph 297 of the Memorial before giving my answer. If Judge Petrén
would permit me to do that, 1would be grateful for that opportunity.
The PRESIDENT: You may answer at a later lime 1.
Mr. SLYNN: Perhaps 1could, then, turn to the first of the questions which
were put 10 Her Majesty's Government by Judge Sir Huniphrey Waldock,
and the text of these questions is also set out on page 477 and continues on
page 478, srmra.
The first of those questions is as follows:
"Would counsel for the Applicant kindly assist the Court by speci-
fying precisely the consensus that they maintain appeared in 1960 at
the Second United Nations Conference on the Law of the Sea and,
manifested in practice, became a general rule? Was it (a) the joint
United States-Canadian proposal for a six-miles territorial sea and
six-miles exclusive fisheries. subject to a phasing-out period; or (b) that
~ro~osal as amended bv Brazil. Cuba and Urueuav: or (cJ the 12-mile
exciusive fishery limit.allowed hy the joint Üniied tat tes-canadian
proposal and inherent in the minority proposal for a 12-mile territorial
sea; or (dj some other principle or undersvanding?"
Mr. President, in paragraph 212 of the United Kingdom Memorial
reference is made, 1 accept, to the general consensus which the 1958 Con-
ference revealed; and in paragraph 225 of that Memorial reference is also
made to the consensus which had emerged al the 1958 and the 1960 Con- ARGUMENT OF MR. SLYNN 495
ferences and which indeed had failed by only one vote to be incorporated in
a Convention to be adopted by the latter Conference.
Her Majesty's Government do not contend that, in the matter of fishing
limits, there was achieved either at the 1958 Conference or at the 1960
Conference a consensrtsaccording to the somewhat special meaning which
that word has come to have in the United Nations. What they maintain-and
what was intended by these passages in the Memorial-is that at the 1958
Conference there began a process, continued at the 1960 Conference, which
led to the emergence of the rule of the 12-mile fishery limit. At the 1958
Conferencethe matter of fishery limits began to emerge as an issue separate
from that of the territorial sea, although ofcourse closely linked Io the latter.
In the case of the 1960 Conference, resolution 1307of theThirteenthSession
of the General Assembly which convoked it did so for the express purpose
of considering further the questions of the breadth of the territorial sea and
fishery limits, thus recognizing that the two issues, though associated, were
separate. As it happened, no forma1 agreement was obtained on either of
these issues in 1960 and so closely were they still linked together that it
would have been difficult for the Conference in the time available to achieve
even an informal consensus on one of these issues separately.
What Her Majesty's Government do maintain is that there resulted from
the 1958 and the 1960 Conferences a climate of opinion which inereased the
possibility of States on their own. and away from the multilateral conference
table. doine one of two thines-either thev could arrive at arraneements on
their own in the matter oîfishery limits, or iheycould draft their own national
legislation on that matter in a way which would reRect the majority view that.
as Her Majesty's Government &es it, had emerged al those Conferences,
whilst agreeing to defer for the time being the substantially more dificult
issue of the breadth of the territorial sea. Thisisisubmitted, is what in fact
happened, mainly after the termination of the 1960Conference, although the
Court will recall that the agreement of 27 April 1959 between the United
Kingdom and Denmark relating to fishing in the area of the Faroe Islands
was a first indication of the new trend even before the 1960Conference was
held.
Mr. President, in the view of Her Majesty's Government, what led to the
emergence of the rule that a coastal State is, subject to certain safeguards in
favour of other States, entitled to an exclusive fishery limit of 12 miles was
essentially State practice in the period after the 1960 Conference. This Her
Majesty's Government have said in paragraph 212 of the United Kingdom
Memorial. The first example of this is the Anglo-Norwegian Agreement of
17 November 1960,and the second example is the Anglo-Icelandic Exchange
of Notes itself of 11 March 1961. Itis. however, significant that the Anglo-
Norwegian Agreement. when referring to "the proposal on the breadth of
the territorial sea and fishery limits which was put forward jointly by the
Governments of the United States of America and Canada at the Second
United vations Conference on the Lawof the Sea in 1960". still characterized
it merely as a proposal on the basis of which they were willing to stabilize
their fishery relations.
Her Majesty's Government do not admit that the 12-mile exclusive fishery
limit was a rule of law at the time of the concluding of the Agreement with
Norway. any more than they admit that it was a rule of law at the time of
concluding the Exchange of Notes with lceland in March 1961. The Court
will recall that in that Exchange of Notes it was expressly stated by Her
Majesty's Ambassador in Reykjavik that the contents of the lcelandic496 FISHERIES IURISDICTION
-o~ ~an Minister's Note were acceotable to the United Kinedom for the - -- ~~~.
purpose of accomplishing the settlement of the dispute, if 1 may quote his
words, "in view of the exceptional dependence of the lcelandic nation upon
coastal fisheries for their livelihood and economic development, and without
prejudice to the rights of the United Kingdom under international law
towards a third partv". ln other words the United Kingdom rhen reaarded
its ;tccepianre of lccl<ind's12-mile liniit ut rhur finir as asoncession vhich it
was not obliged undcr internîtional Iaw. as itrhrti srood, to nirilie.
It perhaps is not easy to point to any specific moment of time when it can
b~ ~-id that a new rule~ ~ ~ustomarv international law has-c~ ~ into ~e~ne.
Perhaps it is sufficient for present purposes to Say that in the view of Her
Majesty's Government the European Fisheries Conference of 1964,and more
particularly the Convention which was concluded at that Conference, con-
stituted an important stage in the evolution of the new rule. It is, we submit,
significant that at that conference a number of major fishing countries were
able to deal with the question of fishery limits as a separate issue, thus
disentangling as it were that question from the question of the breadth of the
territorial sea. No longer were fishery limits regarded merely as part of a
package designed to shore up agreement on the territorial sea. They in their
own right were treated as a matter upon which States assembled in conference
should strive to agree, and did in fact agree.
There followed upon this the Canadian legislation of 1964, the Néw
Zealand legislation of 1965 and the legislation in the United States in 1966.
These examples are referred to in three paragraphs of the Memorial of the
United Kinadom. namelv 219. 223 and 224. and this ooint culminates in the
. -
following statemént whiih the'court will find set out ;n paragraph 225 of the
Memorial; and 1may perhaps be permitted to read just that:
"lt will thus be seen that, by about the middle of the 1960%a firm
State practice had been esiablished which set the limits of a coastal
Sl3te's fisherics jurisdiciion 31 12 miles from ils codst-or. niorç accu-
ratcly. from the baieline from which its territorial qe3 is meli~urcd Th#%
State practice was foundedupon the consensus which had emerged at the
1958 and 1960 Conferences and which indeed had failed by only one
vote to be incorporated in a Convention to be adopted by the latter
Conference. It was expressed in numerous international agreements and
acts of national legislation. It was acquiesced in by the vast majority of
States, even those who had hitherto been most conservative in their
approach tothe matter."
Mr. President, when considering the question whether a new rule of
customary international law has come into being it is necessary also Io have
in mind the Court's statement in the Norrh Sea Coniineirlal SheV cases
that-1 auote from Daee43 of the 1969 Reoorrs of the International Court of
Justice: A- ta ptteciice, including that of States whose interests are specially
affected. should have been both extensive and virtually uniform." Applying
this principle to the matter now under consideration. Her Maiestr's Govern-
ment maintain that it could no1safely be said that the new ruie had emerged
until Japan, a State whose interests were certainly specially aiïected in the
meaning of that principle, decided that it could not effectively challenge in
law the legislation of New Zealand and the United States. As from that
moment, in Our submission, it was reasonable to maintain that, notwith-
standing continuing disagreement on the breadth of the territorial sea, there
was then by that stage a new rule of law to the eiïect that a coastal State was ARGUMENT OF MR. SLYNN 497
entitled to an exclusive fishery limit of 12 miles. This new rule, in the sub-
mission of Her Majesty's Government, had thus come about as a result of
widespread recognition of two matters, recognition which was reflected in
the votinrr ai both the 1958 and the 1960Conferences. and which was con-
firmed subsequent IO thosc Conferences by Stiite practici.
The tuo matters to uhich Irefer are rirstly. rhatitwas possible to separate
the issue of fishery limits from that of the territorial sea, and secondly, that
if that could be done, the figure of 12miles was the correct limit in accordance
with international law for the purpose of defining the zone in which the
coastal State is entitled to exclusive fishery rights.
The answer then to the specific questions posed by Judge Sir Humphrey
Waldock in points (O), (b) and (c) of his first question is, therefore, that
there was no actual consensus as early as 1960on any of these three points.
Point (a). first point, as such is excluded because itcontains a reference to
a 6-mile territorial sea, on which there was insufficient agreement at the
1958 and the 1960Conferences, and on which it is submitted there has been
no significant State practice subsequent to those Conferences.
Point (6) of the question, in the view of Her Majesty's Government, is
excluded for the same reason because,although itcontains a reference to the
amendment moved by Brazil, Cuba and Uruguay about which 1 havealready
addressed the Court in my answer to Judge Jiménez de Aréchaga's first
question, that amendment left untouched the proposal for a 6-mile territorial
sea.
Point (c) is perhaps the one that has the best claim to be considered as
the basisof the consensusthat finallv emerged. Admittedly in that point there
is a referenîe to a 12-mile terriloriai sea. ln uhich thereuas neber iinything
like agreement in 1958and in 1960,but if. however. 1tis to be understood by
point (cl that mïnv States in Iavour of the ioinr United Stlitcs-Cdnadian
proposal were willi& to implement that part of it which referred to the 12-
mile fishery limit without waiting for agreement on the territorial sea. and
if furtherit is understood by point (c) that many States in favour ofa 12-mile
territorialsea were subsequently willing to agree.to a 12-mile fishery limit
without pressing for the lime being their claim to a 12-mile territorial sea,
then Her Majesty's Government accept that the new rule. which they main-
tain was crystallized in the middle 1960s,hadits origin in the various pro-
posais put forward by Canada and the United Statesfor a 12-mile fishery limit
hoth in 1958and in 1960,which culminated in theirjoint proposal of 1960.
Mr. President, 1turn then to the second question, which is as follows:
"Would counsel for the Applicant kindly specify what in their view
is the legal basis of the concept of preferential rights or preferential
position in the allocation of catch quotas which the United Kingdom
appears to recognize in ifs Memorial on the Merits. 1sthe 1958 resolu-
tion on Special Situations Relating to Coastal Fisheries now regarded
by the United Kingdom asexpressiveof a rule of law, or does itconsider
this concept essentially asa matter of equity?"
ln relation to a hieh seas fisherv such as that with which this dis~ute is
concerned, as ~rticle? of the ~ighkeas Convention makes clear, the exercise
of any particular freedom is subject to the obligation to pay regard to the
rights of other States. The moment a case for conservation of a high seas
fishery becomesclear on the scientific evidence, no one State can continue to
fish without regard to the rights of other States. From this the United King-
dom maintains itfollows that some system of restraints, some scheme for ARGUMBNT OF MR. SLYNN 499
on Special Situations, recognized the preferential requirements of the coastal
State in a special situation. The support for the three-Power amendment in
1960 to which 1 referred confirmed this trend. Hence, in the viewof Her
Majesty's Government, once it became accepted in State practice over the
next few years that the rights of States embrace a preferential position for
the coastal State, it followed that Article 2 of the High Seas Convention
required al1other fishing States to have due regard to that position.
In the submission of Her Majesty's Government, it follows that the 1958
resolution is not in itself the source of preferential rights or the legal basis
for that concept. As 1 have indicated, the legal basis is perhaps more soundly
located in Article 2 of the High SeasConvention. The 1958 resolution and
the State practice which followed do indicate, it is submitted, the existence
of a,consensus of view among States as to those circumstances in which the
concept of preferential rights becomesapplicable. Her Majesty's Government
does not, of Fourse, regard the resolution as giving an exhaustive definition
of the concept. The factual situations are likely to be so varied that in the
view of Her Majesty's Governnient the 1958 Conference was right in ils
resolution to limit itself to the making of the two general recommepdations.
In short, Mr. President, the resolution does not itself express the rule of
law on the matter of preferential rights but rather indicates two factors-and
there may of course be others-which will in general tend to produce the
just treatment of these special situations.
1 turn then to the third question, which appears on page 477, supro:
"Will counsel for the Applicant kindly give the Court some further
indication as to what in their view. the conceot of a coastal State's
prererenii31 rights or prefercniiol position entails in relJtion to (O) the
generdl righi IO freedom of flçhing nicniioncd in Article 2 of the Cicneva
Convention on the High Seasand (b) the concept of historic or tradi-
tional fishing rights?"
1 hope that it will be thought that in answering the previous question, 1
have indicated in sufficient detail that, in the view of Her Majesty's Govern-
ment. the conceot of a coastal State's oreferential riehts or oreferential
position essentiaiy derives from Article 2'of the High seas convention and
the subsequent State practice to which 1have referred. kt operates as a factor
necessaryto produce-an equitable result whenever a fishery resourcerequires
conservation, so that in that situation the States which had until then fished
the resource may not continue to do so without restriction. In such a situation
some system of sharing has to be devised.
If 1 may 1 will then turn to the second half of the question, which asks
what is the relation between this concept of preferential rights and the con-
cent of historic or tradition~ ~f~ ~ ~e riehts.
The obligation to pay due regaritche interests of other States which is
found in Article 2 of the tligh SeasConvention lies of course equally upon
coastal States. Thus, the coas?alState in a special situation must, in asserting
its own preferential claims, have regard also to the rights of other fishing
States. The equities in this kind of situation are not al1on one side and the
oblirations of coastal and non-coastal States are reciorocal.
~here are, it is submittedii" fact tko problems. Théfirst of those problems
is the allocation of shares hetween the coastal and the non-coastal States:
this, itis submitted, must be equitable. The second problern is the allocation
of shares as between the various non-coastal States themselves. This, it is
submitted, also must be equitable. In the view of Her Majesty's Govemnient, equity must demand that due
weight be given-in the context of both these problems 10 which 1 have
referred-to !he question of the extent to which and the period for which a
fishing practice has been pursued by a non-coastal State. This is essentially
what is meant by an historic or by a traditional fishing right. Where the
fishery practice is well-established and substantial, there mus1 in equity be
an entitlement to a ereater share of anv catch than in the case of a new or
limited fishing praccce. This is not simply a question of dealing with bare
statistics.It is a question which concerns the fair treatment of matters which
may affect the livelihood of whole communities.
In the view of Her Majesty's Governmenl the concept of an historic or a
traditional fishing right includes an economic elernent. Just as the coastal
State's oreferential riaht is based on overwhelmin~. economic de~endence.
so too does the histoGc or traditional right involvëthis factor of économic
dependence. It cannot, we submit, be equitable to ignore the economic
impact upon the fishing communities of a non-coastal fishing State of a
drastic cul in quotas: they, too, deserve a fair and equitable share.
Mr. President, having said this, 1do not believe that it is possible to indi-
cate to the Court the exact relationshi~ or balance between the coastal
Stntc's prefercniial right on the one hand'iind the non-coa>tul State's hi5ioric
or ir.idiiiunïl righi on ihc other Whdt 1.;squitahle pldinly cannut be deier-
mined in the abstract; it must depend entirely upon the facts of the particular
situation. All 1 would say is this, that difficult though it may be to reach a
jus1 and equitahle result, in.practice States do reach agreement on catch
quotas, in practice they do reach agreement to achieve an equitahle result and
in the answer to the next question put by Judge Sir Humphrey Waldock 1
will try to illustrate, in the context to that question. how, in the Faroes
agreement and in other agreements in the North Atlantic against the hack-
ground of the facts of the particular situation, this has been achieved. It is
perhaps convenient to consider that question again in the context of the
fourth question posed by Judge Siç Humphrey Waldock, which Iread:
"Leading counsel for the Applicant has referred to the recent mul-
tilateral agreement concerning the Faro& as an illustration of an
appropriate application of the concept of the preferential rights or
preferential position of a coastal State in a special situation.' Will counsel
please indicate:
(a)Whether and to what extent in that agreement the concept of
historic or traditional fishing rights was also applied;
(b) more generally, 10 what extent the concepts of preferential rights,
or oreferenliai oosition of a coastal State. and of historic or tradi-
tional rights, have received application O; been discussed in bodies
operating under the North-East and North-West Atlantic Fisheries
Conventions. or in connection with anv other Atlantic Fisheries
agreements &ch as that between ~orway,ihe Soviet Union and the
United Kingdom concerning Arctic Cod."
In the Faroes Aereement. to which the first oart of this auestion refers.
apart from the preference which is given to the coastal State, ihe main crite-
rion for the allocation of the catch quotas was the historic r>erformance of
the parties in the area. 1will give details of that in the course of my answer
but it is perhaps convenient to run parts (a) and (b) together, if Judge Sir
Humphrey Waldock will permit me to do so.
Ever since the question of the limitation of fish catches in the North ARGUMENT OF MR. SLYNN 501
Atlantic has been discussed as a practical possibility-and 1 interpolate, this
has onlv been over the last five vears or so-the concepts of preference for
coastal States and of histo;ical pérformance by States fishing inthe area have
played a very ~r~minent part in the discussions of the various commissions
concerned. ,
The first commission to investigate the question systematically was the
lnternational Commission for the North-West Atlantic Fisheries which in
1969 asked its Standing Committee on Regulatory Measures to consider
what factors should determine the allocation of catch quotas. That Com-
mittee of the North-West Atlantic Fisheries Commission suggested that
shares should be based mainlv uDon historical performance, but that other
factors for consideration iniludcd provision for States with developing
fisheries. for coastal States and for States with fleets which were incapable of
being diverted to other fisheries.
The weight to be given to each of these factors would of course depend on
the particular conditions of each separate quota scheme.
This report of the North-West Atlantic Fisheries Commission was con-
sidered in the course of 1969 by the North-East Atlantic Fisheries Com-
mission's ad hoc Study Group which was concerned with the North-East
Arctic and which reported in October of 1969.
That Committee's report in its turn was considered by the Standing
Committee of the lnternational Commission.for the North-West Atlantic
Fisheries in January of 1970.The North-East Atlantic Fisheries Commission
Study Group report had added the new point that the percentage shares of
different countries would not necessarily remain fixed at al1levels of the total
'~at~h. It sue--~~.d. as its new noint. that the lower the level of the total
allowable catch, the greater might be the degree of preference accorded to
those countries in the scheme having special needs, including, of course, the
special needs of coastal States.
Since the North-East Atlantic Fisheries Commission had at that time no
power to propose measures of catch limitation, its committee also noted the
possibility of schemes king adopted in which countries accounting for the
major part of the catch might agree on a quota scheme which they would
observe as long as catches by countries outside the agreement did not exceed
a level which was agreed upon by the parties.
These then, Mr. President, are the discussions which took place on the
general principles applicable before negotiation kgan for catch quotas for
the various fish stocks of the North Atlantic.
The negotiations to fix such quotas for the North-West Atlantic took place
in 1972 and their progress, as far as cod stocks are concerned, is indicated
on the mao 7hic~ ~ ~ ~ Annex ~8 -~ t-e Memorial of the United Kingdomand
thecourt u,ill recall that the inforniaiion which that nlap giveswas brought up
iodate by the Attorney-General whcn he addressed the Court on Mondiiy.
In fixine these auotas the member States of the Commission for the North-
West ~tlantic~;sheries in mostcases agreed to apply a formula which
allocated 80 percent. of the catch in proportion to the historic performance
of member States in the fisheries. 10 percent. to coastal States, which was in
addition to their share based on historic performance, and a remaining 10
per cent. in respect of special needs such as those of recent entrants on the
one hand and of established fleets which were incapable of being diverted
on the other hand. In more general terms, the 10 percent. for special needs
was to be allocated to meet caseswhere a rigid application of quotas based
on historic performance would have led to inequitable results. The figure of 80percent. of the catch was allocated on the basis of historical
performance, and this in its turn was divided into two parts. Forty percent.,
that is, half the amount, was allocated in proportion to each country's.
average catch over the most recent IO-year period, that is. the period from
1961 to 1970; the other half, the other 40 percent., was allocated in propor-
tion to average catches over the most recent three-year period, that is to say,
between 1968 and 1970. The Court will readily appreciate that the effect of
this procedure was to give greater weighting to performance in more recent
years.
Thus historic performance in the sense that 1have referred to was at the
very root of the calculation of the quotas in this system.
So much for the North-West Atlantic, which is the area in which the
application of catch restriction is furthest advanced.
In the North-East Atlantic the situation is very different owing to the
dificulty which has arisen over ratifying Article 7 (2) of the Convention,
to which we have several rimes referred. This has meant that it has not been
possible to agree catch quotas through the machinery of the North-East
Atlantic Fisheries Commission.
The two aareements which have so far been made in this area in relation
to demersal Ksh, to which 1shall refer later, were both made od hoc between
the individual member States engaged in fishing in the areas in question.
However the same eeneral orincioles have been followed as in the North-
West Atlantic. The quotas have been allocated on the basis of historic
performance with a substantial preference to the coasral State in each case.
The first of the two agreements in point of time was the arrangement
regarding fisheries in the area of the Faroes, to which the Attorney-General
referredon Monday 1.
That agreement was signed on 18 December 1973 and it came into force
on 1 January 1974 and has been registered with the United Nations. It
relates to the International Council for the Exploitation of the Sea Area Vb
which is clearly marked on the map being Annex 28 2 to the United Kingdom
Memorial, and the Court will observe that that Area is to the south-east of
the Iceland Area (Area Va).
The relationshio of the catch quotas allocated bv that arrangement to the
historical nerformance of the oaities can neC~~~s .e-t-~- exnlahed bv refer-
ence to thé table of figures~wh'ichhas bien provided for theise of ~Lmbers
of the Court in connection with the answers which were requested from Her
Majesty's Government. Perhaps 1 might invite Members -of the Court to
examine that tableand 1propose to refer to a number of the figures on it 3.
Mr. President, as can be seen, although there are seven signatories to the
agreement, namely Belgium, Denmark, which of course conducts the foreign
relations of the Faroes, France, the Federal Republic of Germany, Norway,
Poland and the United Kingdom, by far the greatest part of the catch in the
Past has been taken by the coastal State and one other country, namely the
U-ited Kinednm
One can see from the table at the too of the vaee that what has happened
over the last ten years is that while theLatch ofthe United Kingdom and the
other non-coastal States has remained fairly steady, the total catch has risen,
as a result of the increase in the Faroese catch.
Seepp. 455-456, supra, and 513-516and II,pu. 471,475.
See p. 411,supra.
' Sg p. 519,supra,and il, p. 475. ARGUMENT OF MR. SLYNN 503
When it became necessary, or at any rate desirable, to limit the total
catch, the Faroes was allocated an annual quota of 32,000 tons which is
rather mote than she has achieved in the past (Members of the Court will
see that figure of 32,000 tons appearing as the first entry in the final column
of the table at the top of the page), while the United Kingdom agreed to
reduce her annual catch from a 5-year average of about 23,000 tons to 18,000
tons (aeain the~Co~rt will see those fieu-es in the~ ~cond line of the table)
and al1 the other nations agreed together to reduce their annual catch from
about 5,000 tons to a figure of 2.000 tons.
MI. President, there 7sno doubt that the very large preference given to the
coastal State in this case was due to the admittedly high dependence of the
Faroese on fishing, a dependence, it can be said, at least equal to that of
Iceland.
In the view of Her Majesty's Government, this is a very fair and equitable
arrangement and it issubmitted that the same ~rincioles could with advantage
be applied in the lceland area which lies just to the north-west of the aria
covered by this agreement.
The second agreement to which 1 referred is that relating to the North-
East Arctic which was signed in London on 15 March and which came into
force at once. 1am in a position now to inform the Court that this agreement 1,
copies of which have been supplied to the Court, was registered with the
United Nations on 25 March.
The North-East Arctic is the large cross-hatched area on the map at
Annex 28 and lies just to the north of the Faroes. It consists of Spitzbergen,
Bear Island, Barents Sea and the Norwegian Coast.
This area is one where there was firm scientific evidence of the clear need
for catch limitation in order to conserve the cod stocks.
As the United Kingdom has pointed out in paragraph 120of its Memorial,
it was in this area that in 1970 the year's catch was found to amount to 41
per cent. of the total estimated weight of the stock as against 16 per cent.
in the lceland area.
This being so, the States mainly concerned. which are Norway, the Soviet
Union and the United Kingdom, did not think it wise to wait for implementa-
tion of Article 7 (2) so that the matter could be dealt with through the conven-
tion machinery.
These three countries between them accounted for well over 90 per cent.
of the total catch in the area. As 1have explained to the Court, one of the
possibilities envisaged by the North-East Atlantic Fisheries Commission
was a scheme by which countries accounting for the major part of the catch
might agree on a catch limitation which they would observe as long as catches
by countries outside the agreement did not exceed a level agreed by theparties.
It was precisely this type of agreement which was made by these three
countries.
Mr. President, the Court has, on the same table which the Agent of the
United Kingdom has provided for the Court in his letter 2 of 28 March of
this vear. the fieures relatine to this aereement.
~he figures & the first fwo columns give an indication of the parties'
historic performance in this area. TheCourt will see that the figures are given
for two periods and they cover the three countriesNorway, théSoviet Union
and the United Kingdom.
* Seepp. 517-518, infra and II, pp. 473,475.
2 II, p475. The parties agreed in the light of the scientific evidence to reduce their
own catch from an annual average total of just under 8CO.000tons (the Court
sees the figure of 797,000 tons-an annual average of just under 800,000 tons
in the years 1969-1972)to a total of 500,000 tons in 1974(the Court has that
figure in the final column of the second table).
They then, by an,agreed formula, divided this total catch between them-
selves on the basis of their actual catches in former years.
The Soviet Union and the United Kingdom then each reduced their quota
so calculated by one-tenth and they each added that tenth to the quota
allotted to Norway.
The right-hand column, to which 1have referred, shows the actual quotas
allotted.
In this agreement the contracting parties bind themselves not to exceed
these quotas so long as catches by other countries do not exceed 50,000 tons,
which is a fair and equitable allowance having regard to their past perfor-
mance in the area and to the need to restrict the catch.
The other countries which fish in the area al1are or, in one case soon will
be, members of the North-East Atlantic Fisheries Commission. The fact
that they are not parties to the agreement arises rather from procedural
difficulties than (rom any lack of appreciation of the necessity for catch
limitation. Accordingly the parties to this agreement have no reason to
believe that there will be any difficulty in practice.
Perhaps 1may be allowed to say once more that this is a form of procedure
which in our submission could with advantage be followed in the Iceland
area which, as the Court can see from the map at Annex 28 1,is adjacent to
this area and immediately to the West.
Thus, MI. President, not only has it been the general practice in the North
Atlantic in the very recent past to allocate catch quotas by reference to
historic wrformance modified bv a preference firstly. to coastal States and.
secondi% to other Statcs with spccial necds. but therc-is at least one agreement
which illustraies how consideraiion can in practicc hc given to the rights OF
States which are not parties to that agreement.
I turn now to the fifth question posed by Judge Sir Humphrey Waldock.
which is to be found on page 478, supra, and that asks that counsel should
indicate whether they draw any distinction between, on the one hand,
historic or traditional fishing rights as a basis for the phasing-out arrange-
ments connected with the 12-mile exclusive fishery zone and, on the other
hand, those rights as a basis for determinina catch auotas outside that zone.
In the submission of Her Majesty's ~overnment there are important
distinctions between, on the one hand, the concept of historic or traditional
fishing rights as used in connection with phase-out agreements within the
12-mile zone and, on the other hand, the concept of historic or traditional
fishing rights as used in relation to the high seas for determining catch quotas.
The former concept arose when. in 1958 and 1960 there emeraed fairlv
ividcsprcad support for scparating an cxclusive fishirigzone from thr terriro;
rial sea and nidening ihat exclusi\c fishing zone. The United Stxtes and
Canadian propos~l in 1960. for ex~mole. envisaaed an cxclusive lishine zone
which, in so far as it lay outside the te.rritorial s&, was technically partof the
high seas. However, within that zone the coastal State was to have "the
same rights in respect of fishing and the exploitation of the living resources
of the sea as it has in its territorial sea".
1 Sn p. 411, supra. ARGUMENT OF MR. SLYNN 505
Mr. President. once an exclusive fishine zone became oermissible bevond
the limits pf theterritoriasea, it would fillow, in Our submission, thatnon-
coastal States would lose their previous riahts to fish in those areas of the
high seaswhiçh mighi then beco;ne part of Ïhis .'exclusi\e" zone.
Ii uas apparent ihat to cut nt? theje rights of non-coastal States. without
allowina any rime for making the necessary economic adiustments. would
-.
bc urong; it \va<equally apparent that soineco~sta1 St;iies uere no1 prepared
10 eirvisage the continuation in perpetuity of the righti of non-coastal States
in what was to be, in principle, an "exclusive" zone. Hence, as the Court is
no doubt aware, the compromise which was sought in 1960 in the United
States and Canadian proposa1 for what may be termed a "six-plus-six"
formula. was that so-called historic riehts should be ~hased-out over a period
of rcn yean In rhe event. the court-knows, thzt proposal u3s flot adopted
but iris a facr that niany bilateral treaiies h3ke crnbodied the "phase-out"
orincinle in rejr>e~.iof historiç ri~htj, although usuilll~ for jhorier oeriodr than
;en YC~TS. On ihe other hand. iÏis aljo a&t that some uf thes; agreenients
did envisage the indefinite continuation of traditional or historic rights. The
European Fisheries Convsntion of 1964 is anotablc ex~mple.
~he three features of this concept of historic rights which 1desire to stress
are firstthat it applied in a zone which was agreed to be in principleexclusive
to the coastal State; secondly that these historic rights were in some cases
limited in duration; and third. that il had nothing to do with conservation
needs.
The position is totally different when one turns to a high seas fishery in
its ordinary sense.There is no question of any exclusive zone and. as 1have
. indicated earlier, the concept of the historic right or traditional fishing
practice becomes relevant in determining what is equitable when a situation
arises in which there is a conservation need.
There is no question oflimiting the periodfor which ahistoric or traditional
fishing right may continue to be enjoyed to a specific term of years. The time
factor is controlled entirely by the conservation need. As long as the need
remains, so long mus1 the interested States retain their quota system and,
correspondingly, the relevance of the historic or traditional rights remains,
just as the relevance of the coastal State's preferential right remajns.
The PRESIDENT: Sir Humphrey, do you wish to continue to question
Mr. Slynn?
Judge Sir Humphrey WALDOCK: No, thank you, Mr. President.
Mr. SLYNN: 1 turn next to the question which was put by Judge Gros 1
to the Agent of the United Kingdom, which 1 will read out as 1think il does
not appear on the verbafim record.
"Ln its Mernorial and its oral arguments the Government of the
United Kingdom has referred on several occasions to the positions
adopted on the question of fisheries round lceland by the countries
directly concerned (for example: Memorial, paragraphs 240, 242, 243.
244, 280 and 306; the last-mentioned paragraph was read out at the
Sitting of 25 March 1974, p. 474, supra). In that connection, what con-
clusion can be drawn from the agreement of 22 Sulv 1972 between the
European Economic Community and Iceland, including Protocol No. 6
thereto, as regards the position of lceland and that of the States of the
European Economic Community?"
1 U, p.474. Mr. President, where reference is made in paragraphs of the Memorial-
paragraphs 240, 242, 243, 244, 280 and 306-to the countries "interested" or
"aflected" or "concerned", Her Majesty's Government had in mind those
countries which have in the past fished in the Lceland area. Those countries.
apart fron the United Kingdom and Iceland, are the Federal Republic of
Germany and. to a lesser extent, the Faroes. Belgium and Norway.
With regard to the question of the positions of lceland and of the States
Members of the European Economic Community. the situation as we see it
is as follows:
Three of the member States-Belgium, the Federal Republic of Germany
~n~-t..~. .~ ~ Kinedom-fish in thelceland area. The remainine six-member
~ ~ ~
States do not fishthere to any significant extent. Accordingly those six States
are not "interested" in or "concerned" about the fisheries around lceland in
the~s-~~~~~hat those terms were emoloved.in .he relevant ~arÿnraoh. of -.e
United Kingdom ~emorial.
The agreement of 22 July 1972 was concluded between the European
Eco~om~c Communitv. as s..h. and the Reoublic of lceland. Itwasintended.
in the words of its preamble, to "consolidate and to extend the economic
relations existing between the Community and Iceland", that is to say, the
Ae-eement (which entered into force on 1 Aoril 1973) concerns economic
relations generally.
Protocol No. 6 to the Agreement contains the "special provisions applicable
to imports of certain fish products into the Community" from Iceland. Those
provisions are in Article 1 of that Protocol; they concern tarit% and customs
duties.
Paragraphs 1and 2 of Article 2 read as follows:
"(1) The Community reserves the right not to apply the provisions
of this Protocol if a solution satisfactory to the member States of the
Community and to Lceland has not been found for the economic prob-
lems arisine from the measures adopted by Lceland concerning fishing
rights. ~he~ommunity shall inform lcel-and of its decision~on this
matter as soon as circumstances permit and no1 later than I April 1973.
(2) If it aooears that a satisfactorv solution cannot be found until
af&r ihis dat;:the Comniiinity m3y p&tpone the drri%ionon the applica-
tion of this Protosol pruviding it inforiiir Iccl~nd aicordingly. The
Communiiy shnll inform lceland a5 soon as the deci>ion 1staken."
At the present time the provisions of Article 1of the Protocol are not being
applied because the Community has postponed its decision in accordance
with the terms of Article 2.
Accordingly, in the view of Her Majesty's Government, itis not possible to
draw any particular conclusion from this Agreement which is relevant to the
present dispute.
The PRESIDENT: 1shall ask Judge Gros whether he wishes to continue.
1undarstand from his gestures that he does not.
Mr. SLYNN: The final auestion. Mr. President. was the second auestion
asked by Judge Petrén 1,which again is not 1think in the verbatim'record,
so perhaps il would be convenient if 1were to read it out in full. The question
is as follows: ARGUMENT OF MR. SLYNN 507
"ln paragraph le, of the final submissic~nsthe possibility is sontem-
plated of bilateriil negotiaiionr bctu.een the Unitcd Kingdoni and Iceland
IO lcad IO the establishment of 'ruch a rcgime . . .as. having due regard
to the interests of other States. will ensure for Iceland, in respect of any
such rcstrici~onstkat are shoun tu be needed as aforcsaid. a preférenii~l
pgisitiiin itmsisteni uith its positidn as 3 Stdte specially dependent on
those fisheries and as \\il1îlso ensure for the United Kingdom a pdsition
consistent with its traditional interest and acquired righG in andcurrent
dependency on those fisheries.'
1s it here contemplated that the fisheries régime to be established
bilaterally by the United Kingdom and Iceland would be based also
upon an overall assessment of the interests of other States as being
traditional interests or acquired rights?"
As 1 have already suggested in my answer to the third question posed by
Judae Sir Hiimphrey Waldock. equity demands ajust and equitable share not
onlibetween thecoastal and thenoncoastal ~tatei. but also between the non-
coir,tal States theniscl\cs Accordingly. the ansuer IO Judge 13etrCn'ssecond
question is that certainly üny agreement betwecn the United Kingdom and
lceland would have to taki a&ount of the traditional fishing practices of
other States. One of the advanmges, of course, of using established inter-
national machinery, such as the North-East Atlantic Fisheries Commission.
is that a more comorehensive review of the eauities of the situation. in the
light of the establisied rights of al! the becomes possible. The other
interested States-for example the Federal Republic of Germany, France,
Be~~U~.. Norwa~,and the~Faro~s-are ~ ~~~embers of the North-East Atlantic
Fisheries Commission, so this would raise no practical difficulties. 1 would
add only this that, in the view of Her Majesty's Government, the obligation
to strive for a conservation régime acceptable to al1 the interested States
derives not so much from the North-East Atlantic Fisheries Convention as
from a more general principle of international law. It is. in the submission
of Her Majesty's Government, this principle which lies al the basis of the
Convention on Fishing and Conservation of the Living Resources of the
High Seas of 1958. It is for thir reason that Her Majesty's Government, in
its submission at oar.eraoh 319 le). has referred exoresslv to the "dutv to
examine together in goid faith,' Aiher bilaterally Or together with oiher
interested States and either by new arrangements or through already existing
machinery for international ckllaboratioiin these matters such as the North-
East Atlantic Fisheries Commission", the need for and the content of a conser-
vation régime. Mr. President, thc aim of Her Majesty's Government would
be to achieve a multilateral agreement acceptable to al1the interested States.
Yet, even if the United Kingdom and Iceland were to proceed on a purely
bilateral basis, as might have to be the case if Iceland so insisted, in the
submission of Her Majesty's Government, horh States would be in duty
bound to negotiate having regard to the interests of other non-coastal States
with established fishing rights. In practice. it is considered that this could
readily be done by consultation with those States.
The PRESLDENT: Does Judge Petrén wish to raise some further points
in connection with that reply. ~
Judge PETRÉN: No, thank you, Mr. President, and as to the new question
1 asked today 1 1 am quite happy to receive a written reply later.508 FlSHERlES JURlSDlCTlON
Mr. SLYNN: 1am extremely grateful to he told that hecause it willenable
us to consider the question and to give it morethought than would he possible
if1were to give an immediate answer at this stage. We will, if wemay, reply
to the question in writing, Mr. President.
The PRESIDENT: Yes. 1 thank you, Mr. Slynn, for the assistance you
have given to the Court by replying to the questions put to you by Members
of the Court and, asto the question put to you by Judge Petrén,we hope you
will be able to supply us with a written reply by Tuesday morning at the
latest.
Mr. SLYNN: Yes, Mr. President. We will do Our best to ichieve that
dead-line. If we have difficulties about time-because of course we have to
go back Io London-the Agent will be in communication with the Registrar
and will inform him of any problems which may arise. But 1hope we shall be
able tocomply with your request. We willcertainly do Ourbest.
The PRESIDENT: The Agent will, as 1said earlier, remain at the disposai
of the Court in order to supply it with whatever information 1will still be
required.
The Corrrrroseor 1.10 p.m.
1 II,pp. 482-484. READING OF THE JUDOMENT
SEVENTH PURLLC SITTING (25 VI174)
Presenf: [See sitting of 25 11174,Vice-President Ammoun and Judges de
Castro and Jiménez de Aréchaga absent.]
READING OF THE JUDGMENT
The PRESIDENT: The sittingis open.
The Cour! meets today for the reading in open Court, pursuant to Article 58
of the Statute, of its Judgment on the merits in the FisheriesJurisdicrioncase
brought by the United Kingdom of Great Britain and Northern lreland
against the Republic of lceland.
To the Court's regret, Vice-President Ammoun is not with us today, and
has been unable to participate in the decisions in the FisheriesJ~lrisdicrion
cases. Shortly after the beginning of the Court's deliberations, the Vice-
President suiïered an accident, and was obliged to spend some fime in
hospital, so that he was unable to contribute further to the deliberations.
Judge Dillard also was absent for part of the deliberations because of illness
but returned in time to participate in the remainder and in the vote.
Two other Mernbers of the Court are unable to be present at today's
sittine: Judne de Castro is absent for reasons of health. and Judne Jiménezde
~r6ch:;ga f& faniily reasi>n\. Hoih of iheiii. houever, pitriicipaied throughoui
the Couri's deliberaiions. and look part inthe iinal voie in the c3se.
1shall now read the Judgment.
[The President reads paragraphs 14 to 78 of the Judgment 1.1
1shall now ask the Registrar to read the operative clause of the Judgment
in French.
[The Registrar reads the operative clause in French 2.1
Imyself append a declaration to the Judgment, as also do Judges Dillard,
Ignacio-Pinto and Nagendra Singh. Judges Forster, Bengzon, Jiménez de
Aréchaga, Nagendra Singh and Ruda append a joint separate opinion Io the
Judgment; Judges de Castro and Sir Humphrey Waldock append separate
opinions to the Judgment. Judges Gros, Petrén and Onyeama append dissen-
ting opinions to the Judgment.
(Signed) Manfred LACHS,
President.
(Signed) S. AQUARONE,
Registrar.
1 I.C.J.Reporrs1974,pp. 8-33.
Ibid.PP. 34-35.DOCUMENTS SUBMITTEDTO THE COURT
AFTER THE CLOSURE OF THE
WRITTENPROCEEDINGS DOCUMENTS
ARRANGEMENT RELATINC TO FISHERIE IS WATERS
SURROUNDINO THE FAROE ISLANDS
The Parties to this Arrangement,
Realizing that thescientific evidence available calls for immediate measures
for the purpose of conservation of fish stocks in the Faroe Area (ICES
Statistical Division Vb);
Considering the exceptional dependence of the Faroese economy on
fisheries, and
Reconnizina that the Faroe Islands should en..y o.eference in waters
surrourÏding CheFaroe Islands;
Have agreed as follows:
Article 1
The fishing forthe demersal species cod and haddock in the lCES Statis-
tical Division Vb shall be limited annually as prescribed in thecatch limitation
scheme annexed hereto (Annex 1). which shall be an integral part of the
present Arrangement.
Article2
1. Contracting Parties directing their fisheries in the area solely towards
demersal species other than those covered by Article 1 shall not conduct
their demersal fisheries in a wa. s-enificantlv differefrom those of the
years 1968 to 1972. Their annual catches f;om trawl fisheries shall not
exceed by more than lOX the highest figure they have respectively achieved
in those vears as recorded bv thelnternationalCouncilfor the Ex~loration
of the ~ea.
2. The annual catches of Parties to whom paragraph 1 applies and whose
fleets fish solely by line andllnets in the area, shall not exceed by more
than 25% the highest figure achieved over the years 1968 to 1972 as
recorded by the International Council for the Exploration of the Sea.
3. Contracting Parties which have not habitually exercised fishing in the
area shall limit their annual catches of demersal species mentioned in
paragraph 1 to a maximum of 2,000 tons each.
Article 3
1. The sub-areas identified on the chart and accompanying description
annexed hereto (Annexes II and III)shall be closed for trawl fishing by
vessels of al1 the Contracting Parties annually during the following
months:
sub-area 1: February 15 to May 15
sub-area 2: June 1 to November 30
sub-area 3: April 1 to June 30 and October I to December 31
suh-area 4: December I to March 31 and May I to May 31
sub-area 5: March 1 to March 31
2. The maximum allowable size in terms of Cross Renister Tons of trawlers
fishing within the sub-areas mentioned in paragraph~ shall not exceed the
size habitually used before the end of the year 1973.
1 Seepp. 455-456,rupro,and II,pp.472and 475514 fISHERIES JURlSOlCTION
Article 4
Notwithstanding the provisions in Article 3 small Faroese vessels may
continue trawl fishing in the sub-areas mentioned in Article 3.1. for the
following annual quantities of demersal stocks:
in sub-area 2: 1,250tons; in sub-area 3:,250tons; in sub-area 4: 500 tons.
These quotas form part of the total Faroese quota according to the catch
limitation scheme annexed hereto.
Article5
Nothing in the present Arrangement shall be deemed to prejudice the
views of any Contracting Party as to the delimitation and limits in inter-
national law of territorial waters, adjacent zones or of jurisdiction in fishery
matters.
Article 6
1. The present Arrangement shall enter into force on January 1, 1974.
2. Any Contracting Party may request a review of the Arrangement.
3. Any Contracting Party may withdraw from the Arrangement by means
of a notice in writing addressed to the depository Government who will
notify the other Contracting Parties. Any such denunciation shall take
eiïect six months after the date on which such notice is given.
4. This Arrangement shall be deposited with the Government of Denmark
by which certified copies shall be transmitted to the Governments of al1
Contracting Parties.
5. In witnesswhereof the undersigned, being duly authorized thereto, have
signed the present Arrangement.
Done at Copenhagen on the 18th December, 1973.
For the Government of Belgium
Sous réserved'approbation parlementaire.
(Signed) A. LONN~Y
.
For the Government of Denmark
(Signed) K. B. ANOERSEN
For the Government of France
(Signed) Pierre PELEN
For the Government of the Federal Republic
of Germany
(Signed) Werner AHRENS
For the Government of Norway
(Signed) Arne SKAUG
For the Government of Poland
(Signed) R. PIETRASZKA
For the Government of the United Kingdom of
Great Britain and Northern Ireland
(Signed) A. A. STARK Annex 1
CATCH LIMITATION SCHEM EOR COD AND HADDOCK INICES STATISTICAL
DIVISIONVb
(Merric ions roundjresweighr)
Faroes UK Others Total
Cod 32,000 18,000 2,0001 52.0002
Haddock }
1The Contracting Parties no1 mentionnameyin the scheme will use their best
endeavours tosure that their catches including by-catches do no1exceed this amount.
2The Contracting Parties will use their best endeavours to ensure that the catches
constituting the total quota do not30,00e0ons for cod and 22,000tons for
haddock.
.
AnnexII
MAP
Nor reprodiicedl Annex III
Sub-area 1 : 8 nautical miles from the limit of the fishing zone between a line
OOiruefrom Eidiskoll and a line 90" true from Bispur.
Sub-area 2: 18 nautical miles from the limit of the fishing zone between a
line 90" trhe from Bispur and a line 90' true €rom Akrabergi.
Sub-area 3: (a) 12nautical miles from the limit of the fishing zone between
a line 150' true from Akrabergi and a line 190' true from Akra-
bergi, and
(b) 6 nautical miles from the limit of the fishing zone between a
line 190"true from Akrabergi and a line 240' true from Drnani-
puni.
Sub-area4: 12 nautical miles from the limit of the fishine zone between a
line 240" true from Trnllhevda and a line 320'true from Bardi.
Sub-area 5: Faroe Bank (ICES Sub-Division VbZ)within the 200 m. isobath. DOCUMENTS
AGREEMENT BETWEEN THG EOVERNMENT Of THE UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND. THE GOVERNMENT OF THE KINGDOM OF
The Government of the United Kingdom of Great Britain and Northern
Ireland, the Government of the Kingdom of Norway and the Government
of the Union of Soviet Socialist Republics;
Desirous of regulating the fishing of North-East Arctic (Arcto-Norwegian)
cod (Cadus mortrua) with the abject of protecting stocks;
Have agreed as follows:
Article 1
For the purposes of this Agreement:
(a) "North-East Arctic Area" means Statistics Areas 1 and 11of the Inter-
national Council for the Exploration of the Sea, that is the sea areas
lying between longitude 1IoW and 68" 30'E. to the north of a line running
from a position longitudeI IoW andlatitude 63"N in an easterly direction
along the parallel of latitiide63"N ta longitude 4"W, then south ta
latitude 62"N. thence east to the Coastof Norway;
(6) "Competent Authorities" means:
for the United Kingdom, the Ministry of Agriculture, Fisheries and
Food;
for Norway, the Ministry of Fisheries;
for theUSSR, the Ministry of Fisheries for the USSR.
Article II
(1) The Contracting Parties undertake to take appropriate masures 10
regulate fishing by persons and vesselsunder their jurisdictioin the North-
East Arctic Area so that the total catch of North-East Arctic (Arcto-Nor-
wegian) cod taken in that area in 1974 shall no1 exceed the following limits:
United Kingdom ............ 77,650 metric tons
. Norway ................ 242.850 metric tons
USSR ................. 179,500 metric tons
(2) There shall be added ta the quota for Norway permitted in accordance
with paragraph (1) of this Article, 40,000 metric tons which repiesents the
estimated average annual catch of coastal cod, which for the purposes of this
Agreement is deemed to be a separate stock.
Article III
(1) If the total catch of North-East Arctic (Arcto-Norwegian) cod taken
by countries other than the Contracting Parties exceeds 50,000 metric tons,
the Contracting Parties shall, assoon as possible, review thz operation of this
. .
1 See pp.455-503supro,and II,pp. 473,475.Agreement. Any Contracting Party may, after such review, withdraw from
this Agreement by giving notice in writing to the other parties.
(2) The Competent Authorities of the Contracting Parties shall request
the Competent Authorities of other countries fishing in the area to supply
them with regular and up-to-date statistics of their catches of North-East
Arctic (Arcto-Norwegiarl) cod through the medium of the North-East
Atlantic Fisheries Commission.
Article IV
The Competent Authorities of each Contracting Party shall each month
send Io the Competent Authorities of the other Contracting Parties a report
on their total catch of North-East Arctic (Arcto-Norwegian) cod for the
previous month. These reports shall be reviewed jointly at any time at the
request of a Contracting Party.
Article V
,1. If a Contractine Partv exhausts ils auoia before the end of 1974. it
may nevertheless permit ifs nationals and vessels to continue to fish provided
that it limits such vermission to fishing usine gill nets, long lines and hand
lines and that it first eives notice in kitin; - of ifs intention to the other
Contracting Parties.
(2) On receipt of such notice either of the other Contracting Parties may
withdraw from the Agreement by giving notice in writing Io theother parties.
Arricle VI
Noihing in ihis Agreenient \hall ali'cct the rights. preseni or future claims
or legïl viewi of ihe Contraciing Partier in regard IO ihe n<itiireand exicnt of
fisheriesjurisdiciion or ihe princifles of future çaiçh Iiniitaiioii scheniçs.
Article VI1
This Agreement shall enter in10 force on the day on which it is signed by
al1 three Contracting Parties. This Agreement shall remain in force until
31 December 1974.
ln witness whereof the undersigned, being duly authorised thereto by their
respective Governments, have signed this Agreement.
Done in triplicate at London this 15th day of March 1974, in the English,
Norwegian and Russian languages, each text being equally authoritative.
For the Government of the United Kingdom of Great Britain and Northern
Ireland:
(Signed) [lllegiblel
For the Government of the Kingdom of Norway:
(Signedl [Illegiblel>
For the Governinent of the Union of Soviet Socialist Republics:
(Signed) illlegible] FAROESE AGREEMENT
Catches of Cod and Haddock Qiiota
19.52171 1967171 1969171 ('000 tons)
(average) (average) (average)
Faroes
U.K.
Others
NORTH-EAST ARCTIC AGREEMENT
Average Catch of Cod(8000 tons) Quora (tons)
1963168 1969172 1974
(6 years) (4 years)
Norway 205 370 242,850
USSR 310 290 179,500
United Kingdom 108 -137 - 77,650
Total for contracting --
parties 623 797 -500,000
Others ' - 9 - 64
Total for al1countries 632 861
-. -
Sce pp. 455-456supro.and II,p. 475.
Plaidoiries sur le fond du différend soumis par le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord - Procès-verbaux des séances publiques tenues au Palais de la Paix, La Haye, les 25 et 29 mars, et le 25 juillet 1974, sous la présidence de M. Lachs, président