Plaidoiries sur la compétence de la Cour - Procès-verbaux des séances publiques tenues au Palais de la Paix, La Haye, le 8 janvier et le 2 février 1973, sous la présidence de sir Muhammad Zafrulla Kha

ORAL ARGUMENTSON JURISDICTION

OF THE COURT

MINUTES OF THE PUBLIC SITTINGS

heldor thePeacePalace, TheHagrie,
on8 Janr,aryand2 February 1973,
PresidenrSpresidingmadZafrrrlla Khan OPENING OF THE ORAL PROCEEDlNGS

The PRESIDENT: The Court meets today 10 examine the question of its
jurisdiction to deal with a dispute between the Federal Republic of Germany
and the Republic of Iceland concerning the extension by the Government of

lceland of its fisheries jurisdiction. In these proceedings. instituted by Ap-
.~icati~nt filed on 5 June 1972.-.he Federal Reoublic founds the iurisdiction
of ihc Co~rt on Artcle 36. psr:!gr3ph 1. .>fth'. Coiirr's ~tiiruic,'snd on iin
Lxihange or Note5 betueen the Go\ernrnent oi'ihe Fedcral Kepi~hl~çaiid the

Go\crrimcnt of Iceland Jated 19July 1961.Thc r\pplicani a\ki the Court 10
decl~re thît lieldnd's claim Io extend lis e\clo~i\e fiiherict j.irirdiciion Io ii
7onc of 50 naiitic~l iniles arouncl Iceliiid hai iio basis in interiiation~l Iaw,
and could not therefore be opposed to the Federal Repiihlicand to its fishing

vessels.
By an Orderzdated 18 August 1972, the Court decided that the first plea-
dings should be addressed to the question of the jurisdiction of the Court to
entertain the dispute. By the same Order, the Court fixed 13October 1972as

the tirne-limit for the Memorial of the Federal Republic of Germany and
8 December 1972as the time-limit for the Counter-Memorial of the Govern-
ment of Iceland.
The Memorial 3of the Federal Republic was duly filed within the time-limit
fixed therefor. No Coiinter-Mernorial has been filed by the Government of

Iceland; the written proceedings being thus closed, the case is ready for
hearing on the issueofjurisdiction. In a telegram4received in the Registry on
5 December 1972. the Minister ~o~ Foreien Anairs of lceland reiterated that
no bJ>isehisted for the Court tueucrci\c juriidiction in thccasc. and informcd

the Court th31 the po5ition of thc Governinent of Iceland uïs unch;ln~eJ.
The Federÿl Kepublic of Gernwny. in reliance on Arti~le 31. p:ir:igr:iph 3.
of the Stdtute, iiotified the Court of itb rhoi~.c of 3 person io s.1:is juJsr oil
hors in this c3w. NOohjciti~n 10this ni15 111aJc by the Governineni of Iceland

within the time-limit fixed for that Government to niake ils views known, in
accordance with Article 3 of the Rules of Court.
However, the Court, after deliberating on the question, is unable to find
that the a. .intment ofa iude. adIroc bv the Federal Re~~iblicof Germanv

in this phase of the case u,>~lj he aJiii.jrihle. l'hi.; dc~s on ;iil'cit\ onl) the
prcsent phaseOCthe proceeJing%,that ibIO sa) ihst ;<m.'crn.ng lhcjuri\Ji~ii<ln
of the Court, and does not inany way prejudice the question whelher, if the
Court finds that it hasjurisdiction, ajudge adhoc might be chosen to sit in the
subsequent stagesof the case.

I note the oresence in Court of the Agent and counsel of the Government
of the ~ederal Republic; the Court has aot been notified of the appointment
of any agent for the Government of Iceland, and I note that no representative
of that Government is present in Court.

The Governments of the United Kingdom and Senegal have asked that the

1 Seepp. 3-11, supro.
2 I.C.J. Reporrs 1972, p. 188.
3 Seepp. 65-96,supra.
4 Seep. 404, infra.
5 See p. 420, infraand I.C.J. Reports 1973,p. 51. OPEh'lNG OF ORALPROCCEOINGO SNJURlSDlCTlON 121

pleadings and annexed documents in this case should be made available ta
them in accordance with Article 44, paragraph 2,of the Rules of Court (1946
edition). The Parties having indicated ihat they had no objection, it was
decided to accedeto these requesis.

In accordance with practice, the Court decided, with the consent of the
Parties, that the pleadings and annexed documents so far filed in the case
should be made accessible to the public also, pursuant to Article 44, para-
-.aoh 3. .f the 1946 Rules of Coort. wiih ellèct from the ooeninc! of the
prcicnt or31 prs~ceJirigi. The Coiirt f.irtlirr dea,led thst :!ni.~thcrofcom-

i,,i,nicllions1.iJJrc.;;rd io the Court h) ihe G,ncriiiiicnt i~f Iccl:inJ \htiuld
il;<i hc m-<dcaccsss.hlL' 1s ihc nuhli: :IIihis lime. Tlie Parties h;i\e .nd:c.iicd
that they have no objection to ihis course.
1 declare the oral proceedings on the question of the Court's jurisdiction
open.

1 Seepp. 380, 388, 399,404 and 420. FlSHERlESJURISOICTION

ARGUMENT OF MR. JAENICKE

AGENT FOR THE COVERNMEN OF THE FEOERAR LEPUBLIC OF CERMANV

Mr. JAENICKE: Mr. President, Members of the Court, when 1 had the
honour, on behalf of the Federal Republic of Germany, to address the Court

in thi5 case,in the rnatter of Our Request for interim protectiot,on 2 August
19722, 1 had regretted that the Government of rceland had not felt able 10
aooear before the Court in order to defend ils case. and 1 had further ziven
expression to Our hope that the Government of ~cela'ndwould, al a lateritage
of the proceedings, reconsider ils decision and take part in the proceedings.

However, the seats reserved for the lcelandic delegation have again remained
empty today. The Registrar of the Court has informed us of a telegram3
received by the Court from the Minister for Foreign Anairs of lceland on
5 December 1972. in which the lcelandic Minister declared that the earlier
decision of the lcelandic Government not to appear before the Court has no1

been changed. Under these circumstances, the Government of the Federal
Re~ublic of Germanv has no other choice than to ask the Court 10 vroceed
unier Article 53 of icsStliiuic. Under ihis Article, whcnctcr.iplirly dses no1
appedr bcîore the Court. ur fails to defend iticase. the uther pariy ma) ihcn

usk the Couri to decide in fa\,i)ur of iis cl~iin. nrovidcd the Court hai slit:ified
itself that il hasjurisdiction anthat the claim is well founded in fact and in
law.
By Order4of 18August 1972 the Court has decided that the first pleadings
in this case should be addressed to the question of the jurisdiction of the

Court. In ils Memorial, filed with the Court on 13October 1972, the Govern-
ment of the Federal Republic of Germany has put forward al1 the necessary
arguments to satisfy the Court that there is a clea: and solid legal bdsis for the
Court's jurisdiction in this case. In conformity with the Court's directions.
my oral argument of today will equally concentrate on the question of juris-

diction.
By no1 appearing before the Court the Government of lceland seems 10
deny even the competence of the Court to decide on ils own jurisdiction.
However, according 10 Article 36, paragraph 6, of the Statute of the Court
il is undoubtedly within the competence of the Court to decide on ils juris-

diction. This competence flows directly from the Statute of the Court. to
which lceland is a Party, and is not conditioned by a prior specific acceptance
of this competence by the parties. The Federal Republic appreciates the
decision of the Court to deal with the jurisdictionalissue separately before il

will enter the merits of the case. A judgment of the Court in this phase of
the proceedings which, as we hope, will affirm its jurisdiction, might, by ils
authority, eventually persuade the Republic of lceland tojoin the proceedings
on the merits of the dispute.
The Federal Republic of Germany has already, in its Memorial,expounded

in much detail that the jurisdiction of the Court in this case cannot well be

1See pp. 23-31,supro.

2 Seep. 44, supra.
J Seep. 404, infra.
I.C.J.Reports 1972,p. 188. ARGUMENT OF MU. JAEN~CKE 123

disputed. 1do not wish to bore the Members of the Court by repeating al1the
arguments which have been put forward in the Memorial; I shall rather
confine myself to concentrating on those points of the matter which, in my
view, are the most relevant to the jurisdictional issue. 1 should, however,

make it clear that al1arguiiients which we have advanced in Our Memorial,
in particular those argtinients which I shall not repeat here, are fully main-
tained.
The jurisdiction of the Court to entertain the Applicütion of the Federal

Republic of Germany in the prcsent case is based on paragraph 5 of the
Exchange of Notes between the Government of the Federal Republic of
Germany and the Government oflceland, dated 19July 1961.This paragraph
reads asfollows:

"The Governnient of the Republic of lceland shall continue to work
for the ininlementation of the Althine. Resolution of 5 Müv 1959renar-
ding the extension of the fishery jurisdiction of Iceland. ~owever, it shall

give the Government of the Federal Republic of Germany six iiionths'
notice of any such extensioii: in case of a dispute relating to such ex-
tension the niaiter shall. at the request of either party, be referred to the
International Court of Justice."

That is the wording of this pariigraph.
I should recall in this connection that the resolution of the Althina. that is
the lcelandic Parliainent, to whicli paragraph 5 refers. comniitted theGovern-

nient of lceland to obtain recognition of Iceland's alleged right to a fisheries
zone coverine the waters over the entire continental shelf of Iceland. In the
lin:il pxragraph of the Noics c\changcd it \rai ehprcrrli ,tipulatcd ihat the
Sutci e.\ihliigcJ .'oii~t~tutcd ;in agreriiient beiuccn the iuo Gorcrntiie~it>.
2nd in ~ara~ranh 7 of the Notes e~ch;iiiiicil the Cio\,ernnient of the Kenuhlic
. -
of lceland uniertook to register this-arrangement with the ~ecritary-
General of the United Nations, in accordance with Article 102ofthecharter
of the United Nations. The Notes exchanged were so registered on 27 Sep-
tember 1961.
The Federal Republic of Gerniany is of the opinion that this agreement is

stillin force and applicable between the Parties.
There cdn be no doubt that paragraph 5 of the Exchange of Notes of 19
July 1961constitutes an international agreement by which the I'arties to this
caseconferred iurisdiction on the Court in the senseof Article 36. ~araxra.h -
1.of iiiSi:iiiiie. :ind ih;ilna* ;ilso ilic inientii~n ofihe l';tic. tu coiifCr such

j.irirJ~ciiun iipsn ihe C,ii.ri. Tlicrc i.iiif.irihcr he [IOJoul?i ihat the Ji~piite
\.ibiiiiticdICItlic Couri h\ ihc ~\nnli~;~iii~nof the I;cdcrsl Kcuubl:c sf Ger-
iiiany of 5 June 1972 is éxactly ihat kind of dispute to which paragraph 5
refers namely a dispute relating to the extension by lceland of its fisheries

jurisdiction beyond the 12-mile limit.
1need not repcat here al1that has already been sdid by the Covernment of
the Federal Republic of Gerniany in this respect in its Memorial, and also
in itsApplication of 5 June 1972.1shall later show that the submissions in the
Application of the Federal Republic of Germany of 5 June 1972keep within
the limits of the jurisdiction of the Court as defined in pdragraph 5 of the

Exchange of Notes of 1961.
As the Government of lceland cannot well deny that the Parties have, by
the agreement contained in paragraph 5 of the Exchange of Notes of 1961,
conferred jurisdiction on the Court, al1the arguments which the Government

of lceland has hrought forward against the jurisdiction of the Court arecalculated to throw doubts on the validity and continuingapplicability of this
agreement. In my following statement 1 shall deal mainly with these argu-
ments of the Government of lceland in order Io show that the jurisdiction
of the Court in this case rests on a valid agreement which still governs

the relations between the Parties. and that any doubts with respect to the
validity and continiiing applicability of this agreement have no legal found-
ation.
Before dealin(! with the various arguments which have been broueht for-
ward by the Goiernnieni of Iceland against the validity and app~icabi~ityof

paragraph 5 of the Exchange of Notes, 1woiild liketo make somecotnnlent on
the ~rocedurai relevance of those arguments. becaiise they have not been
plcabcd bcfure ihc C:<iiiri in ihc pruperioriii III i:tct. thcrt,nu foriii.il iiiution
by the tio\crniiicnt of Icïl.ind befure the Cuiiri uhtzh could hc qiialificd :i,a
prc1imin;iry aibjcction io ihc jiirisdi~iion of the Ci~urt. nor ha\c the *rgiimcntr

put fairtiard hy ihc Co\crniiicnt of Iceland in ils\ariuiis coniiiiunic~tiun, io
ihc Couti been supplcnicntcd hy the ncxssary ixis and ciide~icc Ho\#e\er,
Arilcle 53 of the Siatiiiï requirc, the Cuiiri Io s;iii\f) ilself ihitit lias iiiri,.
diiiiu~i. and in ordcr IO g1i.cthe Court .ironiplctc p:ct~re in ihi, reipeci the

Governnivni of tlie Fedcr:il Kcpuhlic of Germans h.ti. in 11s,\pplic.iiiun. in
its request for interim measures of ~rotection and in ils ~cmorial. submitted
al1faits and documents which il considers to be relevant 10 the queifion of the
Court's jurisdiction, and in particular to the question of the validity and
continuing applicability of the 1961Agreement.

In the docunientary evidence which we have subinitled to the Court there
appear also the various argiiinents which have bcen brought forward by the
Government of lceland, either in ils public statenients or in ils communi-
cations to the Government of the Federal Renuhli~.of Gernianv. aeains.."he ~ ~
validiiv :tnd appl~cîbiliiy of the j~d~iial scitlcmcni claiise contained in pdra-

graph 5 of ihc E~ch;ingeoi Note, 01 1461.II (5for the Court in deadc !vlictlier
and to what exteni, iÏwill consider il necessary and proper io deal with any
such argument which has no1 formally been pleaded before the Court. It is
for this eventualiiy that 1 shall comment on these arguments. 1 hope Io
convince the Court thüt these arguments are wholly unfounded and 1 hope

ta dispel any doubts as to the Court's jurisdiction in this case.
The arguments with which the Government of lceland has attacked the
validity and applicability of the agreement contained in paragraph 5 of the
Exchange of Notes have varied from time io tiine and Lirepartly inconsistent

with each other. The main arguments which have been brought forward by
the Government of lceland are the following: firsr, that the Exchange of
Notes of 1961 had taken place "under extremely dificult circumstances";
second, that the abject and purpose of the provision for recourse to judicial
settlement contained in the Exchanae of Noies of 1961 "had been fullv

achieved", and that this provision had therefore to be considered as "tei-
minated"; third, that the agreement contained in the Exchange of Notes of
1961 was "not ofa permanent nature", and folirrlr, that since the conclusion
of the agreenient, contained in the Exchange of Notes. circumstances had
changed. 1shall deal with each of these arguments in turn.

To thefirsi argument: by alleging that the Exchange of Notes of 1961 had
taken place "under extremely difficult circumstances", the Government of
Iceland seems 10 question the initial validity of the agreement contained in
[bat instrument. In dealing with this argument 1can be rather brief. 1should
cal1 the attention of the Court to the fact that the Government of Iceland in

its communications to the Government of the Federal Republic of Germany ARGUMENT OF IR. JAENICKE 125

did no1 rely on this argument when il declared the agreemeiit of 1961 ter-
minated, neither in its aide-mémoire of 31 August 1971 nor in its aide-mé-

moire of24 February 1972: this argument appears with respect to the Izederal
Republic of Germany uirlyin the letter of the Minister for Foreign Afïairs of
lceland of 27 June 1972 addressed tu the Court. This argunient seems to
iniply that the consent of the Government of lceland tu the provisions con-

tained in the Exchangc of Notes in 1961had nut been given of ils own free
will. However, the Governinent of lceland hassu far failed tu explain tu what
difticult circunistances this vagiie forniula was meant to refer; nor has the
-o-erninent of -~ela~d~ ~ ~ ~~ ~nti~ ~ ~ ~ ~fact which c~u~d have shown to

wliat kind of pressure the Governnient of Iceland had been exposed when it
aereed with the Government of the Federal Republic of Germany on the
tcrms of the Exchange of Notes in 1961. That s;ch an allegation lacks any
foundation has already been evidenced by the fact that the Government of

Iceland in al1 the years after 1961 had never challenged the validity of thé
aercement embodied in -his Exclianee ~ ~Notes vis-à-vis the Governinent of
the Federal Republic of Germany. On the contrary, the Governnlent of

lceland was evidentlv rather satisfied with the contents of this açreement, by
which lceland obtaiied recognition of an exclusive 12-mile fisheiies zone at a
lime when such an exclusive fisheries zone had not yet been generally re-
cognized.

If the Government of lceland had really considered the agreeiiierit em-
bodied in the Exchünge of Notes as invalid oh iliitiu, it would have been quite
inconsistent wiih such a position tu declare in its aide-niéinoire of 31 August
1971that, in the opinion of the lcelandic Government. the object and purpose

of the agreement had now been fully achieved. Equally, the lcelandic Parlia-
ment in its Resolution of 15 February 1972 requested the Icelündic Govern-
ment ta inform the Government of the Federal Republic of Germany that,
because of the vital interests of the nation and owing to changed circum-

stances, the agreement of 1961 was "no longer", and 1 stress these words
"no loneer". ao~licable. This statenient makes sense onlv if the lcelandic
Parli.iiii~iit \;ar;cd frt~m ihe position ih;it. iinttl ihen. ihe :,grcenieni of 1961
h:iJ bcen \>liil and applicable bctuceii the I'ariie\. These 1;el;in~lic ~taiemerii~

\roiild alrelds 3uflice ti)disocl snv doubi, ;i~ IOthe initt;il i.alidit\,ihe 1961
agreement. h'evertheless, 'the Governnient of the Federal ~epublic of
Germany has taken pains to submit al1 relevant facts an<ldocuments about

the history of the Exchange of Notes of 19July 1961tu the Coiirt, in order tu
show that there was no iindiie pressure of any kind froiii the side of the
Government of the Federal Repiiblic which might have indriced the Govern-
ment of lceland to concliide this agreement against ifs bvill. The Coiirt will

allow me Io refer in this respect tu paragraphs 9 to 24 and 35 to 41 of the
Memorial of the Federal. Republic.
The history of the 1961 Agreement, which 1 need no1 repeat here, is plain
evidence of the fÿct that this Aereement had been nerotiated between the Iwo
-~~~
Governments on the basis of perfect eqiiality and freedoiii of decision on
both sides. 1 shall only point to some important facts which clearly evidence
the atmosphere in which the negotiationsin 1961were conducted:

Firsr, from I September 1958, the date on which the lcelandic Governnient
orohibited al1foreien fishine within the 12-mile limit. until the date on which
ihe Agreement conÏained in the Exchange of Notesof 19 July 1961 entered
into efïect, no incident occurred becausethe German trawler fleet voluntarily

absrained. on the reconimendation of the Government of the Federal Re-public, (rom e\ercising their trsd.tional firhinp right> in the 12-inile ?one In
order to prescrve itsrights. the FeJeral Rcpubl.c resorted only 10 dipli~iii;itic
orotcsts. Th,s attituJe of the FeJer~l Keriiiblic and of ii~ iri\\ler lleet ~.o~ld
not possibly produce any pressure on the'Government of Iceland.

Second, the Governnient of the Federal Republic needed nearly three
years to persuade the Government of lceland 10 negotiate a settlenient
on the fisheries question. In the meantime, the Federal Repiiblic voluntarily
sacrificed ils fishing rights within the newly established Icelündic fisheries
zone where German fishernien had until then been fishinr -raditionallv. If
anything ult~niately induccd the Cio\crnnicnt of IiïlanJ 10 ncgi>i~:itea scttlc-

ment of the fishcricq quoiion in 1961. ithad certainly no1 bccn the 1-eJeral
Government of Germany but rather the state of current international Iaw
at that time, which did no1yet allow a coastal State to claim exclusive fishing
rights up to 12 nautical miles without regard to traditional fishing rights
exercised by other States in these waters. It was in Iceland's own interest to

obtain recognition of ils policy by the Federal Rcpublic of Germany.
Third, the Federal Republic had to olTer special economic concessions in
order to get a settlement on the lines of the Exchange of Notes of 1961. In the
negotiations the Government of the Federal Republic had to give special
assurances Io the lcelandic Governnient with respect to the import of Ice-
landic fish into the Federal Republic andwith respect to financial and techni-

cal help for the development of the Icelandic industry. That had to be done
before agreement on the settlement of the fisheries question was reached.
These assurances wereembodied in an aareed memoranduni which was han-
ded 10 the Icelandic Go\,ernnient after the signiitg of the E.\ihxiigc of Notes.
The menioranduin is rcprod.iccd in Anne, H to thc leiiior~.il of the 1:cder;il
Republic of 13October 1972

I therefore respectfully subniit that al1 these facts lead to the conclusion
that there is no valid ground to question the validity of the agreenient
contained in the Exchange of Notes of 19 July 1961 and that consequently
the Parties have. by this agreement, validly conferred jurisdiction upon the
Court.

To the srcot~d argument: 1 shall now deal with the contention of the
Governnient of lceland that the object and purpose of the provision for
judicial settlement contained in paragraph 5.of the Exchange of Notes had
been fully achieved and that, therefore, this provision had to beconsidered-l
quole the words used in the lcelandic Governnient's aide-niémoire of 24 Fe-
bruary 1972-as being "no longer applic~ble and consequently terminated". .

It has. however. never become ouite clear whether this stateiiient and the
simila; statemen't already made ir; the aide-niémoire of 31 August 1971 were
to be understood in the sensethat paragraph 5 had become inapplicable, or
terminated i... isrc.or in the sens; thai the Governnient of lceiand therebv
purported 10 exercise an alleged right to denounce the agreement contained
in this paragraph. As the Goveriiment of lceland is not represented here, we

will no1 be able to get some enlightenment in this respect~from the Govern-
ment of lceland about the exact juridical meaning of its statqrnents. We may,
however, leave this question in abeyance because in any case it cannot be
maintained that the object and purpose of paragraph 5 of the Exchange of
Notes of 1961 which provided for recourse to the International Court of
Justice had already been achieved.

The Government of lceland has so FarFailed to define in any detail what it
considers to be the object and purpose of paragraph 5 of the Exchange of ARGUMENT OF MR. IAENtCKE 127

Notes. Some indication of what the Government of lceland had in mind may
be found in ils aide-méinoire of 31 August 1971. There the Government of
lceland stated that-

"ln the period of ten years which has elapsed, the Government of the
Federal Repiiblic of Gerniany enioyed the benefit of the Iceliindic
. .~
C;,ncrn~iient'~ pc>11:)ta thc ciïcct 1h.11iurtlicr e~tc~i~~~o~fiithe l~n~it<if
c\?lusi\e ti\licrics j.iiii,li<iiN<>LILIhe ~,l~.e,l .n .thcy.inic T.>r .irc:i-
\<in.,blc, :ind cq.iit:iblc i>criuii" (:\iinli:aof tlic FcJcr;il Kcpiihli~ of
Gerniany dated 5 June '1972.~nnen'~, p. 15.s~~pro).

Siiiiilarly,in a statenient before the lcelandic Parlianient the Prime Min-
ister of lceland said chat the 1961 agreenients with the Fcdcral Republic
and the United Kingdoin "had iilready attained their niain objective ils both

nations had fully benelited by the period of adjustment which they were
given by the Agreements". We have quoted this statement ai page 75, siipro,
of Our Meniorial.
These statements seeiii to indicate that in the view of the Government of
lceland the only object and piirpose of paragraph 5 of the Exchznge of Notes

had been IO give the Federal Repuhlic of Germany sonie years' time within
which lceland woiild abstniii froin clainiing a wider fisheries zone. The plain
juridical meiining of this view woiild be thai the arrÿnscment conloined in the
Exchange of Notes of 1961 hacl been concliided for a certain liiiie only.

without; hoivever, any indiciilioii as to how long this time sho~ild bc. Siich
an interpretation of the Enchange of Notes of 1961 is iintenable. It isin flat
contradiction Io the teriiis of ils provisions and to the intention of the
Parties whcn thev concluded this ürireemcnt in 1961.
The terms of Gragrüph 5 of iheËxchange of Notes, if they are iinderstood

in their natural nieüning und in the content of the other provisions of the
Enchançe of Notes, lead to qiiite the opposite interpretation. Il is evident
froin the ternis of paragriiph 5 that the Parties anticipated that lceland was
determined to piirsue a policy which t%,ouldseek recognition of an exlended
fisheries zone covering the wholc continental shelf. In view of this situation

the Parties provided that in case siich an extension would lcad Io a dispute
between the Parties, each Party tiiight then refer thc dispiite Io the Interna-
tional Coiirt ofJustice. Il was no[ the object and purpose of thaf provision to
nrevent the Government o~ Ic-land for some time from extendinri its lisheries

Grisdiction beyond the 12 miles. lt could do so at any tiine. an3 had in füct
done so as soon as it considered such action appropriale and in its interests.
It was rather the object and purpose of paragraph 5 to provide for jitdicial
scttleinent between the Parties of any dispute that might ensite froiii such
action of lceland in accordance with Article 33 of the Charter of the United

Nations and to ensiire that any lurther extension by Iceland of ils fisheries
jurisdiction would be made in harmony with international law. There is no1
the slightest indication in the tex1 of paragraph 5 that the Parties intended
that procedure to apply .only for a limited period of time. nor was such a
limitation ever mentioned in the course of the negotiations which led to the

Exchange of Notes in 1961.
1 shall no1 reoeat here al1 the arruments which the Government of the
Federïl ~c~iibl/~ lias 3diançcd in support ,if thiq interpret~tion in il< Mc-
nitirid1 :ind Im.]).rcrpccif.illyrefcr in ihir respect IO p.xr;igrüph$ 42 Io 50 <if

our Memorial. Neverthcless, il inight be useful to stress some points which,
in my view, are particiilarly relevant for the interpretation of paragraph 5 of
the Exchange of Notes of 1961: 128 FISHERIES JURISUICT~ON

F;r.rf, paragraph 5 does no1 contain a lime-liniit for ils application, nor

iiiav such a titiie-liniitbe iniolied in view of the terms and the meaninn of this
1 shall demonstrate this in soine detail. The provisions cintained
in the Exchaiige of Notes can be classified into two categories: on the one
hand. WC find orovisions which bv their verv ternis were clearlv of a transient
characier. Imean those provisions, as paragraphs 3 and 4, which allowed the

fishing vesselsof Ihe Fcderal Rcpublic of Germany to fish for a transitional
period in the outer parts of the I?-mile limit. ~hese provisions were to expire
al a fixed date, naiiiely 10 March 1964.
On the other hand, there are those provisions which are capable of being
üpplied for an indefinite tinie and which are indeed still applicable today; 1

iiieari those provisions, as paragraphs I and 2 of the Exchange of Notes,
which provide for the defacto acquiescence by the Federal Republic of Ger-
inanv in an exclusive fisherv zone of 12 iniles and in the establishtnent of
certain rien,baselines from which this zone is measured. The same is true for
paragraph 5 which obliges lceland to observe certainprocedural requirements

in case it would forther exteiid ils fishery zone beyond the 12-mile liniil.
While lceland had the benefit of the de factorecognition of the 12-mile
lishery zone already for more thaii ten years after 1961. the obligation for
lceland to observe the procedurc prescribed in parügraph 5 has not become

operalive ~iiitil now. It cannot possibly be argued that these provisions. and
in pürticular paragraph 5, were now devoid of any purpose.
In view of the fact that the Parties fixed a definite lime-liniit for the tran-
sitional régimeprovided for in paragraphs 3 and 4 of lhe Exchange of Notes,
but did not provide for a tiiiie-limit with respect to those provisions which

were ca~able of indefinite aooli. .ion. ilwolild reauire stronrz a-d cogent .
reasons to assumeail i~nplied intention of the Parties that the last-mentioned
provisions should remain applicable only a few years more. However, no
siicli reasonscün be found. On the contrary, il would be a rather strange result
if paragraph 5 would become inoperative at the very inoment when ilcould be

applied for the first tirne.
Srcuiirl. .arazr. . 5 of the Exchanze of No-es of 1961 is exclusivel~ a
lpr~~.c~l.#~.p,lr~?v.,i.~ii ILI.l 11.1crc~tts.in .?hl~g<,t~,ufoi r l:cl.tr~J1,) Ic.x\c the
I!i~i.i. ,>II>ii\hcr c, ,<t~ic, f~h:i~~gs.I1,) the bcnciii oi ihs lKcJ<r.,l l<cpi~I>l~oi
(icroi.tn\. Tlw l~~l:~n~l~ :tr~~t.ni:~~i Ih.11111sFcilcr.tl Kep~ihli~ h:id het~etitcd

luii~<iiu.~gh lrd 11liel.ii.l'\pc~li;? 11.111.)~\iciid itr ii,hcr 5> /<>ii~be?i~n,l 111s
12-iii Is Iiiii\ritliln the I:ijttco \<.irs i\thcrci,)rs hc,tJe 111spti cil.Ille jolc
piiroose of oÿrasraoh 5 of the Exchange of Notes was to create for lceland the
obligation io obey'a certain procedu& in case it would think it appropriate

and periiiissible to exlend ils fisheries zone beyond the 12-mile limit. Thcse
procedural requirements were: first, to give six inonths' notice of stich action
to the Federal Republic of Germany-which Icelaiid in fact properly did by
ils aide-mémoire of 31 Augrist 1971 and second, to have ils action rcviewed
by the International Court of Justice in case the legality of ils action, under

internatioiial law, would be disputed by the Federal Republic.
Paragrüph 5 of the Enchange of Notes of 1961 did not provide for a time-
limit in the sense that lceland would be barred from extending ils fisheries
jurisdiction until a certain date but would be free to do so after this date. The
provision for recourse to the lnternational Court of Justice was intended to

ensure that lceland woiild entend ils fisheries zone in harmony with the
developnient of international law. It was left to the initiative of the Govern-
ment of lceland when it would consider such action appropriate and jus-
tified under international law. If lceland did abstain from extending ils AHCUMEN'r OF MR.JAENICKE 129

fisheries jiirisdiction within the teii years after 1961 lceland did so no1
becauseofany lime-liiiiit contained in this respect in paragraph 5, but rather

because lceland probably rightly realized that such action coiild not expcct
international recognition undcr international law at that lime.
As it was left to the initiative of lceland what date it i\,ould choose for the
intended extension of ils fisheries jurisdiction to svhich the procedural

requirements contained in paragraph 5 shoiild apply, any reasonable inter-
rre~afion of this orovision iniist corne to the concliision that it was the inten-
lion that these procedural requirements should remain applicable as long as
lceland remained in a position 10exlend ils fisheries jurisdiction.

~ ~vi~ ~of the foree- -n considerations I resoectfullv submit that it is im-
possible to assuiiie that ptiragraph 5 of the Exchange of Notes of 1961 htis
already fulfilled ifs object and piirpose and paragraph 5 shoiild therefore be
r...i. -.d as terminated.

To the rhirdargiinient: I shall now deal with the argument of the Govern-
ment of Icelünd thal the agrceiiient contained in paragraph 5 of the Exchnnge
o.. .es of 1961was notoFa oermancnt nature. BV thisar~ument the Govcrn-
nient of lceland sccnis 10 iniiniate that the agrkment, àlthoiigh it did no1

coiitain an express claiise allowiiig ils deniinciation, might nevertheless be
i..~~inated unilaterallv after a certain tiiiie of ils duration.
The question wheiher an international agreement which contains no pro-
vision concerning its termination may nevertheless be denoonced by a pnrty

after a rcasonabi tinie had becn extensivelv debated in the International Lÿw
commission when it drafted the articles in the Law of Treaties, aiid ithad
ar-in been debated at the Vienna Conference on the Law of Treaties in 1969.
We have given a fairly detailed account of thesediscussions in paragraphs

52 to 64 of Our Memorial, 10 which I may refer. The outcome of these dis-
cussions has beenArticle 26 of the Vienna Convention of the Law of Treaties.
According 10 Article 56. an international agreement which contains no pro-
visions regarding ils terniinaiion. and which does not provide for denun-

ciation, is not subject Io denunciation unless as a first alternative il is estab-
lished that the oarties intended to admit the ~ossibility of the denunciation or,
:is a jccond :iltcrnati\e. ;iright ofilcniincidtion ~<>uldbc iiiiplicd by the n:itiire
i h raty \Vhilc ihc firbt ;iltrrii.tii\is ccridinly 111<oiiiormily with ihc
cxiht~n~rulcs of gcncrll iotcrn:,t.on:il I;in, ,tih rathcr Jui~hif~l !\hcttwr th'.

iiatilre<if:<nigrccnicni ;ilone c;iii be rc~irlltd a, a i~iilisici~t hl; s idcon\iruc
an iniplied right to Jr'noiin~e the :igreeliiciii tinildtcrally.
The opinions on this issue werc divided, and the present formulation of
this part of Article 26 wasadopted only by a very narrow majority. Il niay,

therefore, be safer Io assume that the nature of a treaty is only a subsidiary
means of interpretation in order 10 ascertain the otherwise iindisclosed in-
tention of the parties, provided the intention of the parties may be clearly
inferred from the nature of the trcaty.

Fortiinately, for the purpose of the present case,we may leave this question
in abeyance. Even if we were allowcd to infer a right of denunciation froni the
nature of the agreement alone, no other result woi~ld follow in the present
casebecauseas Tÿr as the agrceiiiçnt contained in the Exchange of Notes, and

in uarticular in so far asuarairraoh 5 is concerned. it can neither be established
th& the parties intended'thaÏonéof the partiesshould be allowed 10terminale
the agreement unilaterally, nor is it possible to infer such a right [rom the
nature of the agreement.

The main reason which forbids such an interpretation is the simple facl
that the judicial settlement clause in paragraph 5 of the Exchange ol' Notes has no1sre~ted 2x1 iiidcfiniic or perperu~l <iblig.iiion iih,<ti iiiighi be subje;t
Io sonie re;i>.)nsblc Iiiiiiiatiun iiith rsrpctdit\di.rtion. II 11.1rsliher crcaied
ü definitc ohligaii.~n. ihc ict~pcanu iIiir;iiiuiui irhich .ir; :ilrex.iy I.niite(l by
tir ohje~i. A .inil.iler.il rlght oi JCIILI~CI:II1111y héiiii~lied fr~iiii lhe objc;t

i~fthe 1rc;iiy <>iilyin iliose \rhere ihc pdrle,. cjihcr hy iii.i.i\crtr.n..e or
for some other special reason, have omitred to regulate the duration orthe
obligation under the agreement, and where il could reasonably be assumed
that both parties were of the opinion that the agreement should not last
indefinitely.

However. in the caseof ~ar.erao- 5ro~~t~e-~~c~anee of N-~e~ ~f 1961there
was simply no need to make provision foi the duration of the agreement, or
for its denunciation, becausethe iudicial settlement urocedure prescribed by
paragraph 5 was destined for a certÿin factual situation which it was anti-

cipated would arise some time in the future. The obligation of lceland to have
its action eventually reviewed by the International Court of Justice was to
become operative if, and when, lceland put into efïect its declared intention
to extend its fisheries jurisdiction beyond the 12-mile limit, over part of the

whole of its continental shelf. It could not be foreseen, nor did the Govern-
ment of lceland indicate, when it would do so. Therefore, paragraph 5 of the
Exchange of Notes cannot be interpreted otherwise than that the obligation
to submit fo the jurisdiction of the InternationalCourt of Justice was to last
until that day on which theGovernment of lceland wouldthink it fitto extend

its fisheries jurisdiction beyond the 12-mile limit. Consequently, it would be
contrary to this object and purpose of paragraph 5 of the Exchange of Notes
of 1961to admit a right to denounce the agreement contained therein before
the factual situation had arisen which was envisaged to be settled by the

procedure prescribed by paragraph 5.
The Government of lceland had, in its letter 1 of 27 Iune 1972to the Court,
maintained that "an iindertaking forjudicial settlement cannot be considered
to be of a permanent nature". By this reniark the Government of lceland

seemsto allude to tiie discussion which took place in the International Law
Commission in 1963, when it had been suggestedby the Special Rapporteur,
then Sir Hurnphrey Waldock, that there were certain types of treaty which
might by their very naturewarrant an irnplicd right of denunciation. Treaties
of arbitration and judicial settlement were specifically listed by the Special

Rapporteur among those types of trezties. However, strong opposition was
voiced bv nuite a number of members of the International Law~ ~ ~ ~ Commission
against thehholesale inclusion of such treaties in a list of trealies which should
be subject to unilateral denunciation although the varties had not provided

for their termination.
In view of this opposition, the Article drzfted by the International Law
Commission which later became Article 56 of the Vienna Convention on the
Law of Treaties avoided nientionine anv-.ateeorv o-.treaties where a rirht of -
unilateral denunciation would ipso facro be implied. This discussion took

place in the 689th and 709th meetings of the International Law Commission.
We have aooted them in our ~emoiial at Dace86. srtora. But let LIS.for the

and that there niay be a casefor the presumption that the parties to a treaty
of arbitration orjudicial settlement which is silent in this respect intend that
treaty also to be terminable upon notice after a reasonable time. Even if we

1 See pp. 380-382, Nlfro. ARGUMENT OF MU. JAENICKE 131

would admit that, which I do not do. such a presuniption could not apply in
t~..nresent case~T~e reason is that Dararr.oh 5-.f the Exchanee of Notes-of
196; does not correspond to the normal type 2 treaties of arbitration and

iudicial settlement, where such a oresumption my ~ bej~istified. The treaties of
Iirbitration and iudicial settlemenl which the iiienibers of the International
Las, Coiniiiih>iun had in mind \rue trcaitcs dcsiyiied fur thc seitlcriicnt i>Ial1
<)l'Jisputei fur an indeliiiiic pertod of iinic Ii iiily be iinJcritand:ible

that States are reltictant to submit beforehand to some kind of arbitralion or
jiidicial settlement without knowing the subject-niattcr, the scope and the
circumstances of a future dispute which will have to be subiiiitted to such
procedure, and il may therefore be perhaps allowed to infer froin this practice

that Statesconsider such treaties as being 1errnin;ible after a reasonable time of
duration.
These considerations. however. cannot noolv to .. .conivroniissorv clause
cont;iine~l in paragraph 5 <~ithe t \change Noie; di' 1961.'l'hi, xgreciiiciit

rclates cinly to ihe specifii Ji~piitc ab~>iii ;ifurtlicr c\tens oii hy Iccland of 11,
fisheries iurisdiction. to a disoute which the ourties had alreadv anticioated
;II ihc time of the c<in~.liisionof the agrecmcni. Ilcrc. c;ich p:irty kne,r per-
fecily ucll whxt \v<iiild br the kind <iîdi>piiie ihut iroi.lJ hx\c icibc \iibiiiiticd
to the International Court of Justice. The scoDeof this obliration was clearlv

defined and limited to this specific kind of dispute. While th; indefiniteness0.f
the oblisations contained in general clauses of urbitration or judicial settle-
ment niight justify a right ofa contracting party to reconsider its comrnitment
after a rcasonable time, lhere is here no suchjusiilication for the Government

of lceland to withdraw from the well-defined and limited obligation to have
the intendcd extension of its fisheries jurisdiction reviewed by the Inter-
national Court of Justice. As the history of the Exchange of Notes of 1961
shows, the Government of Lcelarld was well aware that the main purpose
of the corn~romissorv clause contained in mriiern~h 5 wns to %ive the
. ..
Fe~ieril ~ciiihli: wni; .x\sur.i!i.c ih:it 2ny f,irincr e\lension h) I:c 2nd of i1.i
lishcricï jitr.,,licti<>n \r<~ul,lbe eik~tcd only in :,;;ord;tn:c iritn .nicro.!tl~)n:il
1:1\,
In vicir oTihehc coii~iderati~iiis. I rc\pecth Ily ri.b~ii.l 1h;it the ~grcciiicnr iur

rïiocirsc ro judrcisl rcttlcmerit conlaincd in p;ir.igr.iph 5 of thc I:\r.h~ti~ of
\oies of 1961cxnnoi hc inicrnreieil ICIthe clloct ihlt ilc,ilii.iiiicin iiiipl1c.i
right of either party to terminate this agreement unilaterally.
To thefoorrh argument: In order to justify the repudiaiion of its obligation

under paraçraph 5 of the Exchange of Notes, the Governiiient of lceland has
also invoked "changed circunistances" and "vifal interests". The Govern-
ment of the Federal Republic of Germany hm already, in ils Memorial,
disposed of the lcelandic arguments in this respect, and has shown ihat these

arguments are either irrelevant or unfounded. The Court will allow me to
refer for this purpose to the considerations set out in the paragraphs 72 to 82
of Our Memorial. I should, however, make some additional comments on the
~-~land~ ~areument ~hat lceland had a rinht to -erminale ils obliration - under
paragraph 5 of the Exchange of Notes becausc of changed circumstances.

The lcelandic argument must fail already becaiise the circumstances which
allegedly have changed since 1961 bear no rçlevance whÿtever to the agree-
ment of the Parties to submit a dispute about a further extension by Iceland
of its fisheries jiirisdiction to the International Court of Justice.

The Government of Iceland h;is first ~ointed to the fact that the technical
dciclopnicnt of firhiiig cquipnieiit and niodcrn fishing tc<hniqiie> has iiinJe
itniore pressing ih;in bei;ire in iake conscri,atioii nieasures iiiorder Io prescrit ARGUMENT OF &IR. JAENICKE 133

are at stake is not a recognized ground for terminating siich an agreement. If
both Parties were, in 1961, of the opinion that the lnternational Court of
Justice was the conipetent organ to adjudicate on Icelaiid's claim for an ex-

tended fisheries zone, there is no reason to assuiiic that the International
Court of Justice woiild no1 be equally coinpetent todny to adjudicate on this
question and 10 take account of the legitiniate interests of both Parties.
1 therefore resnectfully siibmit that the Governiiient of lccland canriot

invoke changed circumslanccs, or vital interests, as ;i grorind for terininating
itsobliçation undcr pdragraph 5 of the Exchiiilgc of Notes of 1961,by which
it has accepted the Court's jurisdiction.
In addition to these principal observations witli respect to changed cir-

cumstances 1would liketo niake some comments on thc proceduralsituation
when a State wishes 10 invoke changed circiimstances, biit docs not appedr
before the Court. Siich legal grounds;the facts of which do no1appear on the

face of the dociinieniary evidcnce before the Coiirt, should be formally
oleaded. and su~olemented bv the necesrdry factiial evidence in the nrooer
r<irii.i\prc~cr.hc;l b) ihc K~I& <il C.i>drt. \hrc,i\er. the ;i\srriion ,iicl;:inic~
C.rCii!liiiJiiCCi Ji>r.rh>r.tp~i /ii<,,,rcl<.t\c the St:<tciiiioktng thciii fr<!rii11,

tre.its <ihlic;it.<in iiiilitrh;ij bccii eii:~hlishcil. ctilier by amseni ~f ihe i>ihcr
part; or b; jiidiciül or other scttlement betwcen the pa~ies, that the changed
circuinstances arc of such a kind whichjustify the releascfroni existing tredty
obligations. Thesc procedural requirements presiippose thet the Government

of Iceland, ifit wislies to invoke changed circiiiiistances as a ground for ter-
minatins the 1961 Agreement, should have coiiie 10theCourtandarguedthis
point in fact and in law.
These Iast reniarks conclude niv coniiiients on the four main arzuments

which have been brotight forwardby the Governnient of lceland agaiiist the
validity and continuing applicability of the coiiiproniissory clause contained
in paragraph 5 of the Exchange of Notes. I hope 10 have convinced the
Court that the arguments of the Governnient of lceland against the juris-

diction of the Court are iinfoundedinfacrand law. and that paragraph 5 of the
Exchange of Notes of 1961is a valid legal basis Tor the Court's jurisdiction.
The Federal Repiiblic, not being a party to the Statute of the Court, has,
by ,ils declaration of 29 October 1971 addressed to the Court, accepted the

iurisdiction of the Coiirt roriorie oersuilne and thcrebv fiilfilled the conditions
prescribed under Article 35, pragraph 2, of the ~tat;ite. 10 be a party before
the Court, and to ask the Court 10 entertain ils Application filed in the Court
~ ~
on 5 June 1972in the present case.
1would like to add sonie remarks in order 10 show thnt the subject-iiiatter
of the dispute siibiiiitted by the Application of the Federal Republic of
Germanv keens strictlv within the scooe of the iiirisdiction of the Court, as

defined paragraph <of the ~xchangéof ~oterof 1961.I shoiild recall that
according to the terins of that provision the jurisdiction of the Court covers
al1disnutes relatina to an extension by lceland of its fisheriesiurisdiction over
the adiacent waters above i~~ continental shelf bevond thé 12-mile limit
~, ,
Diqxlies rel~iing io siiih ;in extcaisic>r, i>f ilic iislieries j.iridiiii<,.,re th<~ic
uhi~li .tris\' froni;ili)iiica\iire by .\hich ihe Cio\criimcnr of Icr.I.iiid purport\
10exercisejurisdictioniil rights or powers over fishing activities in the waters
beyond the 12-niile limit. Scopc and intensity of ihis jurisdiction, which Iiiay

give risc 10 disputes, are of secondary importance; the jurisdictional claiin
may vary as to the width of the zone in which lceland atteiiipts to exercise
jurisdiction, as well as to the scope of the rights and powers which lceland
attempts to exercise therein. Iceland's jurisdictional claim may amount 10 a136 FISHERIES JURISUICTION

The PRESIDENT: 1thank the Agent for the Government of the Federal
Re~ublic of Gernianv for the assistance he has ~iven the Court. and 1reauest

hin; IO rc~iiain ai t~iedir~i,\a~ oi IIIC Couri Torail). iuriher .iiioriiiat~on ii'iniy
reau.rr. \ViiIi ih31 rc~crvifiiion. I ~leililrc the oral procccdingr un ihc quîsiion
ofihe iurisdiction of the Court to entertain the disDute in this case closed.
The parties will be informed in due course of the date on which the Court's

judgment will be delivered.

Tlie Corrrtrose or 4.40 p.m. READING OF THE JUDChlENT

FOURTH PUBLIC SITTING (2 1173, 11.15a.iii.)

Prrseirr: [Seesitting of 8 1 73.1

READING 01: THE JUDGMENI'

The PRESIDENT: The Court niccts now ta deliver ils Judgiiient on the
qiiestion of its jurisdiction in the Fislicries Jiiris<ticlioii case instiiiited by the
Federal Republic of Geriiiany againsi the Republic of Icelünd by Application
filed on 5 June 1972.
The Parties were duly notified of the present sitting, in accordance with
Article 58 of theStatute; I note the preseiice in Court of the Agent and coun-

sel for the Federal Republic.
1shall now read the English text of the Judgiiient of theCotirt on the ques-
tion of its jurisdiction.

[The President readsfrom pnragraph 12to theend of the Judgiiient 1.1
1shall now ask the Registrar Io read the operative clause of the Judgnient
in French.

[The Registrar reads the operative clause inFrench2.1
I n~yselfüppendadeclaration ta theJudgment. JudgeSir Gerald Fitznlaurice

appends a separate opinion ta the Judgiiient. Judge Padilla Nervo appends
a dissenting opinionto the Judgnient.
In order to avoid the delay involved in printing the Judgiiient, particularly
in view of the fact that the composition of thc,Court will be altered in a few
days' lime, ithas been decided ta read the Judgment todny from a stencil-
duplicdted text. The normal printed edition will be available in about a

week's lime.
(Sig,red) ZAFRULLA KHAN.

President.

(Signecl) S. AQUARONE,
Registrar.

1 I.C.J. Repens1973, pp. 54-66.
2 lbid. p. 66.