ORAL ARGUMENTS ON THE MERITS
OF THE DISPUTE
MINUTES OF THE PUBLIC SITTlNGS
heldat thePeace Palace, TheHague,
on 28 March2April an25 Ju1974,Presideni
Lochspresiding FIFTH PUBLIC SlTTlNG (28 11174, 10am.)
Presenr:PresidenLACHS; Vice-PresideAMMOUN JiidgeFORSTER ,nos,
BENGZONP,ETR~NO . NYEAMA D,ILLAROI,CNACIO-PINTO DE CASTROM , ORO-
zov. JIMENEZ DE ARÉCHAGA S,IR HUMPHREY WALDOCKN , ACENDRA SINGH,
RUDA; RegisrraAQuARoNE.
Alsopresetit:
For the Covernmentof theFederal Republicof Germony:
Professor Dr. Günther Jaenicke, Professor of International Law in the
University of Frankfurt am Main,Agent;
Dr. D. von Schenck, Head of the Lcgal Department, Ministry of Foreign
Affairs,
Mr. G. Mocklinghoff, Mioistry of Food, Agriculture and Forestry,
Dr. C. A. Fleischhauer, Ministry of Foreign Affairs,
Dr. D. Booss, Ministry of Food, Agriculture and Foreos Corinseland
Advisers;
Dr. Arno Meyer, Federal lnstitute for Fisheries Reseas Cor~nsel rrd
Expert. OPENINO OF THE ORAL PROCEEDINOS ON THE MER~TS 289
on the question of the possible joinder of this case with the case instituted by
the United Kingdom of Great Britain and Northern lreland against the
Republic of Iceland by an Application 1 filed on 14April 1972,and the Agent
was informed that the Court had fixed 30 September 1973 as the time-limit
within which any such observations should be filed. By a letter 2 dated
25 September 1973,the Agent of the Federal Republic submitted the observa-
tions o.~his Government on the auestion of the oossible ioinder of the two
fjrhrrier Jtrriwl;ctio» cases.The <~overntiient al lceland hid been informeci 2
that the ubservaticins of the Fçderal Kepuhlic on pi)~sible,oinJer h3d hcen in-
vited, but did no1niike 3n) <omnicnt\ io the Court.On 17Janudry 1974 3 tb.e
Court dcciJtd noi toloin the prtient prnîcciliiigs to iho~c instiiiilcdby the
United Kingdom aminsi the Repuhlic of lccland.
It shouldbe noted further the-Court does not include uoon the bench anv
judge of the nationality of either of the Parties. However, ihe Government if
lceland has not indicated any intention to avail itself of the right conferred on
it bv Article 31. oaraeraob 3. of the Court's Statute. to chooie a oerson to sit
as hdge ad hoif andthé ~hvernment of the ~edeial Republic Of Germany
has informedqhe Court that, taking account of the fact that the Government
of tceland declines to take oart in the oroceedinzs and to avail itself of the
right to have a judge ad ho> on the bench, the Government of the Federal
Republic, as long as this situation persists. does not feel it necessary to insist
on the amointment of a iudge ad hoc
The ~hvernments of Argentina. Australia, India, New Zealand, Senegal
and the United Kingdom have asked that the pleadings and annexed docu-
ments in this case should be made available to them in accordance with
Article 44, paragraph 2, of the 1946 Rules of Court. The Parties having in-
dicated that they had no objection, it was decided to accede ta these requests.
In accordance with its usual ~ractice. the Court decided. with the consent of
the Partte,. thst the pleadings and innetcd docdnienir in ihç csse rhould be
msde ac<ei~ible tu the publi.'. pursiiüni to Article 44. paragrnph 3, <ii the
1940Kules of <:ouri, uith clTeci fraiil the upcning <ifthe prereni cir;il procccrl-
ings. The C<iurt Iitrthcr Jecided rhJtJ n~nibcr orconimunic:stion~ 5;idJrcsied
to the Co.irt by the Go,crnmcni of Iccland should 315sbe niaciescces,iblc t<)
the ~iiblic31 this iinie. The Partics hd\e indicarcd that thcv hsvr noohieîtion
10this course.
1thus declare the oral proceedings open in this case.The Court has not been
notified of the appointment of an Agent for the Ciovernment of lceland and
no representative of the Government of lceland is present in the Court.
1 1,pp. 3-10.
2 Sec p. 456,infra.
3 I.C.J. Reports 1974,p.177.
4 See p.457, infra.
5 See pp. 447,450, 462and 470, infra ARGUMENT OF MR. JAENICKE
AGENT FOR THEGOVERNMEN TF THE FEDERAL
REPUBLIC OF GERMANY
Mr. JAENICKE: Mr. President, Members of the Court, when I had the
honour Io address the Court in this case on the matter of jurisdiction, L had
given expression to the hope that an affirmativejudgment of the Court would
bv ils authoritv oersuade the Reoublic of lceland to ioin the oroceedinas on
the merits. ~lihough the ~ourt'hed by its ~udgment of 2 ~ebruary i973,
affirmed its jurisdiction by a nearly unanimous decision, the Government of
lceland has aooarentlv not been convinced therebv that its neeative attitude
is no1 in hahony &th Iceland's previous undertaking to-submit such
disputes to the Court. On the contrary. in a telegrani 1 recently addressed to
the Court on II January 1974 the Covernment of lceland stated that its
position with regard to the proceedings reniained unchanged, and conse-
quently no Counter-Memorial kas been subniitted, and no Agent for the
Government of lceland has appeared today.
It is notmy concern to speculate on the reasons which have led the Govern-
ment of Iceland to persist in its determination no1 to assist the Court in the
exercise of its judicial functions. The various statcments which have been
made by members of the Governmenl of Iceland since the beginning of the
proceedings in this case, and the arguments used in the aforementioned
telegram of the Minister for Foreign Alkirs of Lcelünd. seem to indicate that
the Governnient of l.el~~-~.o~s -~1~wis~ to ~ave the unila~ ~a~ ~ ~ ~~~on of
ils exclusive fisheries zone at present reviewed by the Court, probably in the
expectation that a chance of the existing Iaw by the forthcomine Conference
oi the Law of the Sea m:eht ~ossiblv orovide sime iustification~~ ~ ils action.
~U 7
Whatever reasons may have motivaied the attitude of the Government of
Iceland, it is the firm ~osition of the Government of the Federal Reoublic of
Germanv that. under ihe Charter of the United Nations. actions of~~overn-
. ~. ~ ~
ments have to conform to the rules ofcurrent international law. Ifany change
of these rules is sought which affects the rights or interests of another State,
this cannot be broueht about bv unilateral~ction and useof force. but onlv
~~
by consultation, neg%iation and, in caseof dispute, judicial settlem&t. It had
been in this spirit that the Governments of the Federal Reoublic and lceland
in their Notes exchaneed on 19 Julv 1961. had aereed that in case lceland
would wish Io extendyts fisheries jirisdiction bey&d 12 miles, any dispute
betueen the parties relating 10 such an extension should, at the request of
either Party, be referred to the InternationalCourt of Justice. By concluding
this agreement both parties had given expression to their confidence in the
Court's competence to passjudgment on the lawfulness of any eventual claim
hy lceland for an extended fisheries zone on the basis of the principles and
rules of internationsl law, and with due regard to the legitimate interests of
both parties. The Government of the Federal Republic still has this con-
fidence.
In the Memorial filed on I August 1973, the Government of the Federal
Republic of Germany has already, in much detail, put forward the arguments
1 See p.461, inJkhabitually fished there previously. The present dispute relates only to the
ouestion whether lceland could show a valid legal title for claiming exclusive
rights with respect to the fishery resourcesbeyond the 12-mile limit.-
It is true that claims for wider limits of fisheries jurisdiction have heen
made. and not onlv bv.lc.land but also by a number of other States, some-
tinierhy cliiiiiing a u ider tcrriiorisl se8and \<~niciiiiir.sb) cldiniing a ieprirdtc
lishcrics lonc ranging froiii 50 to 200 milcs This niinoriry prîciicc uhich hds
not gone without opposition or protest by those States whose interests were
affected thereby, has been reviewed in Part IV, paragraphs 78 to 91, of the
Memorial of the Federal Republic and 1 need not comment on this practice
today.
This body of Statepractice, which is mainly confined to the Latin American
and African Continents, is not more than evidence of a dissatisfaction of
these States with the existing law; it lacks the necessary uniformity and
general acquiescence by those other States whose fishing rights are affected
thereby. One could Sayno more than that there is a tendency among some
States toextend the limits of their maritime jurisdiction farther out into
the sea beyond the 12-mile limit, but it is still completely unsettled for
what purpose such an extended jurisdiction could legitimately be claimed
and how such an extension could be reconciled with the concept of the
freedom of fishing on the high seaswhich is still part of the established law
of the sea.
It has in fact been argued that there is a trend in recent State practice and
doctrine to recoeni-e the coastal State's soecial interest in oreservine-the
marine en\ ironnicnt. incluJing the lirhrry rcrourccs. heforc icodrt and itr hiis
fiirthcr beendrgucd thdi ille rçst~pnition ofthir \pcsidl .ntercit niighr serveaj
a basis for the coastal State's rie-t to a wider marein-of iurisdiction over the
waters before its coast, at least as long as effective international supervision
over the activities beyond the present limits of national jurisdiction is not
forthcomine
~lihough the force of this îrgunient should no1 be undcrcsriiiiaied. 11 is
w<.nd unly in io fdr asa cu.rtal Statc &ts on hchaliof ihe intcrn.itionnl son>.
munity in enforcing generally accepted standards in the preservation of the
environment or in the conservation of the living resources of the sea. It
would, however, be a perversion of this argument if it would be usedasa legal
pretext for a re-allocation of the living resources of the high seasto the sole
benefit of the coastal State. There may be good ground to argue that the
coastal State, under certain conditions, should be entitled to extend its
jurisdiction beyond the 12-mile limit if this should become necessaryin order
to enforce eenerallv acceoted rules for the oreservation of t~ ~mar~~~.en- ~ ~
vironment and the ionserGation of the living risources before its coast.
Already, on 28 September 1945,the President of the United States issueda
oroclamation entitled "Policv of the United States with Resoect to Coastal
~isheries in Certain Areas ofthe High Seas". Therein the ~ocernment of the
United States proclaimed its intention to estahlish conservation zones in
those areasof the hieh seascontiauous to its coast where fishine activities are
- -
bcing in~iniaiiicd on a <uhsiantial scsle: 3uih li5hcricr conrcr\aiion 7ones
\\oiild bc e,t:tbli\hcd e~therunildtcrnlly.rrhcrc fihiny, acti\ities arc iii~iniainçd
by United States nationals alone, or by agreement with other States where
fishing activities are maintained jointly by United States nationals and
nationals of other States.
The Geneva Convention on Fishing and Conservation of the Living
Resources of the High Seas,which was adopted by the Conference on the ARGUMENT OF MR. JAENICKE 293
Law of the Seain 1958,recoaniz-s. in its Article 6, that the coastal State has a
specinl iniereht in the maintenanie of ihe pr,,J~cii\iiy ol the I,\ing resources
in nny lirea sl'ihc Iiigh seasadjlireni ii> ~tsis.isi ïnJ ;iutlior.zes. 115Article
7, the coastal State to adopt unilateral measuresof conservation in such areas,
provided that negotiations with other States whose nationals are fishing
within the same areas have not led to an agreement within 6 months. Such
uriilaleral measures, however. must not discriminate in form or fact against
foreign fishermen and, what is very important, ifcontested by other States,
must be submitted to an internationalcommission for impartial review. Thus,
these provisions of the Convention could never serve as a basis for the
' establishment of an exclusive fisheries zone to the sole benefit of the coastal
State.
It may then beargued that. under exceptional circumstances. there may be
situations where the coastal State will have no other choice than to exercise
jurisdiction beyond the 12-mile limit, for the purpose of taking urgent
measuresfor the protection of the marineenvironment and its resourccs, and
where such measüres, if applied in a non-discriminatory manner, will prob-
ably meet with the recognition of the international community. If such an
exceptional competence of the coastal State is recognized, this recognition
rests on the assumption that the coastal State has acted in the area of the high
seas before ils coast as guardian of the interests of the international com-
munity. and not only in its own interests. It is, therefore, indispensable that
the measures taken by the coasial State do not discriminate against other
States and apply equally to both foreigners and nationals.
Now whatever may be said in favour of such an exceptional competence
of the coastal State to issueand enforce regu-ations for the vu.oo.e of conser-
\aiion beyond the 12-milc Iimit, it i> not pcrtinçni hcre heclid5e itxnnoi serve
ab i Içgal bzisis for Iccl~nd'i ilaiitfor ~n e,.cliisi\c tisheries ,drie. The l~e-
landic Regulations of 14 July 1972 do not impose conservation measures
upon lcelandic and foreign fishing in a non-discriminatory manner; their
primary object is to exclude other than Icelandic fishing vessels from the
50-mile zone and to reserve the fishery resources in this zone exclusively to
the nationals of Iceland. These Regulations are essentially discriminatory and
aim ai the re-allocation of the fishery resourcesin the waters of the high seas
around lceland to the sole benefit of Iceland. 1shall show at a later stage of
mv statement that the Reeulations of 14Julv 1972 were meant ta establish a
- .
truly exclusive fishery zone, and were not merely introduced as a tool for
securing preferential fishing rights within the 50-mile limit.
If is therefore not necessarv to dwell here anv lonaer on the vroblem
\rhcthcr and ur~dcr khi1 ~.sn~iiisnr the eitahlish",ent <y Icehnd of iiiùit-
servalion zone hcvond the 12-mile Iiniii niighi ha\e been)~stifird: the cenird
issueof the present caseis rather whether 1celandas a coastal State is entitled
to claim the fishery resources in the waters of the high seasaround ils coast
for ils own exclusive use.
The international régime of fisheries is founded on the concept of the
freedom of the high seaswhich accords each State an equal right of accessto
the fishing grounds of the oceans. with the exception of the limited zone
before the coast where the coastal State has the exclusive right to exploit the
fishery resources. Thus, the international régime of fisheries makes a clear
division between the international area where the fishery resources have been
allocated to the international commiinity, and the national area where the
fishery resources have been allocated to the coastal State. In the historic
development of the law of fisheries the dividing-line between the international294 FISHERIES JURlSOlCTlON
and the national area has no1 been stable: ils determination necessarily
depended on the presenceof a consensusamong the international community
of States in the continuous process of conflict and conciliation between the
interests of the international community on the one hand and the interests of
inJii,idual cdastal Statcs on the other. i h3d alrcady statcd carlier ihat incc
thc 195Yand 1960Confercn~.cron the Lak of the Scaa neu rulc of IJ~ hsi
emcrccd \\hich nou has fihed thc di\iJins linc bcineen ihc international and
natio~~l area~at ~ ~ di-~ance of 12 miles fiom the coast. or more accuratelv. -.
from the baselines froni which the territorial sea is measured.
Could it now be araued, as the Government of lceland seem Io intimate.
that the law of the sea-hasagain changed Io the eiïect that each coastal State
rnay now claim exclusive rights to the fishery resources of the high seas
adjacent Io its coast beyond the 12-mile limit up Io 50 miles or more. It
would have been for the Governrnent of lceland Io convince us, by facts and
arguments, that such a change in the law has taken place. However, the
Government of lceland has chosen not to argue this point before the Court.
The Government of the Federal Republic has, in its Memorial, examined
this question in great detail and concluded that the ascertainable practice of
States does no1support the view that the law has again changed to the effect
that a State may validly claim al1 the fishery resources in the high seas
adjacent to ifs coast, even beyond the 12-mile limit, without regard Io the
established fishing rights of other States in this area. As it is of primary
importance in this case to ascertain the present state of the law with respect
to the dividing line betwecn the international and the national area, the Court
will allow me to elaborate this point a little further.
The task Io define the limits of the coastal State's iurisdiction over the
\i,atrr'bcforc ilsCc1311 confronts u\ uith thcconiple~ proces\ of thc fi>rmaiton
and change of custom3ry international Isw. or to put it riiore carcrully. of
rules of law which are not founded on law-makina treaties. 11is a current
\ici\, thai thc Iaw of the scais in a statc ofchangc and has to adapt itselrta~the
changing ncîds and modcrn tcchnological possibiliiics. so that new rulçr of
law may develop more rapidly than former theories on the formation of
customarv i.te~ ~tio~al law would have anticinated. While this is. in its
csrcncc. probably trLe with respect 10 ccr-tain ne; fields or human ac~ivitics,
suuh ai the e.;ploit;ition af the resourcesof thc wabed and subsoil of thc htgh
seasor other new technical usesof the sea-for ~ ~ examole. the construction of
artificial islands or harbours within the high seas,thesi phenomena cannot be
used as a pretext for reversing the whole system of the law of the seaand Io
replace the freedoni of the high seasby the coastal State's rrile.
There are certainly situations where new rules of law are needed Io fiIl a
legal vacuum; such rules will be formed by the practice of States more
rapidly than elsewhere.The outstandineexam~le of this tvoe of situation is the
exploitation of the seabed and ils subsoil wh'ich becami iechnically possible
after the Second World War. No rules of law were in existencewith respect Io
the jurisdiction for the reaulation of these new human activities on the high
seai and quite naturally Ïhe coastal State, as the nearest to such activities,
assumed jurisdiction. This action by coastal States, combined with the
general recognition by the international communitv of the coastal State's
primary interest in keeping such activities before itscoast under control, led
to the rapid formation of the doctrine of the continental shelf and its accep-
tance as a general principle of international law bv the international com-
munity. ~yfhe formationof this new concept of la; no established rights of
other States were affected thereby, and the traditional freedoms of the high ARGUMENT OF MR. IAENICKE 295
seas remained unchanged in the superjacent waters. That is why unilateral
action by coastal Statescould play such a predominant part in the formation
of new rules with respectto the exploitation of the continental shelf.
The situation in the field of fishery limits is totally different: no legal
vacuum exists with resDect to the allocation of the fisherv resources of the
oceans. Fishing on the'high seas beyond the limits of national jurisdiction
belongs to the long-established usesof the high seas,was open to al1nations,
and indeed practised by them. Therefore any action of a coastal State which
purports to move the dividing line betweenthe international and the national
fisberies area farther out into the sea does not cover a legal vacuum. but
necessarily affects the fishing rights of other States, in particular of those
States whose nationals had until then exercised the undisputed right of
fishing in these walers of the high seas. Consequently, any change of law to
this effect cannot be brouaht about bv unilateral actions of coastal States but
requires lhe consent or atleast the acquiescenceof those States whose fishing
rights are aiïected thereby.
The Court in ils Judgment of 20 Februarv 1969in the North Seo Conrineirral
Shelfcases, has made71 very clear that ne& rules ofcustomary international
law cannot corne into existence without the participation of those States
whose interests are prirnarily affected thereby. In the North Sea Continental
Shelfcases the Court had to consider whether a conventional rule had be-
corne a rule of general international law with binding effect also on those
States which had not rütified the convention. 1 quote the following sentences
from the Judgment:
"With resuect to the other elements usuallv rea.rded-as necessary
before a con"entiona1 rule can be considered to have become a general
rule of international law, it might be that, even without the passageof
any considerable period of time, a very widespread and representative
participation in the convention might suffice of itself, provided[and 1
emphasizethe following words] ir inciuded rhor of Srares whoseinrerests
werespecially affecred." (1.C.J. Reporrs 1969, p. 42.)
And later the Court continued:
'Although the passageof only a short period of time is not neces-
sarilv. or of itself. a bar to the formation of a new r~l~ of customarv
international law on the basis of bhat was originally a purely convei-
tional rule, an indispensable requirement would be that within the period
in question, short though it might be, State practice, [and I emphasize
the following words again] inciuding rhat of States whose i,~rereslsare
s~ecially affected, should have beenborhesrensiveand virtr,ally ro~iformin
the senseof the orovision invoked:-and should moreover have occurred
in such a way a; to show a generai recognition that a iule of law or legal
obligation is involved." (I.C.J. Reports 1969, p. 43.)
One should note the particular emphasis which the Court has put on the
requirement that those States whose interests are affected thereby participate
in the formation of a new rule of custornary law. Or, in other words, a new
rule of customary law cannot emerae without the consent or at least the
acquiescenceof virtuallv ail those ~ta&s whose ~n~-~e~ ~.~.-l- b.~affected bv
thenew rule. The couri has made the participation of the interested States a"
indispensable condition in those caseswhere the new rule hÿd already been
ernbodied in a general law-making convention; the Court's ruling must apply
with even greater force to those caseswhere itis contended that an existingrule of customary law had changed by subsequent practice, becausehere not
only interests but established rights of other Statesare affected.
If we apply these considerations to the present casewe mus1conclude that
it is not sufficient evidence of a change of the law with respect to the distance
up to which a State may claim exclusive rights over maritime areas, to point
merely to the actions of some coastal Stateswhich have unilaterally proclaimed
an extension of the limits of their territorial seaor fisheries zone; it is equally
important and indeed indispensable that any such extension is recognized as
lawful by those States which are most aKected thereby, namely by those
States which practise distant-water fishing.-However. no evidence of such
recognition has been submitted so far; on the contrary, the Government of
the Federal Republic has protested in al1 cases where claims for exclusive
fishery rights beyond the 12-mile limits have been made and brought to the
knowledge of the Federal Government, and it is assumed that the other
States with laree distant-water fishine fleets have done likewise. As there is
not the slightesÏ evidence that the pr&cipal distant-water-fishing States have
recognized claims for exclusive fishery zones beyond the 12-mile limit as well
founded in law. it is. therefore. submitted that no new rule of customarv law
has emerged which Would entitle a coastal State to claim exclusive rightsover
the fishery resources of the high seasbeyond the 12-mile limit.
This conclusion could no; be otherwise if one would, for the sake of
argument, start from the Government of Iceland's assertion that in view of
the wide variety of jurisdictional limits presently claimed by the States of the
world, the continued existence of a customary law rule which defines the outer
limit of coastal States' exclusive jurisdiction must be questioned. For even
then, a coastal State would not be free, under the principles and rules of the
law of the sea. to extend its iurisdiction to anv limit which il thinks ~rofitable
for its economy and its nationals. As long asihe law of the sea is fohded on
the over-riding principle of the freedom of the high seas which accords al1
States an esual. thouzh not unlimited. rizht o- accessto the fisherv resources
r~itlic occ3nr. itis the inc,r.ap.ible ciiri\equcnce iliat thcre muschc a bo.indary
or di\..<liiig-linc hrtaccii thc intcrn:iti,in~l arcdof the hi~h se;,<\\hich 1sopen
to al1nations and should be exoloited to the benefit of the international com-
iiiiinit)., ;and ihc. n:ttit>n.tl Liiea \iiihin \%hichthe ;jdilStdlr mdy rcçerve lhc
rciniircc\ for it<eli. fhis hot.iiddry tir di\ij:ng-linc. eten if il uere ni>t ;iti).
iiiorc delined triternis ,>fi fi\cJ disiancc of niilcç. i.iiinoi hc left io be Jeter-
rnincd by edch io>risl St~tc .t:cording IO ii< indi\idu~l intçreit\ hut must
ari.iit11spropcr Jcrcrriiin~ii~>n b) ionsensur of the iniernitii>nal cor!,~iiiinity.
In the formative process of such a new rule of general international law
which should determine the criteria for the drawing of the boundary line
between the international area and the coastal State's exclusive zone, the
unilateral claims by coastal States for an extended zone of exclusive rights
are nothing more than only oneelement; they manifest the particular interests
of the coastal State, but cannot be taken as the sole denominator for the
contents of such a rule. There are other important interests which have to be
taken in10account. to mention onlv the inte~ests~ ~ States with a narrow or no
ci~:i>ilincu hich <h,ruld alsri h:,ve ~iccesrIO thc fishcry rcsotircei of ihc oceans.
or thc iriIçresl$ of tliosc St~rc,\rhiih border ciiclo~cd Ddri, of the higli sel\ dnd
are equally dependent on the fishery resources of theoceans for the nutrition
of their peoples and, last but not least, the interests of the international com-
munity as such, which has a particular interest in the full, economic and
equitable utilization and preservation of these resources as an important
source of food for mankind. Thus, in order to prove the emergence of a new ARGUMENT OF MU. IAENICKE 297
~ ~~ of eeneral international law. which would allow ~- coastal Stat~~ to extend
their national exclusive fishing zone beyond the 12-mile limit, it is not suf-
ficient to rely on the fact that a number of States have. in effect. claimedwider
exclusive fishery zones. Such practice mus1 in any case be supplemented by
the recognition or at least acquiescence by those States which are adversely
affected therehy, let alone the question whether such an enormous extension
of national area~ ~ould not adverîelv affect also the interests of the interna-
lion31 communil) ;isa rrhole. A, there is no eridcnce that ihc claiiii, b) sonic
coûsixl Sixtes for uidcr .'<~ncs ofe\cl.iiive fishinb:rights hahc becn recognixd
bv the international communitv. . . and as imooriant distant-water-fishine-
States haveprotested against such claims, it is. therefore, submittedthat there
is no consensuson a new rule of ~eneral international law which would allow
a coastal State to extend unilaterally its exclusive fishery zone farther out into
the sea up 10 50 niiles or more from the Coastwithout regard to the rights of
other States and to the interests of the internationalcommunitv.
hl1 thc coniider3tions -hich I h2i.c JUSI nientioncd us~li slrc~dy suiiice
to rcfute the contentmn th;,!the I:iu of the sca has ch~ngeJ or crcated a nca
rulc to the cfict th;rtitisuiihin the dicrction i)ithe cna.;ial Statc ln e.~tend
itijurt,d~ct.on o\,cr the fisherics hcfcirc itç co:iit unil;iterally ts aIitnitirhi~h
itconsideri nccesiar) to saiirfi 115inJii.J.t.iIintcrests. Se\erthclers. I .;ho.ilJ
make some coninients on the question whether the rules which govern the
fisherv limitsat oresent. are eauitahle. Althoueh it is certainlv not relevant for
decid;ng Ihç prî,ent dt,piitc \;hetlier the Ia\r < II.idnds sho;ild. in ihc vicn of
one of ihe Parties. be chingcd ind althsugh such con.ideration .oulJ nctcr
.iusti.v the unilateral violation of the rie-tcof the other Partv.,t.e need for a
change of the law, ifestablished beyond doubt. might eventually have some
bearing on the duty of both Parties to enter into meaningful negotiations for
the re-settlement O? their resoective riehts. It is onlv in Ïhis context that the
opinions recently expresscd 'by goveriments in-thé resolutions of interna-
tional conferences and in the discussions on the floor of the UnitedNations
Sea-bed Committee rnight acquire some relevance for the dispute between the
Parties.
The Government of Iceland, in ils telegram addressed to the Court on
II Januarv 1974.allenes that the conceot of a so-called economic zone uo to
200 miles; wiihin whrch the coastal tat t should onjoy exclusive rights ;ver
the economic resources of the sea, its seabed and subsoil, including exclusive
fisherr rirhts. has found verv wide suooort. in oarticular in the statements hv
delegations in the meetings of the unlied Nations ~ea-bed Committee and in
the General Assembly of the United Nations. The Government of Iceland
goes even so far as to alleae that these statements are not onlv aimed al what
ihould be decided by the~aw of the Sea ~onfe;e"ce, but do already retïect
what the law is today. It should not be denied that recently a nurnher of States
have by proclamation or legislative act claimed an extendid exclusive fisheries
zone beyond the 12-mile limit. The claims of sonle 20 States have already been
reviewed in the Memorial of the Federal Republic of Germany filed on
1 August 1973-1 refer in this resoect to Part IV. oara~.,ohs -. to 91. of the
Aleniorial. Since ihen siniil.ir il~inij for e.~cliiiive fi<hcry ionci hy thc foll<ia-
ing Statc> hme coiiic to the kncralcdge of the Go\,ernnient sf the I~cJerûl
Kcpublic' Soiiialca. 200-niilea territorial sea. Tan7ania. 50-iiiilcs territarial
se:$.MaJagascar. 50-~iiiles tcrrii.>rial scû. and Iran, .in ex~.lusivcfiiher) nine
coniprising the waters ~ibtivc Iran'$ cont.nïntal \helf in the Per\ian Gull and
50-inile~ ehclusive lishcry Jonc in ihc Sea of Oman. Thus. ntrt niore than 25
States, including Iceland, have up till now actually claimed and tried toenforce an exclusive fisheries zone beyond the 12-mile limit. In the Dreoara-
tory discussions for the forthcoming conference on the Law of the ~éain the
United Nations Sea-bed Committee various proposals have been submitted
which aim at the recognition of a so-called "economic zone". sometimes also
called "patrimonial sëa", within wbich the coastal State would have exclusive
jurisdiction over the exploitation of the livingandnon-living resources of the
high seas.But these proposals are mainly sponsored by the same Stateswhich
already claim and attempt to establish such a zone before their coasts.
1 refer in this respect to the proposals submitted on 7 August 1972 by
Kenya; on 2 April 1973by Colombia, Mexicoand Venezuela, relating to the
concept of the patrimonial sea; on 5 April 1973 by lceland relating to the
jurisdiction of coastal Statesover the natural resourcesof the area adjacent to
their territorial sea; on 3 July 1973by Uruguay, providing for a territorial sea
up to a distance of 200 miles; on 13July 1973by Brazil, providing a territorial
seaup to 200 miles; on 13July 1973by Ecuador, Panama and Peru providing
the extension of the sovereignty of the coastal State up to a distance of 200
miles; on 13July 1973by Malta, providing for the extension of the jurisdiction
of the coastal State to a so-called "belt of ocean space" up to 200 miles; on
16 July 1973 bv China. ~roviding an exclusive economic zone UD to 200
nauticil miles; in 16 ~ul; 1973 b; Australia and Norway, providing for a
right of the coastal State to establish a zone in which the coastal Statesshould
have sovereign rights over the natural resources for the primary benefit of its
people and its econoniy; on 16July 1973by Argentina, providingfor an area
of sovereignty for the coastal State up to a distance of 200 miles; on 16 July
1973, by Canada, India, Kenya, Madagascar, SenegalandSri Lanka relating
to fisheries in an exclusive economic zone within an unspecified distance from
the coast; on 16 July 1973 by Algeria, Cameroon, Ghana, Ivory Coast,
Kenya, Liberia, Madagascar, Mauritius, Senegal, Sierra Leone, Somalia,
Sudan, Tunisia and Tanzania relating to an exclusive economic zone up to
200 miles; and on 10 August 1973 by Pakistan, providing for an exclusive
economic zone up to 200 miles.
These are the proposals made by some Statesin the United States Sea-bed
Committee for an exclusive zone beyond the 12-mile limit. All theseproposals
are listed as United Nations documents under the symbol A/AC.I38/SC,II/L.
10,21. 23. 24, 25.27. 28. 34. 36.37. 38.40 and 52. res~ectively.
. .
As ilIppcdrs iruni 1hc.c di>cii~iicni\, the Siaies ~Iiir'h id\,<~i.ilc 3n e~len*ii~n
uI'e\clu~ivc li,lier)rghi, hc)orid ihc 12-niilc Iiniii utg>200 iiiilc, or lerr .ire
much the same as those which claim such an extension already. There are
only a few additional States which seem to give unqualified support to the
economic zone concept. All these are States which, by their geographical
position, benefit most from an extension of their maritime jurisdiction. How-
ever, these proposals on which lceland relies for the justification of its own
claim for a 50-mile exclusive fisheries zone are only one side of the picture.
A closer examination of these proposals, as well as of the numerous other
proposals submitted for consideration in the United Nations Sea-bed Com-
mittee, reveals a inuch more complex and differentiated pattern of the views
of States with respect to the coastal State's right over the fishery resources
before its coast. For this purpose, 1would like to draw the Court's attention
to the following facts:
First, 1should uiiderline that the proposals submitted to the UnitedNations
Sea-hedCommittee for consideration are proposals delegeferenda. Generally
they do not purport to be a restatement of the existing law, but are bargaining
positions which are built up for the negotiations in the conference. The same ARGUMENT OF MR. JAENICKE 299
is true for the various declarations of Latin American and African States
which are usually referred tu in support of claims for an extended jurisdiction
of the coastal State. This is even true for the so-called Montevideo Declara-
tion of 8 May 1970, which was signed by Argentina, Brazil, Chile, Ecuador,
El Salvador, Panama, Peru, Nicaragua and Urugiiay. Although this Declara-
tion purports Io be declaratory of basic principles of the law of the sea,among
them the principle that eüch State should have the right tu establish the
limits of its niaritirne jurisdiction in accordance with its geographic and
geological characteristics and the need for rational utilization of the marine
- -
resources, the preamble of this Declaration states more carefully that the
principles contained in the Declaration are "emanating from the recent
movement towards the wrocres.ive-develuornent of international law. which
is receiving ever-increasing support from the international community".
This rneans that even those States which signed the Montevideo Declaration
did no1 want Io go su far as tu pretend that these principles had already ob-
tained the recoenition of the international commu~~ ~ ~ ~
- ~ -..
The other pertinent Declarations. namely the Santo Domingo Declaration
of 7 June 1972 and the Declaration of the Organization of African Unity of
24 May 1973,although they support the right ~fcoastal States tu extend their
jurisdiction over the resources in the waters beyond the limits of their ter-
ritorial sea, clearly indicated that they were tu be iinderstood as declarations
of common policies and proposals (lel~gc/irenda..The Declaration of Santo
Domingo, which was signed by the Governments of Colombia, Costa Rica,
Dominican Republic, Giiateniala. Haiti, Honduras. Mexico, Nicaragua,
Trinidad and Venezuela. declares in its first operative paragraph tliat the
coastal State has sovereign rights over the renewable and non-renewable
naturdl resources which are foiiiid in the waters, in the seabed and in the
subsoil of an area adiacent tu the territorial s~ac~lled the "oatriinonial sea".
But in the following operative paragraph 3, it recognizes that the breadth of
this zone should be the subject of an international agreement. preferably of a
worldwide scooe. The ~eciaration~~ ~the 0rea-~zaGon of African Unitv on
the issuesof the law of the sea states, in pa;agraph 6 of ils preamble,-that
Africa, on a basis of solidarity, iieeds tu harmonize her position on various
issuesbefore the forthcoming United Nations Conference on the Law of the
Sea; and in paragraphs 14 and 15 notes the recent trends in the extension of
the coastal States' jurisdiction over the area adjacent tu their coasts and the
position and vieu,s of other States 2nd regions. The Declaration then sets
forth a set of principles as the conimon position of the African States, and
among them the recognition of the right of each coastal State tu establish an
exclusive economic zone beyond ils territorial seas, whose limits shall no1
exceed 200 nautical iiiiles.
The limited significance in this respect of the United Nations General
Assembly resolution 3016 (XXVII), on the Rights of States to Pernianent
Sovereigniy over their Natural Resources, has already been examined in
paragraphs 71 tu 75 of Part 1V of the Memorial of the Federal Republic. 1
need not repeat these arguments today.
From al1these oro.osa.s and declara~i~ns nothine more follows than that a
litnitcd nutnhcr of Siaie%which h;i\c spon.,ired ihchc (iropo~al~.or sub$cribed
tu those dcslnrniiuns. iakc ihç poiiiion ih:ii ihc r<irihcoming Confçrence on
ihc Laiv of the Sca shcii~lJrecorotx ihc rtcht oi the ctxisial Siîic Io zlaim
exclusivejurisdiction over the fi&ry resources within a zone adjacent tu its
Coast, up Io a limit of 200 niiles.
TU gel a full and balanced piciure of the opinions of governrnents on the economic zone concept in the United Nations Sea-bed Committee, we should
now examine the prooosals submitted by those States which did no1 support
the economic zone concept or offered support only under significant reserva-
tions. In this context 1shall first turn to the proposals which were submitted
by important distant-water-fishing States.
The Soviet Union, in its drdft articles on fishing submitted to the United
Nations Sea-bed Coniinittee on 18 July 1972 (doc. A/AC.138/SC.II/L.6),
adheres Io the concept that the territorial seaor the exclusive fishery zone of a
coastal State should not exceed 12miles. Beyond that limit, only developing
coastal States should have the preferential right to reserve Io themselves
annually such part of the allowable catch of fish as could be harvested by
their fishine vessels. in order to have the o~.o.tunitv to build UD their na-
tional fishi& indu;tries;~But, in principle, al1 the fiih beyond the 12-mile
limit, which the develooing State could not so reserve for itself, might then be
taken bv other States-wiÏh due reeard to the needs of conservation. In ils
explanaiory note to this proposal,;he Soviet Union takes the view that the
legitimate interests ofthe peoplesof other Statesto usethe fishery resources of
the world oceans should nG be overlooked and that. should the stocks of
fish not taken by the coastal State perish without being used by other States,
itwould be an unjustifiable waste of valuable food resources so necessaryto
mankind. The Soviet Union recognizes that in those areas of the high seas
which are not covered by regulatory measures of international fisheries
organizations the coastal State may take regulatory measures, but only in
agreement with the States whose nationals fish in the same area, and in a
non-discriminatory manner.
The proposal of the Soviet Union is in harmony with the Declaration on
Principles of Rational Exploitation of the Living Resources of the Seas and
Oceans in the Corimon lnterest of All Peoples of the World which had been
adopted by a Conference of Ministers of Bulgaria. Czechoslovakia, the
German Democratic Republic. Hungary, Poland and the Soviet Union held
al Moscow on 6 to 7 July 1972; the contents of the Declaration were sub-
rnitted to the United Nations Sea-bed Committee asdocument AlAC.138185.
This Declaration stressed the need for CO-operation of al1interested States in
studying and regulating activities relating to the living resources of the seaas
an essential condition for their rational useand for increasing the yield of fish
from the seas and oceans, and the Declaration added that the partitioning
among States of a substantial part of biologically inter-related areas of the
high seas, through the establishment by coastal States of special zones of
great widths-for exaniple, more than 12 miles-and the proclamation of
.exclusive rights of coastal States over constantiy migrating shoals of fish,
would make this task impossible to fulfill. The Declaration starts from the
basic principle that the fishing régimeon the high seasshould be based on the
principle of the equal rights of al1States to engage in fishing in these waters.
Certain preferential rights should, however, be accorded to developing States
to enable them to develop their national fishing industries and overcome their
technological backwardness.
Japan, in ils proposal for a régime offisheries on the high seas.submitted to
the United Nations Sea-bed Committee on 14 August 1972 as document
AIAC.138ISC.II/L.I2, likewiseseeks to preserve the freedom of fishing by al1
States in the waters of the hieh seasbevond the 12-mile limit. These nroDosals
- ~ - . .
do, houc\çr. pro) ide fur ccridin prefcreniial rights ofcoïsial Stîles uhiçh are
iniended Io ensure sufliciçnt protection for coast31ficheries of Slaic\, particii-
larly of developing States, in relation to the activities of distant-water ARGUMENT OF MR. JAEN~CKE 301
fisheries of other States. in areas of the high seas adiacent to their 12-mile
limit. Thus, the attempt, in their ;wn words;"to formulate a broad
and equitable accommodation of interests of States in the exploitation and
use ofthe living-resources of the high seas, taking inIo account the depen-
dence on fishing of both coastal and other States". With respect to the
preferential treatment that should be accorded Io coastal States, the Japanese
.roo.sals disting-ish between develooinz.an. develooedcoastal States.
A <lei,elopoi~con<t.il Stdte should he entitlcd IO rçscrve iinniinll)for irrhg
that portion of the iillo\iablecdtch of a stock of fishiican h;irvest on the hasis
of the fishing capacity of ils coastal fisheries, and that portion may become
greater according Io the rate of growth of the fishing capacity of that State
until il has developed that capacity to the extent of being able Io fish a major
portion, e.g., approximately 50percent. of the allowablecatch of the particular
stock of fish.
A developedcoastal State, on the other hand. should be entitled to reserve
for its flag that portion of the allowable catch of a stock of fish which is
necessarv Io maintain ils locallv .ond~ ~ ~ ~mall-scale coastal fisheries. and
in determining rhor portion interests of traditionally established fisherks of
other States should be duly taken into account. No preferential righ:s of the
coastal State should. however. be recoenized in resoect of hiahlv~miaratory
stocks of fish; the conservatio" andregulation of such stockssh&uld;emain
within the province of the existing international or regional fishery organiza-
lions.
The United Stateshave made it clear, by an intervention of their delegateon
29 March 1972, that they a,ereopposed to the creation of a zone of exclusive
coastal State jurisdiction beyond the 12-mile limit. In their revised draft
fisheries article, submitted to the United Nations Sea-bed Committee on
4 August 1972 as document A/AC.138/SC.II/L.9, they proposed a new
approach for the solution of the conflict of interests between States with
predominantly coastal-based fishing fleets and those with predominantly
distant-water-fishing fleets, a conflict of interests which exists in some way
already within the fishing industry of the United States themselves. The new
approach of the United States consists in providing for difierent régimes
according to the categories of fish, nomely. for so-called "coastal" and
"anadromous" resources and for the so-cdlled "highly migratory oceanic"
resources. The United States oro.ose,~~~t the coac.a~ ~tate should be entitled
Io rcgulatc and hate prefcrcntiiil righti 10 the so-ciillcd "c<in\iiiI" rcsourx, in
the uater, adjacent to iiiicrritori;irea .tpIO the Iimii* of ihc m\grntorr range
of these soecies. while the so-called "hichlv rnieratorv oceanic" resources
-. - ~.
should no1corne undcr the conjt;il Stlitc's jurisdlctlun. but thrir rrplo~l~tiun
shuuld be regiilated hy appropriate fishçricr' urganization~ in which all States
have an equal right IOparticipate.
With respect Io the so-called coastal species, the coastal State should, in
order Io assure the maximum utilization and equitable allocation of these
resources. apply the followina ~rinciples: the coastal State should ~rovide
iicces5by othcr~~tiitcs IO thdr Fiirri<in'oftheresoiirccs not fully uti1:rcd by ils
oun \essel\. on thc ba\ii ot'tl~e following pr.oriries in the lirjt pla~e.ticcss
5hould bc accorded io S131r.ithat ha\c ~raditiun~lly 1ishr.d fi~r n ,pccific
speciei; in thc second place accos \h,?uld bç accordcd to St~tesin thc rcgi<>n.
pnrticularly I~ndlocLcJ Stntcs ;iiid other Sidies w.th limitcd acces, to the
resources with whom joint or reciprocal arrangements have been made; in
the third place accessshould be accorded Io al1other Stiites witliout discrimi-
nation.302 FISHERIES JURISDICTION
The coaslal State and the appropriate international fishery organization,
each with respect to the species under il5jurisdiction, should be entitled to
impose catch limitations or other conservation measures, but such measures
and their imolementation should not discriminate in form or fact against any
fishermen. ~his concept proposed by the United States needsfurther elucida-
lion, in particular with respect to the question what speciesshould be catego-
rized as coastal or hiahl- mi.rato... and.h.w the mieratory range of the
ccisstxl spccies nhich scii the limit for the co~rial ~iaiei~tirir~~iiun~rould bc
deieriiiincd. But it 1, JI lc3st clcar ihxt the United Si3tes ;ire. in principlc.
opposed to the establishment of wide exclusive fisheries zones.
A similar approach to the matter was taken by Canada in its working paper
on the management of the living resources of the sea, which has been sub-
mitted to the United Nations Sea-bed Committee on 27 July 1972 as docu-
ment A/AC.138/SC.II/L.8. Canada also recommended a functional approach
to the allocation of the living resources of the sea. Its proposals distinguish
among others between the category of the so-called coastal species which
inhabit nutrient-rich areas adjacent to the Coast, or at least return to the
shallow coastal areasto reproduce, and on the other hand the category of the
so-called wide-ranging species which include most of the large pelagic fish
such as tuna and others. Here. too. the coastal State's oreferential rieht to
utilizc ihe coait31 .pc.ie\ iirccognized. ior the ;dicgory oi rlic srids-ranging
ipccicr. h<iae\cr. sn internsiional adthority coiiipoied of the Stlres intere\tr'd
in the catch of such species is recommended as the most appropriate mecha-
nism for management of theseresources.
T11eCollrr odjoi,rned/rom 11.25 10 11.50 o.m.
Mr. President, Members of the Court, 1had just finished talking about the
Drooosals made bv the distant-water fishine States in the United Nations
~ea:bed cornmittee. In this context 1shouldnow refer to the position of the
members of the European Communities, which comprise among others such
imoortant distant-water fishine States as the United Kinedom. the Federal
~e'public of Germany and raic c ~eh. se~~tateshave not corne forward in
the United Nations Sea-bed Committee with proposals of their own with
respect to the fisheries régimeon the high seas. It is, however, no secret that
theseStates still adhere to the concept of the freedom of the high seasbeyond
the 12-mile limit; their delegates have voiced their opposition to wide ex-
clusive fishing zones in the discussions which have taken place in the United
Nations Sea-bed Cornm-~te~ ~~~~.
The Federal Republic of Germany, not being al that time a member of the
United Nations. could not take part in the discussions of the United Nations
Sea-bedCommittee asa full member. T~er~ ~ ~ t~ ~ ~ ~ral Reoubl~ ~has no1
been'able to express its views in this Comrnittee, and its silencéto the views
which were expressed by other States in this Committee cannot be used in
any way as a legal argument against the Federal Republic. 1 should recall at
this point that in each case where it cornes to the notice of the Federal
Republic that a State had by proclamation or legislative act extended its
maritime jurisdiction beyond the 12-mile limit, the Government of the
Federal Republic lodges a diplomatic protest to the effect that the Federal
Republic does not recognize any such extension.
So much for the positionwhich had been taken by the distant-water-fishing
States in the proceedings of the United Nations Sea-bed Cornmittee. 1 shall ARGUMENT OF MR. JAENICKE 303
now turn to another group of States which have nothing Io gain by the
establishment of wide economic zones, and which mus1rather fear that their
r-nht tofish on the hi-h seaswill become meaninales- if most of the fishing -
grounds arc clo,ed Io thcni There are tht)sc Staic\ *hich on nccoiinl of their
smdll coî\t. or of the part~;ulir gcogr~phicdl conligurîtion of Ihcir coi~tI.ne,
would not be able to claim, under the concept of the economic zone, equiva-
lent broad areas in the high seas before their coasts as most of the States
which advocate the economic zone concept.
In the same position are those States which border enclosed parts of the
high seassuch as the riparian States of the Baltic Sea. the North Sea and the
Mexican and the Persian Gulf. Finally, there are the so-called land-locked
States, which have no coastline and therefore could not claim any area of the
high seasshould they wish to take up fishing activities on the high seas.Some
of these States which fall under the categories 1 have jus1 mentioned, and
which might summarily be called disadvantaged States under the economic
zone concept, have come forward with proposals which claim fishing rights
in the economic zones of the advantaged States,should this concept become
law. 1 refer in this respect to the draft articles on resource jurisdiction of
coastal States beyond the territorial sea, submitted by Afghanistan, Austria,
Belgium, Bolivia, Nepal and Singapore to the United Nations Sea-bed Com-
mittee on- 16 July 1973 as docuinent A/AC.138/SC.ll/L.39. These States
claim that should an exclusive economic zone be established adjacent to the
territorial sea, disadvantaged States, which cannot or do not declare such a
zone, should have the right to participate in the exploitation of the living
resources of the zone of neighbouring coastal States on an equal and non-
discriminatory basis.
Two land-locked African States, Uganda and Zambia, in their draft
articles on the orooosed economic zone. subrnitted ta the Uriited Nations
Seî-bed ~~niin'iileé on Ih July IV73 a! Joiiirnent A/AC.i38/SC lllL.41.
propox thai in.;tead of ihc estitilishnicnof an cxilusivc sconoinii zune lor
each coastal State, regional or sub-regional economic zones should be estab-
lished, within which the fisheries should be reserved for the exclusive use by
al1 the States within the relevant region or sub-region. In the sarne direction
goes the proposal submitted by Jamaica in its draft articles on regional
facilities for developing geographically disadvantaged coastal States, sub-
mitted to the United Nations Ses-bed Committee on 13 August 1973 as
document A/AC.138/SC.LI/L.55. The concept of this proposal is spelled out
in Article 1, paragraph I. where it is said:
"ln any region where there are geographically disadvantaged coastal
States, the nÿtionals of such States shall have the right to exploit. on a
reciprocal and preferential basis, the renewable resourceswithin maritime
zones beyond 12miles from the coasts of the States of the region for the
purpose of fostering the economic development of their fishing industry
and satisfying the nutritional needs of thepoDuiation."
Geographically disadvantaged coastal Statesare defined in this proposal as
those developing States which:
"for geographical, biological or ecological reasons-
(i) derive no substantial adviintage from the extension of their maritime
jurisdiction; or
(ii) are adversely affected by the extension of maritime jurisdiction of
other States; (iii) have short coastlines and cannot extend uniformly their national
jurisdiction."
Finîlly. ihere ira proporÿl by Zairç,an Afr~canSlslcaiIha \Cr) mail coî\l.
line, whiih ira5 suhmiitcd on 17 Augurt 197) to the United Ssiions Sea-bcd
Coniiiiiitec as docunieni ,\lr\C.138~SC.ll~L.hi) The cIr;ifi ariiclei on fishine
proposed hy Zaire provide that landlocked States and geographically dis-
advantaged States should have the right Io participate on a footing of
equality andwithout discrimination in the exploitation of the living resources
of the economic zones of neighbouring coastal States.
1should mention in this context, also, ihe proposal concerning a sa-called
intermediate zone submitted by the Netherlands to the United Nations Sea-
bed Committee as document A/AC.138/SC.ll/L.59 on 17 August 1973. This
rather complicated proposal was meant as a compromise proposal for the
purpose of cqualizing the positions of geographically advantaged and disad-
vantaged States in an economic zone concept, should the Law of the Sea
Conference adopt such a concept.
The Netherlands uroposal orovides that the coastal State would be entitled
to make the e\ploii~iio" of the living anJ non-lii,ing resourses in siich3 rone
suhjcct 10 n Iicelisç under rules and regul.ition\ io be ert4blished by the coni-
uetent international organizations. ~hë coastal State should. however, in case
it is a so-called advan&ed State, accord such licences not only Io ifs own
nationals but also to nationals of sa-called disadvantaged States. The propor-
tion of licences accorded to nutionats and foreigners (rom such dissdvantaged
States would have to be determined either by agreement bctweeii the States
concerned or by decision of the cornpetent international authority on the
basis of the relative amount of sea area which would accrue io each State
under the econornic zone concept. This relative amount would have Io bc
measured in relation Io ils total land area and adjusted in case of dispropor-
tions resulting frorn a grossly unequal distribution of resources in the respec-
tive zonal areas.
PiII these proposals which 1 have just iiientioned of the geographically
disadvantaged States, show that those Statcs which cannot dcrive substantial
benefit from the economic zone concept are not prepared to accept such a
concept if it would irnply exclusive exploitation rights of the coastal State
wirhin wide areas of the high seas.Such a concept would indeed, ifadopted
by the Conference on the Law of the Sea, lead to the monopolization of the
control over the fisheries of large areas of the high seas in the hands of a
limited number of geographically advantaged States.
The opposition against the economic zone conceot which made itself felt in
the procëëdings of Ïhe United Nations Sea-bed ~ommittee, forced the States
which advocate the economic zone concept to modify it in their laier propos-
ais suhmitted Io the Committee. In the houe of winning the supp-rt of
gcographirîlly dls.ididnijgcJ Statei, their Iaicr prtipoials proiidc lor ï liiii-
lied ;icccsr by such disa<lv;inlagcd States ro ihc esonoriiic zone. In sume of the
more recent proposals which contain the economic zone conceut, il is provided
that the coastal~~tatesshould accord, in their econoniic zon& neighbouring
disadvantaged States at least a preferential treaiment over third States in
granting fishing licences, as long asfishing is not reserved exclusively for iheir
own nationals. 1 niay refer in this respect to some of the proposals 1 have
already mentioned earlier; there is a proposal of Uruguay (UN doc. A/AC.
138/SC.II/L.24) which advocates an extension of the territorial sea of the
coastal States up Io a distance of 200 nautical miles. but provides also that ARGUMENT OF MR. JAENICKE 305
coastal States should. throu~h bilateral or subregional agreements as the case
may require, accord to tat tehasving no seacoait whichare their neighbours
or which belong to the same subregion, preferential treatment over third
States with regard to fishinr rights in that area of the territorial sea for that
pari of the catch whhichis noi rcicrved chillsivelyfor rhecrnaiionals
Simildrly. ihc propos.11submiilcd hy Ccuador. Panania and Per~\vh~<halsa
provides for an extension of the sovereignty of the coastal Stüte up to a
distance of 200 miles (UN doc. A/AC.I38/SC.lllL.27). contains the provi-
sion that in regions or subregions in which certain coastal States, owing to
geographical or ecological factors, are unable to extend the limits of their
soverei-.tv and iurisdiclion uo to distances eoual to those adooted bv other
coajial States in the sanie rcgion or subrcgion. the former States shall enjoy
in the national seaof the Isttcro prefercntisl rcgime in relation to third Statc?
in matters of fishine on the basis of reeional. subreeional. or bilateral aaree-
ments betwecn iheStatcs concernerl. ihe p~oporai,ubniiitçrl hy ~rgciiina
(doc A/AC 13X/SC.ll/L.37) con1:iins a similar provision.
Other recent proposals which provide for the establishment of an economic
zone are more liberal, in so far as they would accord national treatment Io
neighbouring disadvantaged States. Under this category 1should refer to the
draft article on fisheries submiited bv Canada. India. Kenva and Sri Lanka
(doc. A/AC.138/SC.II/L.38), which kould allbw coastal States to establish
an exclusive fisheries zone beyond the limits of their national territorial sea,
but provide also that neighbouring developing coastal States should allow
each other's nationals the right to fish in a specified area of their respective
fisheries zones on the basis of long and mutually recognized usage and
economic dependence on the exploitation of the resources of that area. They
provide further that nations of a developing land-locked State should enjoy
the privilege to fish in the neighbouring area of the exclusive fisheries zone of
the adjoining coastal State on the hasis of equality with the nationals of that
State.
Similarly, the articles on an exclusive economic zone submitted by Algeria,
Cameroon, Ghana. lvory Coast, Kenya, Liberia, Madagascar. Mauritius,
Seneaal. Sierra Leone. Somalia. Sudan. Tun.sia~ ~ and Tanzania (UN doc.
A/AC.I~~/SC.II/L.~O); provide' that nationals of a developing land-locked
State and other geographically disadvantaged States should enjoy the privi-
le-e to fish in the exclusive ecoriornic zone of the adioininc ne.rhbo. .ns
co~rt.ilSt~tc~. .inJ prcii ide furthcr thdt ncighbouring deicloping St.11cs\huiild
grdnl rcriproc~l prefcrcnii.!l trestiiienrIO cine dnothcr In the c\pl~iit.iiiùn of
the living resources of their respective economic zones.
The most liberal proposal in granting accessto the econoniic zone to other
States is a proposal subniitted by Malta (UN doc. A/AC.I38/SC.ll/L.28).
Although it allows each coastal State to extend its jurisdiction to a belt of so-
called national ocean space up to 200 miles and lo reserve the exploitation of
the living resources therein to ils nationals. it is provided that this régime
should not affect traditional suhsistence fishing or the catching of fish for
itiirnrdiatchunian consumpiion by Foreign fishirmen in the naÏional occan
5pacc; in dddition. the ioasial Siiiie rhould be undcr an obligation io grmt
adjacent land-locked couniries access to the living resources in the national
ocean spaceon conditions similar to those applicable to nationals.
What then are the conclusions that have to be drawn from the complex
picture of the proposals which have been tabled in the United Nations Sea-
bed Commiltee?
The multitude of divergent proposals which were submitted to the Com-306 FISHERIEJ SURlSDlCTION
niittee and the coniradicting vieus wh~chucrc c.xprc.;~edin ihe discussions of
the Committee with respect IO these proposïls. which I cannoi revietv here in
detail. have made it a..arent that the conceot of an exclusive economic zone
has not yet gaincd substiiniial and unrc<cr\eJ wpport froni States other than
those whiih origin~lly iidvscated this concept On the contriiry. the conccpt
of an exclusive economic zone has aroused much criticism not only from the
quarters of the distant-water fishing States, but also from the quarters of
those developing and developed States which are not in such a favourable
geographical position as to be able to use the economic zone concept for
claims of exclusive jurisdictionover vast areas of the high seas. It has been
pointed out that if the economic zone concept were to become law nearly al1
important fishing grounds in the world would come under the exclusive
jurisdiction of one or the other coastal State.
1should refer in this context specifically to the intervention by Ambassador
Pardo of Malta on 8 August 1973 in the Second Sub-Committee of the
United Nations Sea-bed Committee. where he exoressedgrave-concern at the
light-he.iricd rciidineçs to transfcr :ires.; of the oceans, which hecrtiniated
iis repreienting ne~rly 35IO40 per cciii ol'thc ozeïn spïce. from ihe intcrn3-
tional to the nationaljurisdictiowithout providing sufficient guarantees for a
proper management of the fishery resourcesin the interst of the international
commuriity.
If one reads the 1973 Reoort of the Second Sub-Committee of the United
Nations Sea-bed cornmittee, summarizingtheviews expressed in the discus-
sion of the Sub-committee, it becomes apparent that with respect to the
ex~loitation of the fisherv resources bevond the territorial sea a ProDer
balance between the diffcicnt inlerests i&olved had not yet becn fiund. 1
refer in this respect to paragraphs 52 to 53, 58to 6372 to 76 and 83 to 84 of
the Sub-comniittee's Reoort-the reoort is uublished as an Annex to the
Kepori ol'ihç ~ummitieé on the l>rïrC~ul UIC'S(if ihc Sed-bcd ;inJ the 0ic:in
Flour hcyond the I.iiiiiis ol' Salions' Ji.r.s.lict.piibli>hed a\ S~pplcnicni
So. ?I uf the Ollictt,l K<~urd, of the Ciencrïl Aiicmhly's 28th Scsjion.
Volume 1, pages % to 60.
In short, no generally accepted concept for the future legal régime of
fisheries has as yet emerged from the preparatory work in the UnitedNations
Sea-bed Committee. In particular, the concept of an exclusive zone did not
find sufficient recognition among other States as to be of any juridical rele-
vance for the present dispute before the Court.
Nevertheless. it is a fact that the Drese- -eeal réeimefor the fisheries on the
high seasis constantly being attacked, in particular by developing States, as
being outmoded and unequitable. The Government of the Federal Republic
has given careful consideration to the complaints which have been voiced
against the present legal régime of fisheries from different quarters and foi
different reasons.
But the Federal Republic of Germany is still unable to perccive that a legal
régime which would put practically al1 the fishery resources of the oceans
under the national controlpf a limited number of States, could be regarded
as more equitable than the Dresent régime. which is founded on the equal
right of each State to have aicess to théfishery resources of the oceansHOW
defective the present system of freedom of fishing on the high seasmight be in
practice, it cannot be denied that it is inherently equitable becauseit provides
equal opportunities for al1States and in so far Cor;esponds to the principle of
equality of States. 1think that there are more alternatives available to remedy
the deficiencies of the present régime of fisheries than the simple choice ARGUMENT OFMR.lAENtCKE 307
between the concept of the freedom of fishing on the one hand and the coastal
State's rule on the other.
The dissatisfaction with the existing régime of fisheries has mainly two
sources:
The first more general complaint is directed against the lack of powers to
deal effectively with the problem of the conservation of the living resources of
the sea. It has been pointed out that the present régime, coupled with the
development of modern fishing techniques and the increase of fishing effort,
encourages the over-exploitation of the fish stocks, and that the existing
fishery organizations are too slow and ineffective in adopting conservation
measures and securine their obse- ~nce. Whether it would be a sound alterna-
tive to give each coaGal State exclusive jurisdiction over the waters before ils
Coastfor the purpose of conservation. is also questionable, becausethe record
of coastal ~tateshas also not be~ ~ ~v reassuiine in this resoect.
The second more spccial cornplain; againsi th; preseni régimeof fishrricr
conies froni the qusrteri of the devclop~ngStates. Thcse States cornplain lhat
unJer the prtnctple of the freedom of thrir fishing the distant-waler fishing
States coiild e~ploit the fiihcry rcsources beforc iheir coasis. uhile they thern-
selres, u irhuiii an equally etficiciit fishing indusiry, are no1capable of partici
oating in the exoloitation of these resouices andwould derive no immediate
economic benefit therefrom. Whether developing States would derive more
benefit from the fishery resources hefore their coasts if they were accorded
the exclusive right to exploit the fishery grounds before their coasts, is,
however, also questionable as long as they have not built up an efficient
national fishing industry.
The establishment of wide areas of national iurisdiction in the oceans does
no1 cimiribute to an efisti~c iiianagenient <>îthe fiihcry resources in the
inicrests of the international commtinity. Iris a primary intcrcst of the interna.
iional com~iiunity that ihc lisherv resources of the ocean uill be fully utilized
for the purpose of broadening the available food potential, and at the same
lime be guarded against over-exploitation.
lt needs no further explanation that an international management of the
fisherv resources is needed in order to keeo a orooer balance between full
utilization on the one hand andcotiservation on.the'other. Individual actions
of coastal States within their respective national areas will rarely correspond
to the miaratorv .anee-of the different soeciesof fish and will lack the neces-
Sary consistency w,ith exh other. ~iich'niorc information and expertise rrill
be availahle IO the internaiconal filhcry organ,nr,on., than tt) the indi\,idual
coastal State. Decisions of internation~al fisherv ornanizations seem to offer
betier guaranices for balanced and scientibc~ll; ftiundcd conser,ation
meiçures ihan those taken by indibidual coastal States, somctinics under local
political Pressure. Certainls. the soecial interest of the coastal State in preser-
ving the fishery reiourrei hefore its soast niurt be rccogni7cd. and this inierest
might he a valuable and neccssary element in forcing the competent interna-
tional fishery organizations into action.
Thus. instead of establishing exclusive regulatory powers of the coastal
State, the effort of the forthcoming Conference on the Law of the Sea should
better be directed to the creation of world-wide, regional and functional
fisherv oreanizations and to the strenethenine of their reeulatorv oowers:
~ ~ ~ -~~ -
theseorgakzations should be enabled to act on majority d&ision<a"d thei;
regulations should bind al1 States which oarticipate in the fisheries under
their competence.
However, the coastal State also should play its proper role in the process ofcontrolling and regulating the fisheries on the high seas. It had been rightly
pointed out by some speakers in the discussions of the United Nations Sea-
bed Committee that the proper role of the coastal State would be to act as
guardian or trustee of the interests of the international community in the
preservation of the fishery resources before its coast. It might even be con-
ceivable to endow the coastal State with more direct than mere residual
oowers for imoosine conservation measures ~ ~ ~~~- ~ ~ ~ soecified area and for a
~C ~ ~
Specified stock'of fish before its coast, subject of course to the supervisory
authority of the competent fishery commission and suhiect further to the rule
that anv conservation measure imoosed bv the coastaf~tate must be aoolic-
~ ~ . ,
ahlc cq~ülly ag.iin,t f~)rcigncrs and naiicin.ili rvithoul Ji~criiiiinaiian in lan
or in Tact.The iirci.il uorh thdi h.i$ :ilre.id) bccn donc b) thc Intcrn~tion.iI
Commission Corthc Sorth-\Vcsi Atl.intic tisheric\ h.ii .ilrr.dJy rlenioiistrîtcd
rhc sspabilities inhcreni in thc :i>n:cpt si the inicrnaiisnal nidnagciiicnt <if
fishcrs rrs<iurc.cs by region.il ci>mniissi,>nr 1 riibiiiit thir thii ir .i hetter
aDoroach to the solution of the oroblem of international fisheries than bv
cieating a lot of national exclusiv~fishery zones.
1 shall now turn to the question of the equitable allocation of the fishery-
resources of the oceans among the States of the world; this is one of the
central problems with which the Conference on the Law of the Sea will be
confronted. The complaints made by developing States about the present
legal régime of high sea fisheries have their real source not so much in any
inherent inequity of that régimebut rather in the special factual situation of
the developing States; which do no1 feel able to use the opportunities under
the régime of the freedom of fishing to the full satisfaction of their national
interests. By claiming exclusive rights over the fishery resources within a
200-mile zone before their coasts, these States pursue a double purpose,
namelyCfirst, to guard the available resources before their coasts against
over-exploitation by distant-water fishing fleets until they will be able to
develop an efficient and cornpetitive fisheries industry of their own for ex-
ploiting these resources; and second, to obtain immediate benefits to their
econoniy from the exploitation of the fishery resources before their coast by
licensing foreign fishing in return for fees or other financial or economic
assistance.
It is submitted that theseinterests of the~develonine ~ ~ ~s do not cal1for a
r~~ - ~ ~ ~ ~
fundamental change in the present legal régime of fisheries or, more speci-
fically, for a reallocation of the fishery resources of the oceans.The interest of
the developing coastal States to pr&erve the fishery resources before their
Coast for future utilization has nothing to do with resource allocation, but
is rather a problem of providing adequate and effective macliinery for the
conservation of fishery resourcesal1over the world; 1have already dealt with
this problem in my argument, and 1can only repeat here that it can be solved
better by international managenient than by transferring exclusive jurisdic-
tional rights on each single coastal State. The interests of developing coun-
tries to derive some immediate benefit from the exploitation of the fishery
resources before their coasts is understandable; but this problem has not
really been created bv the oresent réeime of free fishine in the oceans. This
problem has rather bien créatedby the different levels of development of the
States in the world. This problem could be solved better by sound interna-
tional development policies than just by transferring ownership of the fishery
resources of the oceans to a limited number of geographically advantaged
developing and developed Statesand thereby creating new inequalities.
The real problems of resource allocation arise in those caseswhere certain ARGUMENTOFMR.lAENlCKE 309
fishing grounds on the high seasare already fully exploited by fishermen from
different countries and where the preservation of the fish stocks calls for catch
and effort limitation for certain or al1 speciescaught in this area. It is here
only that the problem of an equitzible allocation of the resources among the
participating States poses itself, with al1 the political, economic and legal
intricacies connected with cases which require the exercise of distributive
justice. In view of the development of more sophisticated fishing techniques,
the wider ranee of action of modern fishine vesselsand the increase of fishine
effort, the situations where fully expl$ted fish stocks~will haveto be regulatei
will arise more often in the future. More fishina gr. .ds and more species
will need such regulation.
Thus, the equitable distribution of the available resources among fishing
States will become one of the mos! important problems which the legal
reeime of fisheries on the hieh seas will have ta solve. Althoueh catch and
efort limitations and the resilting allotment of national quota;are by their
very purpose conservation measures. not al1 international fishery organiza-
tions have set been endowed with the necessarv Dowersto imoose su'h catch
and eiTori liniit;ition> .idihc alloc:ition of naii&.ilqiiotas
The Iniernaiional Coiiini~ision for the Fishcries of the Surth-West Atlantic
is outstandine as an oraanization which has introduced such reaulatorr
measures and demonstrated that the attribution of such functions Io a
regional international fisheries organization is a workable solution under the
existina international leeal réeime of fisheries. Unfortunatels. Iceland's
artitudë has so fsr prrvrnrcd th; iiieniher Staies of rhr. h'orih-Ca51 Arlîniic
Fishcries Coiiirnission froni providinp ihis Coniniission wiih similîr poucri.
An asiuuni i,f the hiilor). uf the Forth-East Atlaniic 17irherie, Commission
aiid of the de\elopmcni of iii repulatory powers hïs bcen givcn in Part II.
pdragraphs 26 IO 52. of !lie Menioriîl of the Federiil Rcpublic uf Germÿny.
filed on I Aueust 1973
-
Tlicrc is strong CJS~ for urging the iorrhconiing Ct>nfcrence on ihe Law
of 1hcSca Io ,irengihc.n the role of the intern~tio~ial fisher). coniiiiissionc by
a~~ro~riate procedures and bs obliaina al1States which particivate in fishing
aciivities under the geographicd or FunCtionalcornpetence of thécommissions
either to become a member of the Commission or to recognize the regulations
issued by the Commission as bindina for its fishine. vessels. Such a sysreni
seems to offer better eu-rantees ~~r an -aui~~.le a~o-~~~~~~ of the available
resources among the participating States than to adopt the economic zone
concept which would make a limited number of coastal States sole arbiters in
this respect.
The central and most controversial issue, however, will be the determina-
tion of national quotas in a catch and effort limitation scheme. Much will
depend on the choice and weight of the criteria which will determine the
share of each State which participates in the fishing of a certain fish stock. and
in particular, the share of the coastal Stare. Coastal States have claimed
preferential treatment in the determination of their shares in the fishing ofa
certain fish stock, and those States which have a local fishing industry which
depends on the fishery resources before their coasts have even claimed prior-
ity in exploiting the fishery resources before their coasts to the limit of their
full capacity.
Il seems that the claim for preferential treatment has, in principle, been
recognized by the other States in the practice of the fishery commissionS; the
proposais for a new fisheries régimewhich have been made by such important
distant-water fishing States asJapan, the Soviet Union and the United Statesin the United Nations Sea-bed Committee will accord developing States the
right to that part of the allowable catch which their fishing vessels would be
ab~ ~to~harvest. orat least. asJaoan ProDoses. such amount as would repre-
sent a major part of the total ailowiblé catch. But no exclusive right oithe
coastal State to the fishery resources in the waters of the high seas before its
coast bevond the 12-milelimit has ver been recoanized in oractice. althouah
such clsLmshave been made with reipect to the so~called anadromous species.
such as salmon, and even for so-called coastal species which do not migrate
bevond the coastal area,
Under the principle of equitable allocation, a coastal State cannot claim
priority under al1circumstances because other States may likewise depend on
the fisheryresources of the same fishing ground. in particular because these
other States may no1 be able to satisfy the demand of their home market
from the fishing grounds before their own coast, or from elsewhere. The
dearee of dependence of each State which participates in the fishing of a
certain fishstock may Varyvery much; many &tors will have to be taken into
account and no general and abstract rules could be formed in this respect.
Therefore, the economic zone concept, which would once and for al1decide
the matter in favour of the absolute priority of the interests of the coastal
State, without regard to the interests of other States, would be as inequitable
as a system which would fail to recognize a special dependence of the coastal
State on the exploitation of the fishing grounds in the waters adjacent to its
coast. The theory that the fishery resources in the waters before the coast up
to the arbitrary limit of 200 miles were the property of the coastal State not
only lacks any foundation in the legal conviction of the international com-
munity but, and that is even more important. is inherently unjust because it
allocates nearly al1 important fishing grounds of the oceans to a limited
number of eeo-ranhi~7llv adv,nt~eed States. ~~
Thercfore it1sa dcmand of reason and equiry rhat the distribution of the
10131 allowable catch beiueen the cod<tal State and those oiher States whkh
are fishinr! on the same fishine eround should not be left to the unilateral
decision of the coaGal State ontk sole basis of its own interests. but only to
the decision of the competent international fisheries organization or, in the
absence of such a decision. to an agreement between the States concerned.
Such decisions or agreements will haie to determine the margin of preference
which should be accorded to the coastal State in the light of al1 relevant
factors and with due regard to al1 interests involved, in particular to the
dependence of each State on the fisheries in question.
1 submit that there is no valid reason to assume that the present legal
rkgime of fisheries. which is founded on the orinciple of the eaual riaht of
access to the fishery resources of the oceans, is inequitable and shouldthere-
fore be abandoned. Although ifneeds more elaborate rules for the allocation
of the available fishery resources and in particular a more efficient interna-
tional machinery for the management and regulation of fishing for fully
exploited fish stocks, its guiding legal principles serve the interests of the
international community better than any other régime under which the
fishery resources of the oceans would become subject 10 the exclusive rule of a
limited number of coastal States.
The Courr adjournedfrom 12.45 10 3 p.m.
1 shall now proceed to the next major issue in this case, namely to the
question whether the situation of the fisheries in the waters around Iceland ARGUMEN OTF MR. JAENlCKE 311
has special feaiurcs which rrquire spccial consideraiion. The hisiory and the
developmcnt of Gcrman and Iccllindi~risherbesin the waters around Iceland,
the present situation of the fish stocks in these waters, the management and
reeulation of these resources under the aus~ices of the North-East Atlant~ ~ ~~ ~~ ~
FLheries Commission, and the degree of dependence of the ~ederal Republic
of Germany and Lceland on the fisheries in these waters have already been
dealt with in great detail in the first, second and third parts of the ~emorial
of the Government of the Federal Republic filed on 1 August 1973. l'do not
believe it necessary to repeat al1 the facts assembled in these parts of the
Memorial todav. These facts have not been disouted bv the Government of
lceland in the iroceedings beforethe Court. It i; true th& the Government of
Iceland, in itstelegram addressed to the Court on II January 1974,has raised
a aeneral objection to al1the facts and arguments contained in the Memorial
of the Federal Republic. However, thi; objection has not been brought
forward in the proper form of a pleading beforethe Court and, what is even
more important, lacks any substantiation.
However, before 1approach the legal aspects of the special situation, if any,
of the fisheries in the waters around Iceland, it may be useful for a proper
evaluation of the situation of these fisheries to give the Court a concise
picture of the situation of the different fish stocks in this area.
We have here with us in the delegation of the Federal Republic of Gerniany
as counsel and exoert Dr. Arno Mever. member of the Hieh Seas Fisheries
Department of thé Fishery ~esearch lastitute of the ~ederal Republic. Dr.
Meyer has been connected with fisheries research for quite a long time and
has participated many times as an expert and chairman of expert groups in
the work of the North-West and the North-East Atlantic Fisheries Com-
missions and in the International Council for the Exploration of the Sea. He
has been chairman of the Demersal Fish Norlhern Committee in the Interna-
tional Council for the Exploration of the Sea.
Mr. President, 1 would like to introduce Dr. Meyer to the Court and ask
you to allow Dr. Meyer to take the floor for a statement, from the scientific
point of view, on some biological facts and fishery-regulation aspects in the
sea area of Iceland. 1shall later continue the presentation of the case of the
Federal Republic. STATEMENT OF DR. MEYER
COUNSEL AND EXPERT FOR THE COVERNMENT OF THE FEDERAL REPUBLIC
OF CERMANY
Dr. MEYER: MI. President and Memhers of the Court. This morning an
envrlope was distrihuted to you. In my speech 1 shall refer to the tables and
to the figures contained in that envelope and 1will star! here with figure I.
The distribution of the fish stocks in Icelandic waters, their life-cycle, their
behaviour, their migration and their reproduction is directly connected with
the hydrography in this area. In the North Atlantic the warm saline water
of theGulf Stream is the main basis ~ ~ ~ife.
Figure 1 shows the course of this important Atlantic hot water heating,
coming from the Caribhean Sea and crossing the Atlantic from south-west ta
FIGURE 1. SURFACE CURRENTS IN THE NORTH ATLANTIC STATEMENT OF DR. MEYER 313
north-east. You see on this fiaure that West of Scotland the Gulf Stream
splits and the left branch, calleitlrminger Current, transports warm water
to the south and south-west coast of Iceland. A right branch of the lrminger
Current, the so-called North Iceland Current. surrounds lceland in a clock-
wise direction with gradually decreasing temperatures due to the mixture
with the cold Arctic water of the East IcelandCurrent coming from the north.
Thus the south and the Westcoast of lceland are the warmest parts of this
island. Theeast coast, however, is coldestOR the coast of East Greenland, if
you follow the lrminger Current, this lrminger Current turns south, runs
parallel to the cold Arctic water of the East Greenland Current, and sur-
rounds South Greenland and moves northwards and brings the warmth 10
West Greenland.
Now 1 turn ta the fishery off Iceland, that is the lCES Region Va: the
yearly average catch in lcelandic waters during the last 20 years was round
about 1 million tons. This is shown in table 1. Only during the six years 1961
TABLE1. THEINTERNATIONAL CATCHIN ICELANDICWATERSDURINO
THE LAST20 YEARS FROM 1953 TO 1972 (IN 1000T)
to 1966did the catch rise considerably above this level, up to 1.4 million tons
in 1965. During the other 14years from 1953to 1960 and from 1967ta 1972
the international catchwas rather constant with an average of 934,000 tons.
Iceland, the United Kingdom and the Federal Republic 01 Germany are
the three main countries which exploit the fishing grounds around Iceland.
The United Kingdom and Germany have been fishing offIceland regularly
since the end of the pas1century. The catches of other nations in Icelandic
waters are negligible. Iceland, the United Kingdom and Germany take
regularly 96 to 97 percent. of the total catch.leaving only 3 per cent. for
other nations.
The main fish speciesexbloited are at present cod, capelin, saithe, redfish
and haddock. Up ta 1966and 1967herring also was of importance.
Figure 2 on the next page demonstrates in more detail the fisheries output
of the lcelandic waters since 1960, during the last 13 years. The green solid
line gives the total catch of al1nations, which varied considerably during these
13 years between 1,418,000 tons in 1965 and 798.000 tons in 1968. If you
follow thisareen line vou find the fieures there. The hatched ereen line further
down, which represents the total catch of al1demersal speciis shows, in con-
trast to the solid green line, a far more constant course swinging around an
average of around 728.000 tons. The svace between the two ereen lines re-
presents the very much varying cpantity of the two fish species,FIGURE2. CATCHES INICES-AREAVA IN 1,000T1960-1972
(Sourc Bulleisitnatistique)TABLE 2. THE CATCH IN ICELANUIC WATERS (ICES RECIONVA) FROM 1960TO 1972IN 1000 T
(Basic figuresfor fi1)herring and capelin, fish which are mostly turned into fishmeal and oil and
therefore are of only small value. Decisive for the economy are the high-
priced demersal fish and, among these, especially cod.
The 5 red lines in figure 2 respresent the catches made by Iceland itself.
The great fluctuations in thetotal catch-thatis the solid red line-arcaused
by the great fluctuations in the catches of pelagic fish, especially by herring-
that is the line with dashes and twooints-which, after a maximum catch of
590,000 tons in 1965, showed a drastic decline which was partly compensated
by a considerahle intensificationof the capelin-fishery up to 277,000 tons in
1972. The capelin-fishery is this very thin red line starting in 1963 at the
bottom and going upwards to the figure of 277,000 tons in 1972. For the
economy of Iceland, however, the yearly yield of the demersal species is of
greatest interest-and these demersal species are the red dotted line. This
curve makes clear that after 1968 demersal catches made by Iceland increased
considerably, with a maximum of 471,000 tons in 1970. During the years 1969
to 1972 Iceland took 52 to 60 per cent. of the total international catch of
demersal species. The most important demersal species for Iceland is cod-
that is the red line with dashes and points-with a maximum of 303,000 tons
in 1970.
The last two blue curves in figure 2 show the catches of the United King-
dom and of the Federal Republic of Germany. The fisheries of bath countries
are rather constant and are nearly exclusively directed to demersal species.
The average United Kingdom catch for the years 1960 to 1972 was 186,000
tons: this is 17oercent. of the total catch and.2- oercent. of the total demersal
catch. The average catch of the Federal Republic of Germany during the last
13years was 118,000 tons, which is II per cent. of the total catch a16 per
cent. of the total demersal catch.
The basic figures for this figure 2, together with the average for the last
13years, are given in table 2 on the preceding page.
The main fish species exploited are at present cod, capelin, saithe, redfish.
and haddock. Up to 1966-1967, as 1 said, herring was also of importance.
TABLE 3. MAIN FISH SPECIES CAUGHT OFF ICELAND (VA) IN 1972 BY ICELAND,
UK AND FRG IN 1000 T
(In brackets percentage of totals)
S~ecies Total Iceland UK FRG
Cod 399 225 ( 56)
277 277 (100) 1-7 (37) -2 ( 3)
Capelin
Saithe 108 60 ( 56) 14 (13) 31 (29)
Redfish 77 26 ( 34) 4 ( 5) 44 (57)
Haddock 39 29 ( 74) 8 (21) 1 ( 2)
Total of the
5 main species 900 617 ( 69) 173 (19) 88 (IO)
Total of
al1species - 970 658 ( 68) 185 (19) 94 (10)
Percentage of
5 main species 93 % 94 % 94 % 94 %
from al1soecies STATEMENT OF DR. MEYER 317
These are the five main species.In 1972thesefive speciesmade up 93 percent.
-900,000 tons-of a total catch of 970,000 tons, and this is shown in table 3.
This table )-the main fish speciescaught off lceland in 1972 by Iceland, the
United Kingdom and the Federal Republic of Germany in thousand tons-
eives also the oercentaaes from the totals for each of these five main soecies
sepürately for'the different countries. These percentage figures show ciearly
that lceland is the leading fishing nation in the ICES Region Va. It takes 69
oer cent. of the five mai'soecies and 68 oer cent. of allsoecies. Next is the
United Kingdom with 19 percent., followed by Germani with 10 percent.
From the cod, which is the most important fish in lcelandic waters. lceland in
1972 took 56 per cent. and the ~nited Kingdom 37 per cent.-you can see
these figures in brackets. For the last four years, the percentages were 61 for
lceland and 31 for the United Kingdom. The German interest in lcelandic
cod has always been insignificant. In 1972the German catch of cod made up
only 3 percent. of the total and during the las1four years it was 4.8 percent.
The fishery on capelin is conducted by Iceland only. From the saithe, and
esneciallv froni the haddock stock. lceland takes bv far the areatest auan-
lit;-56 per cent. and 74 percent., respectively. Only In the redfish-fishery, the
Federal Republic is since years theleading nation. The average of the las120
years was 66 percent.; in 1972it was 57 per cent.
Other species, which in 1972 were caught in this region in less quantities,
were catfish, Greenland halibut, ling, plaice. tusk and halibut. in quantifies
from 14,000tons Io 2,000 tons. But, if we compare these figures with those in
table 3,il should be borne in mind that the commercial value-lhat means the
first-hand price-of the catches of these six demersal species, which are
caught in rather sniall quantities, is at least threefold higher than the com-
mercial value of the 1972 maximum catch of 277,000 tons of capelin, because
the capclin is only caught for reduction purposes, for fishmeal and for oil.
Now we turn Io cod. From the earliest limes cod has been the most impor-
tant fish in lcelandic waters. During the last 45 years the total catch varied, .
before as well as after the war, between 350,000 to 550,000 tons. The consid-
erable fluctuations in the total catch of cod are mainly caused by the great
differences in the strengths of the year classes. Whether a year produces a
rich or a poor year class is decided mostly during the few weeks when the
larvae leave the floating eggs. A good year class results when al that very
moment when the larvae start feeding just the adequate tiny plankton is
available. If this is no1 the case and the spring-blooming of the plankton has
no1yet fully started, most of the larvae die and only a poor year class is the
result. Rich year classes are rare in lcelandic waters. However. ifthe rieht
food al the r/ght moment is available, then some years later such a rich yëar
class influences positively the outcome of the fishery for many years. And now
please turn Io figure 3.
Figure 3 shows for the years from 1928 to 1972-that is for a lime now of
45 years-the percental agecomposition of the cod spawningstock during the
spawning season. This figure demonstrates very clearly that some few rich
year classes dominate the fishery for many years; this means in the thirties
the very rich year class from 1922followed by the good 1924cod. You seeat
the bottom line of the figure the age of the cod from 4 Io 18 years and al the
left side of the figure the percentage scale for the diwerent years of catch. In
1931-that is the fourth year from the top-nearly the whole spawning stock
consisted of 9-year old cod-you see this in the long black line, this long
chimney there-of the 1922year class, which was very rich. Also in 1932-if
you will follow down Io the next year then these 1922cod are 10years old-.,:". : .
FIGURE 3. AGE COMPOSITION OF THE SPAWNING STOCK OF COD AT
{CELAND 1928-1972 STATEMENT OF DR. MEYER 319
the 1922-horn cod dominated, clearly, also in 1933. But in 1934the two-year
younger year class of 1924 is ofequal strength-you can seethis on the two
chimneys there under 1934. If you follow the two red lines 1 have drawn in
this figure, you will seethat, up to the year 1940, these two good year classes
were present and were running from 1928for a lime-series of 13years through
the fishery, and were of greatest importance. The most important year class
after the war was the year class 1945.The last very good year class was born
in 1961-this is the last green line you see on this figure. Why these year
classesare marked with green colour will he explained later on.
Now, please, turn Io the next figure. Figure 4 demonstrates very clearly
how the appearance of rich year classes, eight to ten years after they were
born, increases the catches on the spawning grounds. Thus the year class
from 1922, and then the 1922 and 1924cod together, produced the increase
in total catch to more than 500,000 tons in the early thirties. The very rich
year class 1945 made the total output increase from 1953to 1956with a new
record of 546,000 tons. The last maximum of the catch curve for cod in the
years 1969 to 1971 was due to the rich 1961 year class, directly followed hy
the good year classes 1962and 1963.also marked in green colours.
Now please turn to the next figure. Figure 5 shows the position of the main
spawning ground of the lcelandic cod in the coastal waters off south-west
Iceland-that is the dotted area. The area of spawning lies mostly within the
12-mile limit and the greatest part of the cod catches made hy lceland is
harvested here in this very area during the spawning season from March to
May.
The fertilized eggs ascend Io the surface layers and the fry is drifted away
hy the current in clockwise direction around Iceland. After round about a
fortnight the larvae hatch and during spring and summer the very small
codlings are settling in the fjords in the west and in the north, and some are
. reaching even the east coast of lccland with the current.
Now, the next figure, figure 6: in July and August an international O-
group survey, with the participation of the research vessels from many
nations, try to evaluate, with the help of echo-sounders and small-meshed
pelagic trawls, the strength of the newly recruited year class. Figure 6
demonstrates the 1971survey routes of five research vesselsfrom the Federal
Republic of Germany, Iceland, h'orway and the United Kingdom.
The next figure, figure 7, shows the result of this international work, the
distribution of theO-zrouo cod with the stron~estconcentrations in the north-
-.
western and northern fjords. Later in ~eptemher some O-group cod-you
will rememher that the survey stopped in August-will also reach the waters
of the east coast of Iceland.
For explanation 1 should Say that O-group fish are al1 those fish in their
first year of life. In the next year they are named 1-group fish. In figure 7, the
black areas mean that here more than 500 O-group cod-that issmall Cod of
about 4-5 cm.-were caught per nautical mile, fished with a small-meshed
pelagic trawl.
To beable to judge the strength of the new recruited year class,suchsurveys
must be repeated year hy year. This kind of survey. which has to be carried
out during a rather short lime, can only be conducted on an international
basis, for there is no country ihat has as many research ships and as many
scientists and staff asare neededfor such surveys and for other special surveys
for the 1 and 2-group cod. Only on the hasis of such O-group and young fish
surveys forecasts can be made. Only on the hasis of such scientific material,
comhined with agecomposition data from al1fishing grounds and the relevant d N W 4. V1 -
<D O O O O O O
N - D
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LID
W-
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W-
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m.
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-
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O
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w
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VI.
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wm - ear CI~SS1949
O - ->
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FIGURE4. TOTAL CATCH OF COD IN ICELANDIC WATE(VA)IN 1000T
FROM 1926TO 1972 STATEMENTOF DR. MEYER 321
FIG~JRE5. ~CELANDCOD; MAIN SPAWNING GROUND (DOTTED) AND
DRIFT OFEGGS, LARVAE, AND O-CROUP CODFIGURE 7. O-CROUP COD324 FlSHERlES JURISDICTION
catch statistics. a revulation of a fisherv can be underta~e~ ~~~ ~ ~ ~~ ~ ~f ~~
keeping the spawnin-g stock on the rigit level. to prevent overfishing and Io
get thc highest long-term protein yield from a fishstock.
Fieure 8 reoresents thesoawnine mieration of the cod off Iceland. A~~ ~ ~ -
as thiy are immature, the ;od remain in the shelf areas in the east, north and
Westof Iceland-this is shown by the cross-hatched area. Those cod that have
not died due to natural mortalitv and those that have not been cauaht -. bv the
fishermen during their immature life, start in the fall and early winter with
an ageof 6, 7 or 8 years for their first spawning migration. They swim against
the 'urrent and move in an anti-clockwise direction around lceland to reach
the warmer waters suitable for spawning off the south-west coast. Thus they
return to the area where they were born.
But no1 only cod of lcelandic origin approach the lcelandic spawning
grounds in the late winter monlhs. Also cod-and that is important-that
were born off east Greenland and stayed during their immature stage off
south and south-west Greenland-they drifted as fry to these areas by the
Irminger current. These mature cod now also join the lcelandic cod in the
spawning area off south-west Iceland. This is shown by the second arrow
coming from "East Greenland".
~fter spawning. which requires a lot of physical strength. the exhausted
spawners are carried by the current back Io the northern areas. Alter heavy
feeding during summer and fall, they start for their second spawning migra-
tion. Cod that have came over from East Greenland do no1 return Io Green-
land but join the Icelandic post-spawners and remain for their further life in
lcelandic waters.
The next figure, figure 9, gives an impression of this long-distance mi-
gration from south-west and south Greenland to lceland according to German
tagging experiments. The circles show where the cod were tagged and the
arrows where they were recaptured. The figure at the arrow gives the number
of days the cod stayed in the sea. These taggings were made during fall and
early winter. The quickest cod-a 7-year old female of 86 cm. lenglh, which
was caught off west lceland 147days after tagging-covered this long distance
from West Greenland, of at least 1,175 nautical miles. Io lceland with an
average daily speedof 8 miles or 14.8 km., and this against the current. This
is a distance of 2,180 km. which is the distance from Den Haag Io Istanbul.
The cod is a very strong and vigorous fish.
In figure 10 some localities of recapture are mapped out. The crosses are
recaptures during the time from 14 March to 20 May-that is round about
spawning lime. You will seeseveral crossesjust on the spawning places. some
near the spawning places. There is also some spawning even on the west-
coast. Some cod were recaught on their wdy to the spawning places shortly
after spawning. The dots you seein this figure are recaptures in summer and in
fall. All dots come from the northern and eastern feeding areas. Of special
interest are two recaptures off east lceland in September and November. The
otoliths revealed that thesetwo Greenland cod had spawned in spring for the
first time, probably off the south-west coast of Iceland, and then had started
their feeding migration, which look them Io east Iceland. 1just mentioned
otoliths. These are ear stones. and on theseear stones we can read the ace of
the fish. The otoliths, we cansay, are the passport of the fish. They show us
where the cod comes from and from the otoliths we can also read whether a
fish is immature, or how often il has soawned,
These tagging experiments, combjned with studies of otolith structure,
growth, blood composition and parasites, prove that the fishery for spawners STATEMENT OF DR. MEYER 325
FIGURE 8.SPAWNING MIGRATION OF COD; CROSS-HATCHED: AREA WHERE THE
IMMATURI: COD ARE OROWINC UP FIGURE 9. COD MIGRATION (GERMAN TAGGING EXPERIMENTS);
CIRUES: TAGGING LOCALITIES; ARROWS: LOCALITY OF RECAPTURE; FIGURES:
DAYS IN THE SEA STATEMENT OF DR. MEYER 327
FIGURE 10. RECAPTURES OF CO0 TAGCEO OFF GREENLAND;
CROSSES RECAPTURES FROM 14 MARCH TO 20 MAY; POINTS: RECAPTURES IN
.SUMMER AND FALL
off the south-west Coast of lceland deals with two different stocks. Scientists
from Denmark, Germany, Iceland and the United Kingdom working in the
"ICES Western Working Group" and in the "Joint ICES-ICNAF Working
Group on Atlantic Cod calculated that about 25 per cent. of thestock of
east Greenlandic spawners migrüte regularly to Iceland. The rich east Green-
landic year classes therefore may have a considerable positive effect on the
results of the fishery on the spawning grounds off Iceland, expecially in such
yeÿrs when the lcelandic spawning stock is weak. Such important east Green-
land year classeswere those from 1945, 1956, 1961, 1962and 1963. In parti-
cular, thelast increase in cod catches in lcelandic waters in the years 1969to
1971 was 10 a considerable extent the consequence of a strong immigration
of the Greenlandic year classes 1961, 1962and 1963. And these Greenlandic
year classes which strengthened the Icelandic spawning stock were marked
in figures 3 and 4 in green colour. The red colours in figures 3 and 4 re-
present the year classes of more or less Icelandic origin. The green coloured
year classes arethose year classes with a more or less big proportion of cod
comingfrom Greenland waters.
These biological facts show clearly thai a regulation for these two stocks
that mix at lceland can only be accomplished by an international body and
never by a single country. Because of the fact that these two cod stocks inhabit
the areas of both North Atlantic regulatory bodies-of NEAFC, the North-east Atlantic Fisheries Commission, with ils scientific body ICES, the Inter-
national Council for the Exploration of the Sea, and on the western side of
the Atlantic, ICNAF, the International Commission for the North-west
Atlantic Fisheries-the borderline between these two Commissions lies al
45"W, that is round about Cape Farewell-a reasonable and successful
regulation can only be achieved in this special case by a CO-operation of both
North Atlantic Commissions. And it should be added here that this close
CO-operation between ICES and ICNAF has been practised on the scientific
level since years. It should further be mentioned that the regulation with
national allocations of the catches is already in force for the cod in the
ICNAF sub-area 1, that is the waters OR south, southwest, and West
Greenland, the waters where those Greenland cod grow up, which are caught
later on as mature cod off Iceland.
Assessments for the two cod stocks at lceland made by the Western
Working Croup of ICES and the Joint ICESIICNAF Working Croup on
al1 cod stocks of the North Atlantic have proved that the mortality due to
fishing is rather high, especially in the intensive fishery for spawners, which is
nearly exclusively carried out by lcelandic fishermen. Owing to fishing mor-
tality and due to lossesby natural mortality, nowadays from 1,000 cod going
for the first lime for spawning to south-west Iceland, only 350 cod survive and
reach in the next year the spawning ground for their second spawning. This
does not. however. mean an overfishina. With the Dresent fishins effort the
cod stocks at lceland produce the maxjmum sustainable yield. TO keep the
two stocks in future in goodcondition andto ensure also thtt in the coming
years bath stocks are ex~loited to an o~timum. to ensure constantly the
hig1ie.i pojsihlc pri>iein ~uduction. iiquola rcgdlaiion iinc<cjsary. ~uch .I
regulaiic>n. houci,cr, cati c~nl) hc +chic$ed by a joint action of the ttru inlcr-
nation31 bod.e\ and noi bs ~iun.lntcriil ckiension of lishery Iimils.It is in ihc
interest of al1 nations, lieland included, that this international regulation
comes into force as soon as possible.
This was what 1had to Sayon cod.
Now the next important demersal fish-the saithe, or also called coal-fish,
as it is very black. The saithe is the second most important fish of the fishery
around lceland. Up to 1968 the saithe catches were rather stable with an
average of 59,000 tons for the lime from 1953 to 1968. This you see on the
next table, table 4. However. after 1968the catches al1at once doubled-you
will see they are al1 about 100,000 tons. The average for the las1four years.
1969 to 1972. was 118.000tons. iu., the double of the avera-e of the 16vears
beforc. This suddcn inurcajc was no! ihe conicqucnceofinconi~nggood)ciir
claçscs hiii only due io ihc P~ciili~i ihc fishing ind.isirhad sucueedcd in in-
troducin~ the dee~-frozen saithe fillet on the world market. and this increase
in sdithecïiches ue îind cvcry\vhere wherc siiiihe is caughi ioda)..
The biolog,c;il Iifc cycle of ihc saiihç in Iccland~c uûtcrj icnedrly ihc çame
as that of the cod. The saithe spawn on the same grounds in thesouth-west
and the juvenile saithe grow up off the northern coasts. Mature saithe are
very migratory, especially older saithe, which, having spawned several limes
al Iceland, suddenly leave lcelandic waters and migrate eastwards to the
Faroes waters. tlowever. this loss to the lcelandic stock is more-than com-
pensated by a considerable immigration of big mature saithe coming from
eastern areas, comins from Norway, from the Shetlands and Faroes waters.
Thus there is at lceland. direrine vet from vear to vear. an intensive mixine
of several saithe stocks. 11looks as-if for the-~01th-~tla"tic saithe the waters
around lceland are especially attractive. STATEMENT OF DR. MEYER 329
TABLE4. THE CATCH OF SAITHEIN ICELANDIC WATERS FROM 1953TO 1972
(in1000 t)
Year Total lceland UK FRG
Average
of 1969-72 51 % 14% 2s%
The next figures, figures I I and 12,show the results of several international
saithe tagging experiments, carried out off northern and north-western Nor-
way-this is shown in figure I1-and at Shetland and ai the Faroes-in
figure 12. It is remarkable, if we look at figure II. that there are two ways
from northern Norway to reach the popular lcelandic grounds. the route via
the northern North Sea, Shetland and Faroes or the route via Bear Island,
Spitzbergen, Jan Mayen, Io Iceland.
The ICES Coalfish Working Group stated: these saithe iinmigrations and
emigrations "can significantly alter theabundance of fish in the vririous
fishing areas". A regulation of such a very migratory species as the saithe,
therefore, can never be achieved by a regulation of a single stock. For a
regulation, al1 North-East Atlantistocks must be treated as a single stock,
and no country can claim a saithe only because it is just swimiiiing over ifs
shelfarea. This holds especially true just for saithe in lcelandic waters hecause
of the substantial immigration from foreignreas. A successful regulation of
saithe and a justifieallocation of the catches to the interested countries,
therefore, can only be accomplished by an internationalbody, in this case
only by NEAFC, not by a single country. Only this can be the logical con-
clusicn from the special biologicalhehaviour of this so very migratory
species.
Now 1 come to the redfish, a very interesting fish. There are three redfish
species,but only two, Scbasresniarinssand Sebastesmenrcllo,are of commer- FIGURE 11. RECAPTURES OF COALFlSH TAGGED IN NORTHERN NORWAY
Circlci : irdniSor\vcgi3n r.rli<rimcnir in3rea mi<rkî<lA
Squîrcs :from Sorueg13n cxwrimcni* in3ri.a in~rlcd H
Trtanelcr [rom Cnglish crwrinicni\ in are3 iiiarhed 13
Recaptures %,ilhin tagging area no1 shown. Large symbols 100 recaptures, medium
sized symbols 10 recaptures.
FIGURE 12. RECAPTURES OF COALFISH TAGGED AT THE FAROES, ON FAROE BANK
AND AT SHETLAND
Circles : from English experimenis on the Faroe Bank
Squares :from Faroese experimenis ai the Faroes
Triangles :from English experimenls al the Faroes
Crosses :from English experimenis at Shetland
Recaptures within tagging area no1 shown. (Large symbols 10 recaptures.) STATEMENT OF DR. MEYER 331
FtGURE 13. THE DISTRIBUTION OF REDFISH, SEBASTES MARINUS
cial importance. In the statistics, these two speciesare not separated, and for
ismplification and better understanding 1am treating both speciesasredfish.
The redfish-and this you $1 see in figure 13. the next figure-is an
oceanic species. living al rather breat depths. Figure 13 gives an impression
of the wide oceanic distribution of the redfish in the northern Atlantic, in the
Irminger Sea and in the Norwegian Sea. Only where this big redfish stock
touches the slopes of the continental shelf in 200 to 800 metres can they be
fished by bottom trawl. Such redfish grounds are found in the North Atlantic
everywhere where water of the Gulf Stream or of the currents originating
from the Gulf Stream touches the continental slopes with temperatures of 3
to 6°C. During the last 25 years al1existing and possible redfish places along
the slopes of the North Atlantic shelf areas have been found. In ils very
beginning such a newly detected redfish ground gives enormously high
catches. However. in a verv shorr tirne most redfish are removed from that
place, and the daily catch rate decreasesquickly and stabilizes very soonal a
rather low but constant level, due to the very slow resettlement of redfish at
the slopes coming from the oceanic stock.
On the next page, table 5 shows the redfish catches of the last 20 years.
Only German and lcelandic captains master the very difticult redfish fishery
on the steep and rough slopes of the continental shelves. Germany took 66
Der cent. of the total catch from 1953 to 1972. That in 1953 and 1954 the
b-erman catches enceededthe 100,000ton mark was due 10the detection of
such a new redfish place oiïsouth-west lceland in very deep water. The small
fluctuations in the catchessincethat time have more or lesseconomic reasons.
Although there are considerable fluctuations in the strength of the red- TABLE5. THE CATCH OF REDFISH IN ICELANOlCWATERS FROM 1953 TO 1972
(in 1000 t)
Year Total lceland UK FRG
Average
of 1969-72 32 % 4 % 60%
fish year classes, they have almost no effect on the total annual output, as
could beshownfor the cod fishery. Thiss due to the very very slow growth of
the redfish. Redfish of commercial size-anthere are fish of 35 to 55 cm.-
are atleast 15 to 30 years old. At this age they grow only I cni. per year, no
more. A cod of this size needsonly three to four years to grow to this size.
The redfish. and thiss interesting,'is a very slow-growing fish.
That the redfish is an oceanic fish and that the redfish causht off lceland is
no1 a fish of lcelandic origin. shows the distribution of thevery young redfish.
This is presented to you in figure 14.
Figure 14, taken from the report on the 1972 international O-group survey,
illustrates the wide distributof the 1972 year class in the lrminger Sea
three months after the redfiswere born. Redfish are born. for redfish are
viviparous.In autumn the males fertilize thefernales. The female redfish
keepsthe sperms in a special organ and fertilizes her own eggsin spring. More
than IM),000 larvae develop in the body of the mother and are extruded in
April-May in the Irminger Sea. The O-group redfish here in figure 14 is of
course far more widely distributedin the south, but the survey was only
carried out up to 61' north.
Fifteen Io thirty years later, sonie of these redfish born in 1972 in the
lrminger Seawill be caught in 1990or in the year 2000 along the slopes of the
Faroe Islands, on theIceland-Faroe Ridge, of Lceland, or at thecontinentalSTATEMENT OF DR.MEYER 333 slopcs of East and South-East Greenland and even off West Greenland. All
these redfish belong to the same oceanic stock. No redfish, therefore, can be
regarded as a national fish. All were born on the high seas over depths of
more than 1,000 metres Faraway from the shelf areas.
It jhould also be mentionedthat at the moment there is no demand for any
regulation of the redfish, because there is no fishery on the redfish in the
Irmiiiger Sea. Al1 redfish, even of smallest commercial size, are mature and
have already spawned several times. Thus there is today no need for-any
protection of redfish.
And now the fourth demersal fish species,the haddock, with table 6.
'
TABLE6. THE CATCH OF HADDOCK IN ICELANDIC WATERS FROM 1953 TO 1972
(in IOODt)
Year Total lceland U K FRG
In contras1 10 cod, saithe and redfish, al1 haddock caught off lceland ori-
ginate from lcelandic waters. Among the four main demersal species, the
haddock is thus the only fish which could be designated as a national fish.
The lire cycle of the haddock is similar Io that of lcelandic cod and Ice-
landic saithe. The haddock spawn in the south and they grow up and feed
in the Westand the north. They prefer the warmer water. The haddock stock
is. however, considerably smaller than the cod stock and even smaller than
the stock of saithe. Table 6 shows the haddock catches during the last 20
years. For some years, the haddock stock, which is very heavily fished, has
been in a poor state. The total catch in 1972 was only one-third of themaxi- FISHERIES JURlSDlCTlON
FIGURE 15.THE MIGRATION PATTERN OF THE ATLANTO-SCANDIAN HERRINO STATEMENT OF DR. MEYER
Andsuch a regulation-and this must be stressedagain-can only beachieved
on an international level and by no means by a unilateral extension of fishery
limits.
Looking now at the many fishmeal factories built on the Coast of north-
east lceland for herring reduction-they were built in the sixties there-and
lookina further at the areat oroblems which were caused the bia new-built
herring fleet of purse-séiners'and their crews after the herring catastrophe,
1am sure that the lcelandic Government would be very, very happy today if
at the beainning of the sixties an international reaulation had beenintroduced
asrecomhen~Fd by iisher) biologisiç snd oiher people who feli rc~ponsibiliiy
There 1, no heiter cr~niplc of ihe neçd Tor intcrnaii<)n.tl CO-operdlion iiithe
fisheries than that demonstrated by this serious and regrettable break-down
of the fishery of the ~tlanto-~candian herring.
What 1just said about the Atlanta-Scandian herring. and what 1 pointed
out earlier when I dealt with the mairi demersal species of cod, saithe and
redfish, this is what 1 can, and this is what 1 must Sayas a fishery biologist.
Andl am sure this is also the opinion of the international fishery research inthe dispute on the fisheries in lcelandic waters. To gain more insight inIo the
very cornplicated life in thesea,-Io assure that in future the fish stocks with
their erowina-.mportance for the nutrition of mankind are kept al such a
level;bat they are always in the state to give the highest yields, cari be achieved
only by international research, by international CO-operation and by inter-
national regulation of the fish stocks, combined with international inspection
of the fishing fleets.
The PRESIDENT: 1 think one of thejudges would like to put a question
to YOU.
Judge JIMENEZ DE ARÉCHAGA: 1refer Io the statistics in table2.3,
4 and 6. 1sil possible to have a distinction made in the statistical figures con-
cerning lceland's catch of cod and of other dcmersal species?The distinction
1 have in mind is between what is caught by lcelandic vesselswiihin ils 12-
mile zone and what is caught by lcelandic vesselsin the area between 12and
50 miles. If that is possible, 1 would appreciate a written indication of the
separate figures and percentages.
Dr.MEYER: First 1can tell you the catch of cod by Iceland is shown in
figure 2. The cod caught by lceland is the line with one dot in it. The total
catch of cod is shown in figure 4. 1also have with me the figures split up, but
1 forgot Io bring them in here. 1 did no1 bccause 1 had presented the figures
here. 1have itwith me, and if you wish 1can present the cod figures.
The other ouestion. as far as 1 understood vou. was. is there a oossibilitv
of distinguishing between fish within the 12-miie limitand outside the 12-mi&
limit. This is not possible. There is no statistic available that says how much
fish is caught within the 12-mile limit and how much is caught outside the
12-mile limit. But al1 the cod catch made by the United Kingdom-that is
on the average of the last 30 years about 130,000tons-is caught outside the
12-mile limit. The lcelandic catch, 1guess,90 Io 95 percent. is caught within
the 12-mile limit. Most of the catch the lcelanders take, as 1told you, during
the very short spawning time, and the spawning places are round about
within the 12-mile limit. Most of those cod caught by Germany during that
time are those coming from East Greenland on their way to the spawning
places, and we can see this by comparing the age determination by oiir Ice-
landic collcdgues with Our own. WC have many more Greenlanders in Our
catches than the lcelanders have. We gel more of the Greenlanders, for we
catch themjust on their way to the spawning places. It isvery inlerestingthat
you can see from the otolith structure whether a fish has grown up in Ice-
landic waters or whether it has come from East Greenland waters. ARGUMENT OF MR. JAENICKE
ARGUMENT OF MR. JAENICKE (cnnt.)
AGENT FOR THE GOVERNMEN T F THE FEDERALREPUBLIC OF GERMANY
Mr.JAENICKE: On the basisof what you havejust heard in thestatement
given by Dr. Meyer, and on the basis of the facts which have already been
brought forward in the Memorial of the Federal Republic of Germany, the
.
following points deserve special attention for the legal evaluation of the
situation of the fisheries in the waters around Iceland.
First, German fishing in the waters of the high seas around lceland is of
very long standing and accounts for an important part of the fresh fish supply
for human consumption in the Federal Republic. No other fishing grounds
are available from which such quantities of fresh fish supply could be taken.
Second, the fishing effort of the vesselsof the Federal Republic of Germany
in the waters around lceland is predominantly directed to the catch of redfish
and saithe, while lcelandic fishing so far concentrated first on herring, and
now on cod and capelin, and only in minor proportions lately also on redfish
and saithe. Redfish and saithe although categorized as demersal species,do
no1 inhabit the waters around lceland only, and cannot therefore be con-
sidered as truly coastal species. Both fish stocks are highly migratory. They
mierate. asFaras is known. and aswe have iust heard. within the whole reeion
ofïhe ,iilmtii:and ~rciic'Ocelin hetr~een~lccland. Norwliy and Grcenlind.
The ycïrly cïtchcs of thesc stock5 by (icrmsn fishing tessels have reiiiained
on a relatively steady level within the last years. There is no indication that
redfish and saithe are in danger of being over-exploited. The Governrnent of
lceland also has not been able to produce any facts which indicate that the
redfish and saithe stocks are over-fished. lceland has no1 even asserted such
over-fishing. However, catch limitations with respect IO these species might
beenvisagedjf it were to become necessaryIo prevent the diversion of fishing
effort from other fully exploited regions or fish stocks to the redfish and
saithe.
Third, as we have jus1 heard on the basis of the demonstration by Dr.
Meyer, the regulation of the fish stocks around lceland is and should be an
international matter. and coul~ ~ -ac~~-olished onlv on an international
scale. The ort th-~a Aiantic Fisheries ~&nmissioni; theappropriate body
Io deal with the conservation ~roblems and, if necessary, to proceed to the
allocation of national quotas in these waters among the tales which have
been habitually fishing there. Hadit no1 been for Iceland's refusal Io ratify
the already resolved extension of the powers of the Commission, il would
now have been possible for the Commission to impose, by rnajority vote,
catch or effort limitations, if considered necessary on the basisofscientific
evidence. In the meantime, such conservation measures can, however, be
introduced bv aareement between the eovernments members of the Com-
mission. No évidencehas as yet been forthcoming which would indicate that
the fish stocks for which German fishing vesselsmainly fish, are already fully
or even over-exoloited. If there has been any over-fishing in the pas1of cer-
tain species, m&ly herring, and also haddock, German fishin-g activities
cannot be blamed for that.
Thus the Dresent situation of the fish stocks for which German fishing
vessels are fishing, offers not the slightest ground to take measures whichwould restrain the fishing activities of German vessels in the waters around
lceland or exclude them from these waters. The Government ofthe Federal
Republic understands Iceland's concern about a possible future deterioration
of the situation if the fishing eRort in the waters around lceland would be
increased by lceland itself or by other States, or if fishing elfort would be
diverted from other over-exploited regions to the waters around Iceland. But
this concern is equally no justification 10restrain now the fishing activities of
German vessels in these waters as long as their catch does not exceed the
previous levels.
The Government of the Federal Republic of Germany has always been
ready Io pay regard to Iceland's concern for the preservation of the fish
stocks in the waters around lceland and to discuss and agree on al1 suitable
conservation measures which both Governments will regard as being neces-
sary for protecting the fish stocks against over-exploitation. Such measures
might include agreed catch and eflort limitations and the establishment of
fish protection zones, if such measureswill be applied in a non-discriminatory
manner. It is the firm position of the Federal Republic that in areas of the
high seasoutside the 12-mile liniit where not only the coastal State but also
other States have habitually been fishing for years for the food supply of their
peoples. measures of conservation cannot validly be taken by the coastal
State alone but only by agreement between the States concerned, either
multilaterally under the auspices of the North-East Atlantic Fisheries Com-
mission or, if that were not feasible, directly between the States concerned
on an equitable and non-discriminatory basis.
Itis no argument for not following this procedure that concerted action
between the States concerned would be too slow in caseswhere conservation
measures would be urgently needed. The coastal States' special inlerest in the
preservation of the living resources of the sea before ils Coastand the special
competence of the coas<al State to introduce unilaterally conservation mea-
sures in cases where there is sufficient evidence for the urgency of such
measures but no agreement on the nieasures to be taken could be reached. has
already been recognized by the international coinmunity. I refer again to the
Convention on Fishing and Conservation of the Living Resources of the High
Seas.which was adopted by the Geneva Conference on the Law of the Seaon
26 Aoril 1958 and which sets forth the conditions under which such an
exceptional competence of the coastal State over the fisheries on the high seas
could be recognized. These conditions are:
First, that there is a need for urgent application of conservation measures
in the light of the existing knowledge of the fishery.
Second, that the measures adopted are based on appropriate scientific
findings.
Third, that such measures do not discriminate in form or in fact against
foreign fishermen.
Fourth, a very important point. that the measures, if adopted, must be
submitted. at the instance of another State affected -herebv. -, an imoartial
body for review.
Although neither the Federal Republic of Germany nor lceland have
ratified this Convention, the rules contained in the Convention seem to
provide an equitable and effective procedure as to how the interests of the
coastal State and the other States fishing the same area could be acconi-
modated.
Thus, appropriate and effective procedures have been available to lceland
to satisfy ils interest in the preservation of the fish stocks in the waters ARGUMENT OF MR. JAENlCKE 341
around Iceland, and the Government of lceland cannot well argue that the
establishment of an exclusive fisherv zone of 50 miles wherein al1 foreien
lirhingii prohibitcd irthe only cIFÎcti\~cuay of yuarding the fihhinb:reiources
in thcic \raters ÿeainst fut.irc over-fijhing.If ihc GL>\criiiiient of Iseland hÿd
reallv intended Co establish onlv a fisherv conservation zone where non-
discpiminatory measures might & introduced if the danger of over-fishing of
a certain species should becomc apparent, it should have approached the
Government of the Federal Republic in order to reach an agreement on
such a zone and this approach would probably have had thechance of being
considered favourably by the Ciovernment of the Federal Republic and,
eventuallv. of being acceoted bv the Federal Re~ublic under aooro~riate .. .
sîfeguards. includinb: Ihc po\,,biiity 0ï.1 rccoursc ln ihc Couri or Io anoiher
in~partinl body in case unilaicral nieasurci wken hy Iccliind in such a fishcry
con>ervîtion zone shoiild bc conicsicd bs thc Fedcral Rcriublic. This oroce-
dure, if followed by Iceland, would havebeen in harmony-with the lettir and
spirit of the agreement contained in the Exchange of Notes between the two
Governments of 19 July 1961. However. the Government of lceland was
apparently not so much~interestcd in non~di~criminator~ conservation mea-
sures as in the immediate and total exclusion of al1foreign fishing vesselsfrom
the waters around Iceland.
There can be no doubt that the Regulations 1 issued by the lcelandic
Minister of Fisheries on 14 July 1972 were intended and are still intended 10
establish a truly exclusive fishery zone in the sensethat al1 foreign fishing is
ex~.uded from this zone. The Re~ul~tions orohibit al1 foreien fishine in the
~ 7 -
50-mile zone; they contain no provision or procedure which would envisage a
continuation of foreign fishina in this zone. In its aide-mémoire of 31 August
1971 bv which the Governmeit of lceland eave notice to the Government of
the ~ederal Republic of its intention to eitend the fisheries jurisdiction as
from I September 1972, the Government of lceland expressly referred to this
zone as a4'zone of exclusive fisheries iurisdiction". ~his aide-mémoire has
been reproduced as Annex D to the Application of the Federal Republic
instituting the ~roceedings in this case.The Government of lceland reiterated
this character&ation of~the 50-mile zone as a "zone of exclusive fisheries
jurisdiction" in its aide-mémoire of 24 February 1972. This aide-ménioire is
reproduced as Annex H to the Application of the Federal Republic insti-
lutina the oroceedines in this case
li iitrue'thaiundc;ihc IielanJic I3a on fisherics the tioi,crnmcnt oflceland
may conclude inicrnational aprccments uiih other States wiih respect id the
continiiaiion of fi)rcirn fishcries in ihe 50-niilc lonc, and ha\ inVJCIdonc so.
But it is wholly within the discretion of the Government whether and to what
extent it will sllow the continuation of foreign fishing in this zone. In the
negotiations which took place bciween the Governments of the Federal Re-
oublic of Germanv and lceland rince the nromuc~~lio~-of the Regulstions of
i4 July 1972thë~overnmeiÏoflceland has made it clear that thcy were only
~repared to agree to a restricted continuationof German fishing in the 50-mile
;one for a limite~~ohasine-out oeriod. The aereements concluded by Iceland
with Belgium, the ~aroe 1;land;. Norway andthe United Kingdom haveonly a
limited duration and are re~arded by the Government of lceland merely as
accommodation of foreian interests for a limited oeriod of time without any
guarantee that they wille continued after they have lapsed. 1 would like to
quote the statement of the lcelandic Representative in the United Nations
--
i 1,pp. 384-386Sea-bed Committee on 6 August 1971, which is rather illuminating as to the
intentions of the Government of Iceland:
"The essential thing is to recognize the basic principle that, to the
extent that the coastal State is willing and able to utilize its coastal
~ ~ ~ ~ resources. it should be allowed to do so. As far as lceland is
ionierncd. lilihough one half of the mahimum suitainliblc )iclJ hïJ
heçn taken by forcign naiion.ili. ihc lcelandic people arc q~iis ~apïblç ,if
full) uiilizing the mlximuni yiclds ihemrclvss. Thar 15uh) ihç I:el~ndic
Ciovcrnment announccd that bcfore Septçinhcr 1. 1972, the Icelandic
tishcr) Iimits uould bc c~tended ii,asto coicr the iraiers of ihc coniincn-
rai shelf area."
This speech has been reproduced in the second enclosure to Annex H to
the Application of the Federal Republic in this case. in a brochure entitled
FisheriesJurisdicrion in Iceland (1, pp. 60-64).
The Court adjournedfrorn 4.25p.m. IO 4.45p.m.
When 1finished some minutes ago 1had concluded that the Government of
Iceland intends to exclude immediately and totally foreign fishing from the
50-mile zone around Iceland. Now this conclusion leads us to the central
issue of the dispute hetween the Federal Republic and Iceland. What are the
interests of both sides which are in conAict here and how far can these
interests claim recognition under international law?
The interests of lceland to establish an exclusive fishery zone which com-
prises practically al1exploitable fishing ground in the waters of the high seas
around lceland has its basis in Iceland's economic policy. It seems that the
economic policy of the present lcelandic Government concentrates on the
enlargement of the fishing industry rather than on the development of the
other national resources within the country. The Minister for Fisheries is
reported to havestated at the Ministerial Meeting of the North-East Atlantic
Fisheries Commission in Moscow on 15 December 1971 that the fishing
effort by Iceland directed to the cod stocks and other demersal fish stocks
has been intensified and that lcelanders must secure for themselves a larger
oart of the catches.
There are reports that lceland intends to build up a new Reet of large wet-
fish Stern trawlers; the number on order has been reported as about 30. This
would more than treble the existing fleet of 1ceÏandic deep-sea wet-fish
trawlers. This enlargement of Iceland's fishing fleet will require, in order to
be economic, larger catches and, consequently, a heavier exploitation of the
fishing grounds around lceland and elsewhere.
The interest of the Federal Republic of Germany consists in maintaining
its fish supply from the fishing grounds around lceland on the same scale as
hitherto. The Federal Republic has built up a distant-water fishing fleet
mainly for securing the necessary supply of fish for home consumption be-
cause the fishing grounds before the German coasts do not yield enough to
satisfy the demand of its large population. Export of fish products for which
mainly importedherring is used, is of secondary importance.
Within the last decade the deep-sea fishing fleet of the Federal Republic,
which is dependent on distant fishing grounds, has taken more than 60 per
cent. of its fresh fish landinas and about one-third of al1its catches. fresh and
frozen, from the fishing grounds around Iceland. The Government of the
Federal Republic of Germany has repeatedly assured the lcelandic Govern- ARGUMENT OF MR. lAENlCKE 343
ment that the Federal Republic does not intend to increase its fishing efforts
inthese waters, or to enlarge its share, which represents at present-from the
figures of 1972-barely 10 per cent. of the total catch of al1 species in the
waters around Iceland, compared with Iceland's share of more than 60,
nearly 70, percent.
The interests of both Parties which 1 have just analysed, namely the in-
terest of lceland Io increase its catches from the fishing grounds around its
coast and the interest of the Federal Re~ublic to take the same amount of
fish as hitherto from these fishing ground;, have not been irreconcilahle in the
past as long as the ahundance of fish in this area allowed Iceland an ever-
increasing share in these fisheries. However. since under the asoects of Dre-
servation-of fish stocks the amount of alloiable catch is gradually reaching
its limit, at least with respect to certain species, the Government of Iceland is
faced with the situation that the fisheries around Iceland will reach now. or
ai !e3\1 in the ncdr f,ilure.a Icvcl uiiich uill no1 allow larger totîls of caich
uith rcspe.1 ti) mo\i ti\h sti)cks which arc e~ploiied in ihr udtrrs ûround
IcclanJ.
The Governmcnt of Iceland rr:ilizcs that IIcould thcn enlarge ils cüiches in
ihese uüiers i~nl) ai the ehpcnse of the shares of oihcr nationi, in pariicular
31 the cxnenrc of the UnitcJ Kincdoni and ihe Fedcral Kenuhlic of Gerniînv
which both now rely heavily onthese fishing grounds. ~hat is why lceland
attempts to reserve the fishery resources in these waters for the exclusive
exploitation by its own fisheries, and that is the real motive behind Iceland's
move to establish an exclusive fishery zone around its coast-which comprises
nearly al1important fishing grounds in these waters.
The Court will have Io consider whether there is any legal basis for such a
claim hy Iceland. The Government of the Federal Republic contends that
there is no such basis, neither in law nor in equity.
The Federal Republic of Germany does not deny the special dependence
of Iceland's economy on the exploitation of the fishery resources in the high
seas around its coast. The Federal Republic recognizes also that Iceland's
interests in preserving the biological and economic basis of its fisheries
industry is legitimate and that Iceland's share of about 60 or some more per
cent. of the total catches of al1species in the waters of the high seas around
Iceland should not be considered an unreasonable preferential position. The
Federal Republic pf Germany, however, maintains that no less consideration
should be given to the interest of the Federal Republic in preserving ils share
in the fisheries in the waters of the high seas around Iceland-fisheries which
have been built up hy a long and steady exercise of the legitimate right of
fishing on the high seas for the purpose of securing the necessary food supply
for its population.
While the existing dependence of Iceland on the fisheries before its coast is
thus recoe-ized. it does not seem to be eaua.lv l.-itimate for a coastal State
to intensif~ or enlarge the existing dependence of its economy on these
fisheries at the expense of other nations which are already also dependent on
the same fisheries. There is particularly no such legitimacy in a case where,
as in the case with Iceland, the coastal State has alternative possibilities to
develop its national economy on the basis of resources which are clearly
within ifs national domain. instead of claimine a larger share in theresources
which belong to the domain of al1nations and'ihe utiiiration of which Iceland
has, up till now, shared with other nations. lceland is not entitled in equity
to claim a larger share simply because it chooses to develop its fisheries in-
dustry and not the other sectors of itseconomy which, based on the country'sinland resources, would probably yield a higher, safer and more constant
rateof economic growth.
The soecial situation of a State like Iceland. which is heavily dependent on
fisherie; before its coasts, has already been noticed by the international
community.
In 1958, the Geneva Convention adopted a resolution on special situations
relatingto coastal fisheries wirh situations such as that of lceland specifically
in mind. In fact, it was at the instance of Iceland that this problem was de-
batedat the Conference and disposed of by this resolution which was adopted
bv 67 votes to none with 10 abstentions on 26 Aoril 1958.The relevant ooera-
tke part of this resolutionwhich satisfied largeli, although not fully, lceland's
claim for the recognition of preferential rights as originally proposed by
Iceland. reads as follows:
"The UniredNationsConferenceontheLaw of theSea,
Having considered the situation of countries or territories whose people
are overwhelminglv deoendent uoon coastal fisheries for their livelihood
-. .
or economic development, . ..
Recommends:
1. That where, for the purpose of conservation, it hecomes necessaryto
limit the total catch of a stock or stocks of fish in an area of the high
seasadjacent to the territorial seaof a coastal State, any other States
fishing in that area should collaborate with the coastalState to secure
just treatment of such situation, by establishing agreed measures
which shall recognize any preferential requirements of the coastal
State resulting from its dependence upon the fishery concerned while
having regard to the interests of the other States."
Secondly, and that is a very important point also:
"2. That appropriate conciliation and arbitral procedures shall be
established for the settlement of any disagreement." (Application,
Annex E, 1, p. 16.)
The concept which underlies this recommendation for dealing with a
situation as in the case of Iceland, commanded, as the recorded vote has
shown. the suooort of the overwhelmine mainritv of---e .tates which took
part in the Geneva Conference: this concept can, therefore, be considered as
reflecting the conviction of the international community that this procedure
is the most equitable way to accommodate the conflicting interests.
. The main features of this concept are:
First, that if catch limitations become necessary, preferential treatment,
but no exclusive rights, is recognized, on the basis of the existing, not the
future~d~ ~ndence o~ ~~ ~ ~c~--.~~
Second, the coastal State and the other States which have been fishing in
the samefishing grounds should settle the oroblem of what limitations should
be imposed on ihe fisheries and how the available resources should be
allocated between them, by agreement.
Third, if no agreement is reached to the satisfaction of the coastal State,
the matter will h&e to be settled by conciliation or arbitration; no unilateral
action of the coastal State in determining the size of its preferential share is
pcrmirted.
The t'rderal Rcpuhlic of Gerni'iny i< of the opinion th,it this nill he the
righi uiiy to dcal equii~hly uiih I;cl;ind's spriial iiiii:siion.
If the principlcs ul the 1958rerolution uerc applied in the presenr ca\e, 11fishing rights of the Federal Republic of Germany which have beenexercised
by ils fishing vesselsfor more than 50 years.
It is upon al1 these considerations that the Government of the Federal
Republic of Germany requests the Court to adjudge and declare that the
unilateral establishment by lceland of an exclusive fishery zone ranging to
50 miles from the Coast. or from the baselines from which the territorial sea
is measured, has no basis in international law, and that, if catch or effort
limitations may become necessary, on adequate and objective scientific
findings, such limitations and the respective shares of both Parties in the
regulated resources mus1 be determincd by agreement between the Parties
concerned. either within the existing framework of the North-East Atlantic
Fisheries Organizatio?, or, if that were not feasible, directly between the
Parties concerned.
The third topic on which I would like to comment today is the method by
which lceland has so far pursued its claim for an extension of ils fisheries
iurisdiction. It is true that there are doctrinal theories which oint to the role
of unilaieral aciion of Staies in the dçvrlopiiieni of inicrnational Inu. I du noi
ihink itnccewïry IO dircuss these ihcurics here and IO e\aniine ihe condii~ons
which must be present before unilateral action could exceptionally be de-
fended if undertaken for the protection of generally recognized interests. The
legal situation in the present case certainly did nor cal1 for such unilateral
action.
In the Exchange of Notes of 19 July 1961, both Parties had agreed on the
procedure which the Government of lceland would have to follow in case it
would wish to pursue ils claimfor an extended fisheries zone. In ils Judgment
of 2 February 1973 the Court has recognized that this agreement has not
ceasedto operate with respect to these procedural provisions and that it still
aoverns the relations between the Parties in this resDect.In ~araara~h 5 of the
c~shnii~e <if Noies the Gcivernment of the ~epublic <if l!c~and riserbed 115
pmition to scek recognition for a iurlhcr c~ienrio~tof iii fiilirricr juriidiction
but accçptcd the c~bligdiion IO gibe ihe Guvtrnmcnt of the Federal Kcpublic
of Germanv six months' noticeof such an extension and. in casethe Federal
Republic iould contest such extension. to submit the matter, at the request
of either Party to the International Court of Justice. While itis true ihat the
Government of lceland was not oreclu.ed bv this aereement from iakinz the
initiative io aik for recognition of î wider ;on? or'firhcriçs jurisdiciio< the
compromibsory clause can only bc inicrprçicd in the eiTc:i ihai. if the Federal
Republ~cof Gcrmany \ruuld objcct 2nd nik for 3 dccision of the Court. the
Govcrnmcnt of Iceland 1s precludcd from taking nny unilateral action in
atiempting Io enlorce 11sjiiriïdi<tion bcyond the I?.niile limii against the
fishina vesselsof the ~ederal ReDublic. their crews and other Dersonsenaaaed . .
in fiihing i)peraiii)ns heyond thc' 12-mile liniit. The history of'the negoliaiions
uhich led io the tkihange of Noir.? uf 19 Jul) 1.361has hicn descr~bed in
riarligraDh5 Y Io 21 oi the hleniorial of the I-edcrdl Kepiihlii on ihe rliieiiidn
ofju;isdiction. The history of the negotiations revealsthat the compromissory
clause contained.in paragraph 5 of this Agreement was to protect the Federal
Republic of Germany against any future unilateral action of lceland in
extending its fishery jurisdiction beyond the 12-mile limit and thereby to
avoid conflicts of the kind which were settled by the Agreement of 19 July
1961.Therefore, the compromissory clause contained in this Agreement must
be understood Io the eiïect that the Government of lceland would not enforce
any extension of itsjurisdiction beyond the 12-mile limit aslong as the matter
is before the Court. ARGUMENT OF MR. lAENlCKE 347
But, irrespective of the procedural obligations contained in the Exchange
of Notes of 19July 1961,the unilateral action by lceland in proclaiming and
enforcing exclusive fishery rights beyond the 12-mile limit was unlawful in so
far as it encroached upon the fishing rights of the Federal Republic in these
waters of the high seas. Even if lceland could establish-what has not yet
been done-that conservation mcasures were urgently necessary with respect
to certain fish stocks in the waters around Iceland, and even if lceland could
claim preferential fishing rights under such a scheme of conservation mea-
sures, it is in any event unlawful to exercise enforcement jurisdictionagainst
the fishing vesselsof the Federal Republic of Germany on the high seasbefore
agreement has been reached between the Parties on the nature and scope of
such conservation measures and on the methods of their implernentation.
This is no case where unilateral action might possibly be defended on the
legal vacuum theory; this is rather a casewhere Iceland purports to take away
established fishing rights of the Federal Republic under the present legal.
réeime of the hieh seaswhich have been exercised bv German fishine vessels
rightfullyand Gdisputed fir a long time in these kiters of the hGh seas.
Rights of enforcement against Foreign shi~s on the high seascould be created
oniy on the basis of an agreement between the ~tates concerned, either by a
general convention or by a specific treaty to this effect. No such basis exists
for the unilateral enforcement measures which the Government of Iceland
has thought fit to take against the fishing vesselsof the Federal Repiiblic of
Germany.
Therefore, Iceland cannot escape responsibility for the actions of its
Government in the purported enforcement of its claim for an extended
fishery zone. Any encroachment upon the fishing rights of the Federal Re-
public in the waters of the high seas beyond the 12-mile limit, if found
unlawful by the Court, will entail the full res~onsibiiitv for the consequences
of such aciion and foi the damage inflicted-upon the fishing vessels of the
Federal Republic thereby.
The actions of the lcelandic coastal ~atrol boats. acting on the direct
authority of the Government of Iceland Ln the piirported eniorcement of its
claim to an extended exclusivefishery zone, have been described in paragraphs
I to 14 of Part V of the Memorial of the Federal Republic filed on I August
1973. These actions have continiied since the filing of the Memorial. 1 refer
in this respect to the Report 1 have submitted to the Court on behalf of the
Government of the Federal Republic on 6 March 1974. These acts are illegal
on several grounds:
First,these acts purport to exercise jurisdiction on the high seaswithout
authority under international law.
Second, these acts purport to prevent the fishing vessels of the Federal
Republic of Germany from exercising their right to fish in the waters of the
high seas.
Third. these acts are deliberatelv calculated to inflict dam-ee and material
lois on ihc n.ititindls ol~nothcr Siliic. \iithodny j~~ii1i;~tlon in Idw.
Fourth, ihccr arts .ire in open ~otillict iiiithe principle embodted in the
Uri.leA Nliions Charter rh;,i disDLte.; bei\\ecn Sioies %hl1 be setrled iielce-
fully and without useof force.
Fifth, these acts intentionally disregard the Court's Order of 17 August
1972, confirmed by Order of 12 July 1973, according to which the Republic
of lceland should refrain from takine anv measures aeainst German fishine
- a
vesselsengaged in fishing activities in the waters arouid Iceland outside the
12-mile fishery limit during the pendency of the proceedings before the Court. ARGUMENT OF MR. JAENICKE 349
in the Federal Republic of Germany, may not be taken on the basis of a
unilateral extension by lceland of its fisheries jurisdiction but only on the
basis of an agreement between the Parties, concluded either hilaterallv or
within a rnul~lateral framework, with due regard to the special dependince
of Iceland on its fisheries and to the traditional fisheries of the Federal
Republic of Germany in the waters concerned.
4. That the acts of interference by Icelandic coastal patrol boats with fishing
vessels registered in the Federal Republic of Germany or with their
fishing operations by the threat or use of force are unlawful under inter-
national law. and that Iceland is under an obligation to make compen-
sation therefor to the Federal Republic of Germany.
These are the subrnissions as submitted to the Court.
Mr. President and Members of the Court, allow me to express my pro-
found gratitude for the patience and attention with which you have listened
to my arguments. FISHERlESJURISDICTION
QUESTIONS BY JUDCES JIMENEZ DE ARÉCHAGA AND
SIR HUMPHREY WALDOCK
The PRESIDENT: 1 shall now ask my colleagiies if there are some ques-
tions they would like himto answer on the issuesinvolved.
Judge GROS: Monsieur le Président,j'ai une question à poser à Monsieur
l'axent: Ouelles conséauencesle Gouvernement de la Réoublique fédérale
déduit-il 'de l'accord éntre la Comniitnauté économiqtk eurbpéenne et
I'lslande du 22juillet 1972,y compris le protocole no 6, en ce qui concerne la
position de I'lslande et celle des Etats membres de la Communauté écono-
mique europbenne?
The PRESIDENT: Areyou ready to answer immediately?
Mr. JAENICKE: No, 1would rather like to have the questions answered
later.
Judge JIMENEZ DE ARECHAGA: 1would like Io ask the Agent of the
Federal Republic of Germany this question. With respect Io the concept of
preferential fishing rights of States in a special situation, you have examined
the subject from the view~oint of the resolution ado~ted al the 1958 Con-
ference-on the Law of the &a. 1would appreciate iif youwouldexamine the
applicability to the present case of a concept of preferential rights. together
with the procedure for imolenientinp. them. asthey were defined in the amend-
ment by Brazil, Cuba and uriigua; which was incorporated by a separate
vote in the final proposal which nearly secured a two-thirds majority al the
1960 Conference and which reveals the generül consensus on the permissible
extent of a coastal State's fisheriesjurisdiction.
Mr. JAENLCKE: Mr. President, 1 would like also to have the answer
deferred.
Sir Huniphrey WALDOCK: 1noted the presencein Court OF the Agent of
the Federal Republic during the public sitting held on 25 March in the case
brought by the United Kingdoni against Iceland. At the end of that sitting,
1 addressed five questions to counsel For the United Kingdom, and the texts
OF the questions are set out at 1, pages 477 and 478. To the extent that
the Agent of the Federal Republic mayconsider that the views of the Federal
Republic concerning those questions have no1 already been sumciently pre-
sented Io the Court, 1 would be glad if he would kindly regard the questions
as addressedalso 10the Federal Republic.
The PRESIDENT: There are no other Members of the Court who wish
to put questions to the Agent for the Federal Repiiblic. We shall request him
to reRect on the answers,and if he could be ready to reply to the court on
Monday, the Court will have a sitting for this purpose.
Mr. JAENLCKE: In consideration of the fact that Our English colleagues
have had a much longer time, and weekdays, for preparing the answers,
although we have no1 so many questions as they had, which 1 appreciate. 1
would ask if itwould be possible and convenient for the Court to have the
sitting on Tuesday morning, becausc my colleagucs could no1 corne on
Monday. QUESTIONS BY MEMBERS OF THE COURT 351
The PRESIDENT: Weshallexpect your replieson Tuesdaymorning. Now,
with this proviso, and with thesual proviso that you will remain at the dis-
posai of the Court for any further information and explication the Court
would require, 1will now declare the sitting closed.
TlieCoirrirose ar5.25u.m. SIXTH PUBLIC SITTING (2 IV 74, 10 am.)
Present: [See Sitting of 28 III 74.1
STATEMENT BY MR. JAENICKE (cont.)
AGENT FOR THE GOVERNMENT OF THE FEDERAL
REPUBLIC OF GERMANY
The PRESIDENT: The Court meets this morning in the case instituted by
the Federal Republic of Germany against the Republic of Iceland in order
to eive the ~ee~ntof the Federal~e~ublic of ~ermanv an oo~or..nitv to
repïy to quescons put to him by ~embers of the court..
Mr. JAENICKE: MT.President. Members of the Court. on 28 March a
number of questions were asked ofthe Federal Republic of~ermany in this
case. These questions have been carefully considered and 1am grateful to the
Court for having granted us the necessary time to prepare our answers.
1shall deal with the questions that were put to the Federal Republic in the
same order as they were asked by the Members of the Court.
1 begin, therefore, with the question posed by Judge Gros. This question
was as follows:
"Quelles conséquences le Gouvernemént de la République fédérale
d'Allemagne déduit-il de l'accord entre la Communauté économique
européenne et I'lslande du 22 juillet1972,y compris le protocole no 6,
en ce qui concerne la position de I'lslande et celle des Etats membres
de la Communauté économique européenne?"
My answer is the following: the Agreement of 22 July 1972 was concluded
between the European Economic Community, as such, and the Republic of
Iceland. It was intended, in the words offs preamble, "to consolidateand to
extend .. .the economic relations existing between the Community and
Iceland". That is toSay, the Agreement which entered into force on 1 April
1973, concernseconomic relations generally.
The 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. That Article concerns tarifi and
custo~s facilities for the importation of Icelandic fish and lcelandic fish
products into the Community. Paragraphs 1 and 2 of Article 2 read as
follows:
First paragraph of this Article:
"The Community reserves the right not to apply the provisions of this
Protocol if a solution satisfactory to the member States of the Com-
munity and to lceland has not been found for the economic problems
arising from the measures adopted by Iceland concerning fishing rights.
The Community shall inform lceland of its decision on this matter as
soon as circumstances permit, and notlater than 1 April 1973." STATEMENT BY MR. JAENICKE 353
Second paragraph of this Article:
"If it appearsthat a satisfactory solution cannot be found until after
this date, the Community may postpone the decision on the application
of this Protocol providing it informs Iceland accordingly." .
At the present time, the provisions of Article 1 of the Protocol are not
being applied because the Community has postponed its decision in accor-
dance with Article 2. Therefore, no specific conclusion can be drawn from the
Agreement of 22 July 1972between the European Economic Community and
lceland and the Protocol No. 6 thereto, neither as to what the European
Economic Community would regard as a satisfactory solution for the prob-
lems arising.from the measures adopted by lceland concerning fishing rights,
nor as to what the position of the other member States of the Community
would be with respect to this question or any issue in dispute before the
Court.
That is the answer to the question of JudgeGros.
The PRESIDENT: 1 shall ask Judge Gros whether he wants to pursue
some of the issues raised in this question.
Judge GROS: Monsieur le Président, je remercie M. l'agent du Gouverne-
ment de la République fédérale d'Allemagne d'avoir eu l'obligeance de
m'indiquer la position de songouvernementsur I'accordentre laCommunauté
économique européenne et l'Islande.
Mr. JAENICKE: 1shall now turn to the question asked by Judge Jiménez
de Aréchaga. The question was as follows:
"1 would like to ask the Agent of the Federal Republic of Germany
this question. With respect to the concept of preferential fishing rights
of States in a special situation, you have examined the subject from the
viewpoint of the resolution adopted at the 1958 Conference on the Law
of the Sea. 1 would appreciate if if you would examine the applicübility
to the oresent case of a conceot of oreferential riehts. toeelher wiih the
proced;re for implementing them, ai they were defined in the amendment
by Brazil, Cuba and Uruguay which was incorporated by a separate vote
in the final ~ro~osal which ncarlv secured a two-thirds maiority at the
1960 ~onfeience and which rev'als the general consensus-on ihe per-
missible extent of a coastal State's fisheriesjurisdiction."
That was the question. My answer is the following: the history of this
amendment. as well as the backeround of the various or.no.als which
C.iliiiin3iein the ji~ini C.tn.~Ji~n-VnilcJ Si.iics pr~ipoç~l.ro 1iii1enJc.l. ha\e
;ilrcdJv occn ;iptl?.'riic\rcniiiclv c\pldinïJ by ihc Ic.trticd :n~ns?I l'or the
Cio\crn~riciit .>fthe Ln icd Kin~-lom in lus an,v.sr ni29 \!~r<li i,rihc sxiiic
question.
It would probably not assist the Court further if 1 were to repeat those
matters again. 1 rnight say that the explanations given so far by the learned
counsel for the Government of the United Kingdom were, in my opinion,
correct and exhaustive. The Court will allow me, and Judge Jiménez de
Aréchaga will allow me, to refer to them for the purpose of my answer. 1
would like, however, to add some remarks on the efïect which these events-
that is at the 1958and 1960Conferences-had on the developinent ofthe law
with respect to the preferential position of the coastal State in the matter of
fisheries. 354 FISHERIES IURISDICTION
At first 1 wish to make a general observation in regard to a// the ~roposals
that ha\c becii voied upon inboth conferencet hut hicc not becn incorp<\ratcd
in the con\,cntioiis. ,111su:h pr<ipiisals muit bc regirded as 3n cxprerrii)n of
the views of the particular governments which tabled or supported them, as
to what they would eventually accept as treaty law in view of the circum-
stancesprevailing at the Conference and in view of the other provisions which
would form Dart of the Convention. These oroposals might have contained
concessions which were made in view of the-ad"antages which might accrue
from the adoptionof other parts of the Convention.
What I want to demonstrate by that is that, at a conference, proposais,
counter-proposdls and amendmenls thereto cannot be isolated, neither from
the situation in which they were made norfrom the purpose which they were
meant to serve. They have, rather, Io be evaluated with proper regard 10 the
context in which they were made.
The secondgenersl observation 1would like to make concerns the relevance
of ~ro~osals such as were made at the 1958 and 1960 Conferences, for the
formation of new rules of law. Even if it could be ascertained how Fara con-
fcrence proposai, in the iight of the circumstances at that time, reRected a
conviction of those governments which sup~orted it as to what would be
equitable and what thélaw ought IO be, such a proposal will contribute to the
formation of a new rule of law only if the rule contained in the proposal is
subsequently practised in the behaviour of States and eventually accepted as
law by virtually al1the States whose interests are affected thereby.
What 1 want to emphasize is this: new rules of law emerge from the
concordant practice of States. not from individual expressionsof legal policy.
Afier these general observations I revert to the specific proposal made by
Brazil. Cuba and Uruguay with respect to the recognition of preferential
rights of the coastal State in the matter of fisheries. At the 1958 and 1960
Conferences the first initiatives wer~ ~a~e~ ~ ~ ~~ ~ ~ ~ ~he formation of Iwo
new concepts in the law of the sea which went beyond the rules of law as they
had been formulated by the International Lüw Commission.
First, the concept of a separate fisheries zone with limits distinct from those
of the territorial sea, a separate fisheries zone within which the coastal State
would have full jiirisdictioii over the fisheries.
Second. the conceot of the Dreferentiai nosition of the coastal State in the
. ~ ~
fisheries before ifs coast, should partitioning of these fisheries resources
among the fishing States become necessary. Tliis concept made its first
appearance in theresolution of the 1958 conference on ~pecial Situations
relating Io Coastal Fisheries. 1have already referred to this resolution in my
statemcnt on 25 March at page 344, sripra.
As ifbecame apparent at the 1958 Conference that an agreement on the
breadth of the territorial seacould not be attained, the concept of a separate
fishery zone of 12 miles was propagated. These attempts culminated at the
1960 Conference in the ioint United States-Canadian ~roposal of a 6-mile
. .
territorial se:i plissconligiioii\ O-iiiilc lishçr) 70nc. iumhinc<l rritl3phasing-
oi.1 time of 10 )cars ïur foreign lishcriej in thc ouicr 6-niilc (one This pro-
posa1was adopted in committee by a comfortable majority but it did not Yet
command sufficient votes for the requiredtwo-thirds majority in the plenary.
Itwas in this situation that the three-power amendment was brought forward
in order Io win the support of those States. as for exam~le. Ecuador and
Iceland, who were no1Sàtisfied with the 12-mile fishery limit; but asked for
the recognition of a general preferential position in the fisheries before their
coasts, even beyond the 12-mile limit. STATEMENT BY MR. JAENlCKE 355
T-~s nr ~ ~ . ~ the amendment submitted bv Brazil. Cuba and Urueuav. ..
was unequivocally spelled out by the delegate a? ~uba,'~r. Garcia Aniador,
in the tenth plenary meeting of the 1960Conference on 25 April 1960.There
he said :
"~he purriose of the amendments was to make it easier for those who
believed-that the proposal did not go far enough towards meeting the
needs and special iiiterests of al1coastal States in the conservation and
exploitation of the resources of the sea to accept that proposal, without-
disregarding the,legitimate interests of other States and the inter-
national cornmunity in general in areas of the high seas. In order to
harmonize those two sets of needs and interests. the amendments
c>tabIi>hcd 3 \)>teni $>fprcfercnt1;lI fi~hltlg rlgt~tsiclr the cd.i>Idl StstIc in
an arc.] of the high w:ir ;iJja:ent tu ihc arc.! Inahi:h ihat State cnj.))cd
exclusive fishing rights . .."
1quote this from the StrmmcrryRecordsof PletroryMeetingsandof Meetings
of the ComniiIfee of fite ?+'haleof the Second United Nations Conferenceon
the Law of the Sea, page 13.
This amendment, which improved and specified the concepts of preferential
rights contained in the 1958resolution, was adopted by a big rnajority of 58
votes against 19 with 10 abstentions, because it was thought that its incor-
poration might facilitate a positive vote on the Canada-United States pro-
posai and would thereby securea final determination of the limits of maritime
jurisdiction. Only those States which insisted on a 12-mile territorial sea
voted against the amendment.
In spite of sorne more votes, which were due to the incorporation of the
amendment, the Canada-United States proposal, as is well known, did not
get the necessary two-thirds majority. Thus the three-Power amendment
concerning -.eferential fishine .ieh.s of the coastal State failed to serve its
piirpmc. Ii 1,inicrcstinà to n.ii<: ilis \tstciiici>f the UiiitcJ St.tic< Jelegaic
in thc fi>~rtcenili plcnarv nieeiing uith rc\pc:t io his vote for the ihree.Po\rcr
amendment. 1quote from the same source, the Sitmmary Recordsof Plenary
Meerincs and of Meetings of the Second United Nations Conferetlceon rhe
Law of rhe Seri,from page 35:
"MI. Dean (United States of America) said that the United States
delegation had been glad to see the great support commanded by the
amendments submitted by Brazil, Cuba and Uruguay (A/CONF.l9/L.
12). He wished to make it clear, however, that his delegation had sup-
ported those arnendments only within the context of the joint proposal
(AICONF.19IL.II) and in an effort to reach agreement. The United
States delegation had not supported the terms of the amendments as an
independent proposition."
What then can be deduced from the favourable vote on the three-Power
amendment on 26 April 1960? It is certainly not permissihle to draw the
conclusion therefrom that al1the States which had voted for the amendment
would at that time have supported it as an independent proposal, or would,
moreover, have adopted it or its contents as a new rule of law as long as
agreement on the outer limits of national jurisdiction had not been reached.
The vote for the amendment was one of the concessionsmade by those States
which adhered at that time to the traditional limits of the territorial se? and
voted for the amendment in order to secure formal agreement on reasonablelimits of maritime jurisdiction. It is also not permissible lo regard the fa-
vourable vote on the three-Power amendment as an indication for a recog-
nition of its contents as an inseparahle part of the concept of an exclusive
fisheries zone of 12 miles, which later became a rule of law by suhsequent and
concordant State practice.
Nevertheless, il would be too formalistic a view if one were to refuse to
recoenize the intrinsic leeal value of the carefullv balanced concent of the
coasial State's preferentiaïrights as it was formulaied in the Brazil, cuba and
Uruguay amendment. The three-Power amendment, if it had become law,
wouid have imoroved the concent contained in the 1958resolution on Soecial
Situations relaiing to Coastal ~isheries Io a considerable extent:
First, it required to establish scientifically that it is necessary to limit the
total catch of a stock or stocks of fish before oreferential fishine ri~hts mav
be claimed by the coastal State-this made ii clear that, in the absence if
such circumstances, the coastal State couldnot claim preferential rights.
Second, the criteria for the determination of the degree of economic
dependence of the coastal State on the fisheries concerned, which could
provide the basis for a claim for preferential rights, were more hroadly, but
at the same lime more explicitly defined. The presence of these criteria had
also Io he established by scientific evidence.
Third, any unilateral enforcement of preferential fishing rights by the
coastal State was uneauivocallv excluded. A snecial orocedure was orovided
for, which the coastal'state would have Io foilow ifil wished to a;ail itself
of the right to claim preferential treatment in a catch limitation scheme. If the
coastal State wished to claim such preferential treatment if would have either
to corne to an agreement with the other fishing States or. if any other State
should not recognize the claim, the extent and the periods of lime of the
preferential rights of the coastal State would have to be determined hy the
soecial international commission nrovided for in Article 9 of the Geneva
Convention on Fishing and conGervation of the Living Resources of the
High Seasof 1958. This determination should be made hy having regard Io
thedegree of dependence of the coastal State on and the interesjs of other
States in the exploitation of the fish stocks concerned.
According to this procedural provision, preferential rights of the coastal
State would originate either from an agreement between the States concerned
or from the determination of an impartial international commission, but
never from unilateral action of the coastal State.
The fact that the three-Power amendment which contains these rules found
f,ivi~.ir.thlc x..ceptdnce ~n.1diJnet iiieei uiih ;in! criiic.>ii111respect 18)11%
eqiiiibleneii 2nd proceJurc. iicvidcnce ,)f tir yrcdi uliic .I.i t\cll-:<incc~vtd
mithod how the crucial prohlem of the conciliation of the interests of the
coastal States and those of the other fishing States in a situation where catch
limitations become necessary,can be solved equitably.
The concept of preferential rights of the coastal State and its implemen-
tation contained in the three-Power amendment presupposes, however, that
the States concerned recognire or suhmit to the cornpetence of an inter-
national commission provided for in the Geneva Fisheries Convention or
agree on the jurisdiction of another impartial body, including the Inter-
national Court of Justice, for establishing objectively the necessity of a catch
limitation and for determining the extent of the coastal State's preferential
rieht in such a catch limitation scheme.
This procedure is an indispensable element of the concept contained in the
three-Power amendment. That is why this concept, despite ils equitableness, STATEMENT BY MR. lAENlCKE 357
could not, without the existence of these procedural prerequisites, become a
generally applicable concept of law.
In the negotiations with Icelan<l the Government of the Federal Republic
of Germany has repeatedly declared its readiness to agree on reasonable
measures of conservation and to submit the matter, if lceland so wished, to
arbitration.
The Federal Republic had certainly been prepared to agree with lceland
on the terms and procedures contained in the Brazil. Cuba and Uruguay
amendment if lceland had wished to accept these terms also.
Number 3 of the submissions of the Federal Republic in this case is very
iuch in line with the concept contained in the Brazil, Cuba and Uruguay
amendment.
This is my answer to the question posed by Judge Jiménezde Aréchaga. QUESTION BY JUDGE JIMENEZ DE ARECHAGA
The PRESIDENT: Does Judge Jiménez de Aréchaga wish to continue or
enlarge on the question?
Judge JIMÉNEZ DE ARÉCHAGA: MI. President, 1 thank the Agent
- for the Federal Repuhlic of Germany very much for the answer he has given
and 1would like tq ask a supplementary question concerning the scope and
purpose of that preferential right which, of course, could be answered in
writing.
Now my question is, the Agent for the Federal Republic of Germany was
present in Court when the Attorney-General for the United Kingdom
stated, at1,page 457, "to enable lceland to maintain a reasonable rate of
expansion she should be permitted to take a larger share of the demersal
fisherythan in the past". Now, as 1read the references in the statement of the
Agent for the Federal Republic of Germany, particularly on pages 343, 344.
345 and 346, supra, 1find statements to the effect that it "does not seem ...
legitimate for a coastal State to intensify or enlarge the existing dependence
of its economv on these fisheries at the exDenseof other nations. . .(o. 343).
IQge 344 Io "the ehiriing. ni>tthe future dependenceon thc iirhcrics".
Pdgc 341, iigdin. ''the \dtiiF~stion oi pre.cii1 reqii~rciiierits nt'firh supply of
both Parties should take priority over claims foran enlarged share for future
needs". Again, on page 345, sriprn,reference is made to the dependence upon
coastal fisheries for their livelihood.
It seems to me that 1can detect some difference in this position as stated
in the other casehy the Attorney-General for the United Kingdom. My first
question would be: is my interpretation of the diferent position a correct
one? The second question, 1 notice that in the 1961 Exchange of Notes, the
Note from the Federal Reo.hl~c of Germanv instead of referrine. -.ke the
~nited Kingdom ~otei to the livelihood andéconomic development-those
were the words in the United Kingdom Exchange of Notes-refers to the
dependence for the economy of Iciland. My question will he: is some sig-
nificance, some legal significance, attributed to this different terminology?
Mr. JAENICKE: We will give the answer * in due time when we have
considered this question.
1Seep. 476, infra. STATEMEN TY MR. IAENlCKE
STATEMENT BY MR. JAENlCKE (cont.)
AGENT FOR THE GOVERNMENT OF THE FEOERAL REPUBLIC OF GERMANY
Mr. JAENICKE: Now Iturn to the questions put to the Federal Republic
by Judge Sir Humphrey Waldock.
The first question related to the specific contents of the consensus which
was reached at the 1960Conference on the fishery limits. The question was
as follows:
"Would counsel for the Applicant kindly assis1the Court by specifying
precisely the consensus that they maintain appeared in 1960 at the
Second United Nations Conference on the Law of the Sea, and mani-
fested in oraciice became a a-neral rule? Was il .o. the ioint United
States-Canadian proposal for a six-miles territorial sea and six-miles
exclusive fisheries, subject to aasing-out period; or (6) that proposa1
as amended bv Brazil. Cuba and Uruauav: or fc) the 12-mile exclusive
fisherylimit ailowed by the joint ~niïed tat tes-canad piaposal and
inherent in the minority proposal for a 12-mile territorial sea; or fd)
some other principle or understanding?"
My answer Io this question is the following: 1 am grateful to Judge Sir
Humphrey Waldock for having put this question because il gives me the
opportunity Io supplement my observations with respect to the emergenceof
a new general rule of law with respect 10 fisheries. In my statement of 28
April 1973, 1 have already touched upon some problems of the complex
process of the formation and change of customary international law. Such
rules of law emerge from State practice, accepted as law. State practice,
and the conviction that this practice is an implementation or application of
a rule of law must both be present.
While it is mostly possible. though not alwaysasy,Io ascertain the relevant
State practice, it is much more difficult Io prove the existence of the legal
conviction upon which the State practice is founded. Sometimes practice
comes first and its general acceptance as law follows later; sometimes, a
general conviction emerges first and wjll then materialize in subsequent
practice. D
Turning to the specific question which elements formed the rule that a
coastal State may now claim a fisheries jurisdictioup to 12 miles from its
coast or €rom the baselinesof its territoriasea, 1 should first point out that
the Government of the Federal Republic of Germany recognizesthe right of
coastal States Io extend their fisheriesjurisdiction up Io 12 miles, but not the
right Io entinguish therein the fishing righrs of those States which have habi-
tually fished there, without the agreement or acquiescenceby those States.
1should refer in this respect to paragraph 55 of Part IV of the Meniorial
of the Federal Republic oFGermany whereit wasstated:
"While itcan now be safely maintained that under international law
a State is entirled ro entend its fisheriesjurisdictup to 12 miles from
the coast, the question is slill unsolved whether such State may then
lawfully exclude al1foreign fishing vesselsfrom this zone or whether and
Io what extent fishing vesselsof nations which have habitiially fished in
this zone, must be accorded special treatment." STATEMENT BY MU. JAENICKE 361
28 March 1974, at page 344, snpra. I characterized the resolution adopted
by the 1958 Conference as follows: the concept contained therein could be
considered as reflecting at that lime the common conviction of the States
which participated in the conference, that this procedure, as recommended
by the resolution, would be the most equitable way 10 accommodate the
conflicting interests of the coastal State and of the other Statesfishing on the
same fishing grounds in case catch limitations would become necessary for
reasons of conservation. This resolution recognized that countries whose
people are overwhelniingly dependent upon coastal fisheries for their liveli-
hood or economic development rnay have preferential requirements. The
resolution recommended that if. for purposes of conservation, il becomes
necesstry 10 linlit the total catch of the stock or stocks of fish, the States
fishing for thesamestock should either come Io an agreciiient with the coastal
State about a catch limitation scheme. which should take account of the
preferential requiremcnts, if any, of the coastzl Stüte and of the interests of
other States or establish appropriate conciliation and arbitral procedures for
the settlernent of the rnatter
As far as this resolution recommends the accommodation of conflicting
interests by agreement, conciliation and arbitration, the resolution does, in
effect, refer to the general obligation of all States IO settle their diferences
by peîceful means in accordance with Article 33 of the Charter of the United
Nations.
It is onls with respect to the oreferential position of the coastal State
which is, under certain conditions; implicitly recognized by the terms of the
resolution, that this resolution covers new ground. Il rnay indeed be asked
whether the oreferenlia1 oosition of the coastal State so far as it had been
recognized b; the resoluiion has, in the nieantirne, obtained so much legal
recognition by the international conimunity that it is now.incumben1 on al1
States to consider favourabls .r.ferential reauirernents of the coastal State
.n connc<ti<>n uiili thc ~nircdu~t~~u,~~iiatch-l~~~i.t~~.,~~~~hc~~ic~~~n~l~~.~~~r~i~flg
to tnc dcgree of the dependeii;~ ol tlic~<~~~l;il idie un the li4icr.c, in q.ic>ttori.
1 agree with learned counsel of the United Kingdom in ils answer given
to the same au.s~ion out.Io the United Kinedoni - that the 1958 resolution
could iiot as ;ire~oiiiniend~tian be in iisrliilic .;oJrce oi prcicrenti.il righti
hut thai the lcgùl b.i,i\ i>f.iii abltgdii<in io rcc.igntlc ihc prefereiittal position
ofihc c,>a.;txIS1;itc ii~aybe found in ,\rti.'l2 of ille Iltgh Ses, Csnve8iiion of
1953.Aicording iith:ii 4rticlr. uhi~h is dcc1:iratory of geiicrxl iiitcrii3iioiial
Iau. the eteriise of the frecdom, tif ihe high ic3s. in this CJSC the chcrci>e of
fishing rights, has to be undertaken with-reasonable regard to the exercise
of the freedom of fishing by other States.
If catch limitations or other limirations of fishing activities become ne-
cessary by reason of conservation, the interests of the coastal State may
reasonably be regarded under certain circumstances as such as to require
special consideration in the process of the reconciliation of the different
interests of States which take part in the repulated fisheries. The reasonable-
.
regard tc51.houcver, proir;t, alsu the fi\hing righis of ihosc Sidicr\\hich are
no1 c<~4513S 1tdtci bui JeprnJ in soinr' uay or thc othrr on the tiihrries which
are due to be regulated.
Thus, il is a position of the Federal Republic of Germany that Article 2
of the High Seas Convention does require the consideration of the interests
of both the coastal State and the other States fishing for the same stock or
stocks of fish. To what extent the interests of each of theni will have to be
taken account of remains a matter to be decided on the basis of al1relevantfactors in the concrete case.Among those factors the degree of dependence of
the coastal State on the fisheries before its Coastis certainly an important but
not the only factor which requires consideration.
It seems to me that the practice of States, inside and outside the fishery
orgdnizations in the introduction and implementation of catch-limitation
schemes which have been inspired by considerations of equitable appor-
tionmeiit, has been an additional source for the eniergence of a legal rule
which reauires the consideration of the coastal State's oreferential oosition.
This praitice, particularly the practice of the internafiinal fishery iommis-
sions, is a valuable guide to the kind of interests thzt have been recognized as
factors which should determine the resoective share of each State in the
catch-limitation scheme. 1 shall refer to ihis practice of international fishery
commissions in connection with the fourth question put by Judge Sir
Humphrey Waldock.
If conservation measures require the limitation of fishing activities, this
entails necessarily the duty of the participating States to accept an allocation
of shares in the exploitation of such resources, to be determined by equitable
principles.
Although itinay then be assumed that under Article 2 of the High Seas
Convention a legal obligation exists to give the interests of the coastal State
special consideration if liniitationsof fishing activities are envisaged, the
degree of preference, if any, that will have to be accorded to the coastal State
in relation to the other fishing States, is a matter of applying equitable
orincior~~~
These equitable principlescannot be defined in the abstract. but must await
their ao~lication to the concrete case.either by agreement between the States
concerned or by decision of a tribunal or other impartial body.
That is the answer Io the second question posed by Judge Sir Humphrey
Waldock.
The PRESIDENT: Judge Sir Humphrey Waldock.
Judge Sir Humphrey WALDOCK: Mr. President, 1 think if would be
better if 1wait until the conclusion of the replies of the Federal Republic.
Mr. JAENICKE: 1 shall now turn to the third question, posed by Judge
Sir Humphrey Waldock. This question is as follows:
"Will counsel for the Applicant kindly give the Court come further
indication as to what, in their view, the concept of a coastal State's
preferential rights or preferential position entails in relation to (a) the
general right to freedoni of fishing mentioned in Article 2 of the Geneva
Convention on the High Seas and (b) the concept of historic or tradi-
tional fishing rights?"
My answer is the following: 1 think, in answering the previous question,
1havealready indicated the relationship between the general right to freedom
of fishinn. or to out it otherwise. the rinht of accessofeach tat tto the fisherv
resourceiof th; oceans and the prefeyential position of the coastal State. it
remains to define the place of the historic or traditional fishing rights in this
context.
1 had already slated that it is only within a catch-limitation scheme, or
any other scheme which puts restrictions on the fishing activities with respect
to a certain stock of fish, that preferential fishing rights of the coastal State
might have to be taken into consideration. Therefore the question as to the STATEMENT BY &IR.JAENICKE 363
relationship between such preferential rights and so-called historic or tra-
ditional fishing rights narrows down to the question as Io the place of the
latter in a catch-limitation or other equivalent scheme.
The obligation under Article 2 of the High SeasConvention Io pay reason-
able reeard IO the interests of other States orotects also. as 1 have alreadv
~ -
said, the interests of those non-coastal ~tates'which are habitually fishini foi
the same fish stock as the coastal State. Ihave said before that the degree of
preference, if any, to be accorded to the coastal State is a matter of applying
equitable principles, with due regard IO al1 the interests involved in a parti-
cular fishing situation. The same considerations must apply to those States
which have habituallv fished for the same fish stock or fish stocks.
Here again, the reasonable-regard test requires examination as Io urhat
extent the long-established, continuously exercised fishing interests of non-
coastal States in the samestock or stocks of fish deservespecial consideration
under equitable principles.
In the practice of States, notahly in the regulatory practice of the inter-
national fisheries commissions, the so-called pas1 or historic performance.
that is, the average catch of certain species in previous years within a certain
period of reference, has frequently been taken as a legitimate basis for the
determination of the relative shares which should be allotted to each State
under a catch-limitation scheme.
That shows how much the fact that a State has habitually fished for a
certain stock or stocks of fish in a certain areri is considered a vested interest
that must be respected under the reasonable-regard test within a catch-
limitation schemeor orher similar restrictive regulation.
Thus both the interests of the coastal State and the interests of al1 other
States which have habitually fished on the same fishing grounds have gra-
dually qualified for recognition in the recent regulatory practice in fish-
eries.
The determination of the relative proportions of catch to be accorded to the
coastal State, as *,el1as to each non-coastal Siate which has habitually fished
for a certain fish stock. depends on the relative weight that has to be attri-
buted to each of those-~~terests or.se~ ~in the concrete case under eaiiitable
principles. This determination, involving mainly the application of equitable
principles, can only be effected nroperly either by agreement between the
~tatesconcerned O; bv an imoartial bodv. be it an-internationalcommission
or an international tribunal; 'but it couldnot be effected properly by a uni-
lateral decision of one of the interested parties.
That is mv answer Io the third auestion. oosed bv Judee Sir HumDhreY . .
Waldock, and 1 now turn, with t'he pernh;sion of ~ud& Sir Humphrey
Waldock, Io the fourth question. This question is as follows:
"Leading counsel for the Applicant had referred to the recent multi-
lateral aareement concernine the Faroes as an illustration of an aooro-
- ..
priate application of the concept of the preferential rights or preferential
position of a coastal State in a special situation. Will counsel please
(a) Whether and Io what extent in that agreement the concept of historic
or traditional fishing rights ivas also applied;
(bJ more generally. to what extent the concepts of preferential rights,
or preferential position of a coastal State, and of historic or tra-
ditional rights. have received application or been discussedin 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 andthe
United Kingdom concerning Arctic Cod."
That is the question. My answer is the following.
The arrangement relating to fisheries in the waters surrounding the Faroe
Islarids was signed on 18 December 1973 and entered into force on 1January
1974. The main features of the catch-limitation scheme contained in this
agreement have already been explained by the learned counsel for the United
Kingdom in his answer to the same question on 29 March.
1 would, however, like to add the following. The arrangement takes cog-
nirance of both the preferential requirements of the coastal States and of
traditional fishing. Itdoes so in the following way:
Article 1 with Annex I allocates the lion's share of cod and haddock Io the
Faroes, a reduced share to the United Kingdoni and a small remainder to
others, covering the unavoidable by-catches. The figure for the Faroes exceeds
their actual catches in 1972, as well as their previous record, whereas the
catches of the United Kingdom and others were reduced, compared with
their previous catches. This marked coastal State preference is justified in
the view of the Federal Rep~iblic by the relatively heavy fishing pressure
on those two species, cod and haddock, and the special Faroese dependence
on the fisheries directed to these species.
In the context of the agreement, this coastal State preference is balanced by
Article 2, which pays special regard to the traditional fishing of other States
in the waters around the Faroe Islands. Article 2 allows contracting parties,
.
which direct their fisheries in the area around the Faroe Islands solely
towards demersal species other than cod and haddock, to take 10 to 25 per
cent. more than their biggest catch in one of the years from 1968 Io 1972.
Thus, this Article is based on the principle of traditional fishing.
Articles 3 and 4 again refiect some coastal State preference. These Articles
~rovide for seasonal closures of some small areas extendine from 8 to 18
nauii;dl niilcr hcyond the (iuicr Iiniitr oi lhc Flirocie c\clii,t\li\licrier loiic.
These arca. are ;loscd IOXII irJ!\. nbhinc fur;il<<inir:i;iini! pliriier with wnie
small exemptions for the Faroese. ~h; scherne privilegei-the local coastal
fisheries which use gear other than trawls.
The whole arrangement shows, in Our submission, how coastal States'
preferential requirements and traditional fisheries can be reconciled by
agreement in a fair and equitable rnanner.
The development of criteria for the allocation of national quotas in catch
limitation schemes and. in oarticular. the amear. .e of the coastal State
prcfercii;c in i.ich s;hrnieiil relsiit>nIO lr;iJiti,>nih\hinl: hai .ilre.iJy hcen
deririhcd in l'sri II, pjr.igr.iph 51. of thc Mzniori;~l ,iithe Frdersl Republic
tiled uri I Auriiri 1973. LcariicJ ;i~~nrcl i;ir the Ilniicd Kin>?.lolii Iilir aI*o
explained thisdevelopment in its answer given on 29 March a< 1, pages 500
to 504,supra.
1 would like to add the following observations. The first multilateral arran-
gement which introduced national quotas in the North Atlantic related to
the herring fishery in 1972 in the southern area of the North-West Atlantic.
It was. however, based only on the so:called "historie" performance of the
participating States, with reference to the catches in the preceding year, 1971.
No coastal State preference was.provided for. Even in the herring quota
regulations for 1974, which accorded the coastal States a small preference
only, this preference didnot reach the 10percent. provided for in the famous STATEMENT BY MR.lAENtCKE 365
40 : 40 : 10 : 10 formula io which the Memorial of the Federal Republic has
already referred in Part II, paragraph 51.
The 1973 meetings of the International Commission for the Fisheries of the
North-West Atlantic had to deal with a Canadian proposition that instead
of the 10 percent. preference, the coastal State should have the right to take
as much of the total allowable c;itch as it needs. with the remaindcr being
-
divided among the other countries. However, this claim was no1 recognized
by the International Conimission for the Fisheries of the North-West Atlantic.
Only in a few cases,where a stock of fish was not of great importance for the
far-distant fishing States, did the coastal State receive a bigger share than
under the 40 : 40 : 10 : 10 formula because il could specify thai its coastal
fishery was esoecially deoendent on that stock.
~imilar to Articles 3 -and 4 of the Faroese arrangement, the regulations
under the auspices of the North-East Atlantic Fisheries Commission contain
some orovisions for a coastal State vreference. aoart from quota regulations
This preference is expressed by exempting ceitain small- coastaï fisheries
from the observance of sonie restrictions imposed for conservation purposes.
Those exemotions are to be found in the recommendations of the Nortli-East
Atlantic ~isheries Commission, which have in the meantime been accepted
by member States and are implemented by them. They are reproduced in
Annex E to the Report of the Eleventh Meeting of the North-EastAtlantic
~~.~~ries Com~ ~ ~ ~ ~ ~ - -
In this respect 1 would like to refer to the following recommendations of
the North-East Atlantic Fisheries Commission. First, 1 refer to Keconimen-
dation (2) (A) which allows vesselsbased on and landing their catches in the
ports of the Irish Sea to use for the catch of whiting-that is a species of
fish-nets with meshes of 31least 60 mm., whereas for other vesselsthe mi-
nimum size is 75 nim. Second, Rccominendation (9),paragraph 3. excludes
the fishing. for herring "in coastal Faoese waters" froni restrictions contained
in the regulations for the Atlanto-Scandian herring.
1 submit that these exanioles of exemotions for the coastal fisheries from
regulatory restrictions are ais0 good examples of how special interests of the
coastal States could be efectively ;~ccommodated.
With respect to the agreement concluded between the United Kingdom,
the Soviet Union and Norway on Arcticcod, 1would, ifJudge Sir Humphrey
Waldock would allow me, refer to what the learned counsel for the United
Kingdom has said in this respect, because the Federal Republic is no1 a
party to this arrangement.
1 would like to conclude my aiiswer to the fourth question of Judge Sir
.
Humphrey Waldock with the following general observations. The principles
which govern the allotment of national quotas in a catch-limitation scheme
are still in the stage of development. No generally applicable rules have been
formed in this respect. Each arrangement mus1 be regarded rather as a com-
promise to accommodate the diKerent interests involved under the particular
circumsiances of each case.
Nevertheless, there are some specific interests, namely the interesis ofnon-
coastal States founded on historic oerformance and. al a later stage. Io some
e\icnt, ihc consial Sinics' prelcreniial requircriienti. th31 hare bcen nciorderl
resagnition in n~ostcurrent catch Iimit;itii>n rihciiics.
That 1sihc ansacr Io the rourih UJrst!On of Judre Sir Huiii~hrïs Wiildock.
1 turn now to the fifth and last-question pose; by ~udge sir-~umphrey
Waldock. This question reads: "Will counsel for the Applicant kindly indicate whether they draw
any distinction between (a) historic or traditional fishing rights as a
basis for the phasing out arrangements connected with the 12-mile
exclusive fisheries zone, and (6) those rights as a basis for determining
catch quotas outside that zone?"
That is the question. My answer is the following: 1 think 1can be rather
brief here: the concept of historic or traditional fishing rights which has been
applied in connection with the continuation of foreign fishing rights in the
12-mile fisheries zone, either permanently or for certain phase-out periods,
must be considered separate from the concept with regard to the historic or
.ast o.rformances OFStates in a catch-limitation scheme.
I he conccpi oi the c~iiitin~xtion ~ii idreign iiihjnc. righis in an e\tzndcd
7oiic oic~clii\i\e )iiri\di-iiorïincrgcd irancitticr 1eg:ilci>niexi than thdi <iftlie
historic or past performance in catch-limitation schemes.
Although both concepts are designed to protect the fishing rights of non-
coastal States in those areas where they have fished previously, their legal
basis is different.
The continuation of fishing rights of non-coastal States in an area of ex-
tended exclusive jurisdiction of the coastal State is a necessary legal conse-
quence of the principle that rights of other States cdnnot be distinguished
except by agreement with, or the acquiescenceof, those States.
That is why the United Statb and Canadian proposals at the 1958 and
1960 Conferences and the subsequent unilateral action by States which pur-
ported to establish a 12-mile fisheries jurisdiction, oiïered a more or less
limited continuation of foreign fishing rights in that zone in order to obtain
recognition of the extension from those States whose fisheries were primarily
affected thereby. This practice has been referred to in some detail in Part IV,
paragraphs 127to 135, of the Memorial of the Federal Republic of Germany
on the merits in this case.
Itshould be recalled here açain that this practice differed asto the terms of
the continuation of foreign fishing rights in an extended zone of national
jurisdiction. The States concerned partly agreed on a phase-out arrangement,
but there were also agreements which provided for the permanent continua-
tion of fishing rights although there were provisions prohibiting an increase
of the future fishing eiïorl. A notable example for both alternatives is the
European Fisheries Convention of 1964 which provided for a phase-out
arrangement in the 3 Io 6-mile zone and for permanent continuation of
habitual fishing in the outer 6 to 12-mile zone. Whether a State will be pre-
pared to agree on a phase-out arrangement or will insist on a continuation of
ils habitual fishing rights depends of course on the consequences of the loss
of the fishing grounds in question. Phasing-out agreements in connection
with the establishment of the 12-mile fisheries zone miçht have been regarded
as sufficient in those caseswhere only a part of the traditional fishing grounds
had been closed to foreign Hshing and a diversion of the fishing effort to
other fishing grounds could be accomplished without much dilTtculty.
If. however. an extension of the coastal State's iurisdiction Io 50 or 200
nitlesii ,iiughi. nhish a<~ulilpr.i;ii;:tllincliidc al11nipori:ini rishinggroiinJ~,
pha5c.0.11;tgrecniclili arc r>hii<~url)no ~c.cptihle solutaiin for itie pri,ic<tion
of the interest, of ihi>rc 5idie\ \ihi.t~ h3,e hahiiu~lls IislieJ in thoic lirhinr-
grounds.
That, Mr. President, is my answer to the last question posed by Judge Sir
Humphrey Waldock. 1thank you for the attention. QUESTION SK MEMBERS,OF THE COURT
QUESTIONS BY JUDGES SIR HUMPHREY WALDOCK
AND DILLARD
The PRESIDENT: Does Judge ald dock wish to have some further
clarification or are youatisfied with the reply given?
Judge Sir Humphrey WALDOCK: MI. President, 1 have one question. 1
should be grateful if the Agent of the Federal Republic would kindly indicate
to the Court the meaning which the Federal Republic attaches to the word
preferenti inlthe concept of the preferential rights, or preferential position
of the coastal State.Does this word connote some absolute or independent
element of priority in the allocation ofresources or does it involve some ele-
ment of bias in favour of the coastal State when the rights or equities of the
parties are otherwise more or less equal?
This question, Iike that of Judge Jiménez de Aréchaga, arises from the
position taken hy the Agent of the Federal Republic ofGermany on page 343,
supra, and his reply could 1suggest, MI. President, conveniently be given in
conjunction with his reply Io Judge Jiménezde Aréchaga.
Mr. JAENICKE: Mr. President, the Federal ~epublic of Germany will
answer this question 1. together with the question of Judge Jiménez de
Aréchaga, in writing, in due lime.
The PRESIDENT: 1 think there is another question to be put to you by
Judge Dillard.
Judge DILLARD: MI. President, my question is really in the form of a
limited request. My reference is to the second question which 1put tocounsel
for the United Kingdom and which will be found at 1, page 451. The
reauest is this-To the extent. if at all. that counsel feels the question has not
iilready been 3Jeqiiatcly cuvered by the counrcl for the United Kingdom.
ivould he be gond cnough 10 indiiïtcany qualification or elaboraiion which
he feels desirable?
That of course may be in writing2, Mr. President. . .
The PRESIDENT: 1think there are no other questions by Membersofthe
Court. 1think we shall request the Agent of the Federal Republic to reply to
those questionsput by Judge Dillard, Judge Jiménezde Aréchagaand Judge
Waldock in writing before theend of this week.
Mr. JAENICKE: Yes, 1think it will be possible to answer the questions.
The PRESIDENT: 1wish to thank the Agent of the Federal Republic for
the assistance he has given to the Court and he will realize of course that he
has to remain at the dis~osal - -the Court should it reauire some further
clarification or information.
The Corirrroseat 11.35o.m.
-~
1 Seep. 480,infra.
2 See p.481,infio. SEVENTH PUBLIC SITTING (25 VI1 74,)
Present: [See sitting of 28 11174, 3.30 p.m. Vice-President Ammoun and
Judges de Castro and Jiménezde Aréchaga absent.]
READING OF THE JUDGMENT
The PRESIDENT: The sitting is open.
The Court meets today for thereadingin open Court, pursuant to Article 58
of the Statute, of its Judgment on the merits in theFisheriesJlrrisdictiocase
brought by the Federal Republic of Germany against the Republic of Iceland.
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~irisdiction
cases. Shortly after the beginning of the Court's deliberations, the Vice-
President suffered an accident, and was obliged to spend some time 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 Members of the Court are unable to be present at today's
sitting; Judge de Castro is absent for reasons ofhealth, and Judge Jiménezde
Aréchaaaforfamilvreasons. Both of them. however. participated throughout
the court's deliberations, and took part in the final vote in the case.
1 shall now read the Judgment.
[The President reads paragraphs 15 to 77 of the Judgment 1.1
1shall now ask the Registrar toread theoperativeclauseof the Judgment in
French.
[The Registrar reads the operative clause in French2.1
1myself append a declaration to the ~udgment, 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 ta the
Judgment; Judges de Castro and Sir Humphrey Waldock append separate
opinions to the Judgment.Judges Gros, Petrénand Onyeama append dissenting
opinions to the Judgment.
(Signed) Manfred LACHS,
President.
(Signed) S. AQUARONE,
Registrar.
1 I.C.J. Reporrs1974pp. 180-205.
2 Ibid.pp. 205-206.
Plaidoiries sur le fond du différend - Procès-verbaux des séances publiques tenues au Palais de la Paix, La Haye, le 28 mars, le 2 avril et le 25 juillet 1974, sous la présidence de M. Lachs, président