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CR 9819(traduction)
CR 9819(translation)

Mardi 9 juin 1998
Tuesday9 June 1998 -. Le PRESIDENT :L'audienceest ouverte.

*.* 008 La Cour se réunitaujourd'hui,conformémentaux dispositionsdes articles 43 et suivantsde
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son Statut, pour entendre les Parties en leurs plaidoiries sur la question de sa compétence pour

connaître de I'affaire delampétenceen matièrede pêcheries(Espagnec. Canada).

Avant de rappeler lesprincipales étapesde la procédureen l'espèce,il échetde parachever

lacomposition de la Couraux finsde I'affaire.Aucune desPartiesn'ayantdejuge desa nationalité

sur le siège, chacune d'elles auséde la faculté,que lui confèrele paragraphe 3 de l'article31du

Statut,dedésignerunjuge ad hoc. L'Espagneadésigné M. SantiagoTomes Bernhrdezet leCanada

le trèshonorable Marc Lalonde. L'article0 du Statut de la Cour dispose que ((Toutmembre de *

laCour doit,avant d'entreren fonction,en séancepublique,prendrel'engagementsolenneld'exercer

ses attributionsen pleineimpartialitéet en touteconscience)).Depar leparagraphe l'artic3e1

du Statut, cette disposition est applicable aux jugeshoc. Le paragraphe 2 de l'article8 du

Règlement stipuleque lesjuges ad hoc font leur déclarationen audience publique dans I'affàire

laquelle ilsparticipent;et leparagraphe 3 du marticle précise que juges ad hoc((prononcent

une déclaration l'occasionde toute affaiàlaquelleils participent,même s'enont déjàfaitune

lors d'uneaffaireprécédente». Je diraidomaintenant quelquesmots de chacundesjuges ad hoc,

puis les inviterai, suivant l'ordre dans lequel ils prennent rang, conformémentà l'article7 du
j
Règlement, à faire leur déclaration solennelle.

Le trèshonorableMarc Lalonde, de nationalitécanadienne,a commencé sa carrièrecomme

professeur d'universitéet avocat, et a pu ainsi s'investird'embléi ien dans l'étude théorique

que dans la pratique du droit. Il fut vite appeléàexercer des fonctionspolitiques de haut:niveau

comme conseillerpolitiquedupremier ministre LesteB. Pearson,puiscommedirecteurdecabinet
.

du premier ministre Trudeau; il fut élumembredu Parlement, avant d'êtnommé à diverspostes

ministérielsimportants,dontceuxde lasanté,delajustice, de l'éneret des finances. M. Lalonde

continue de remplir des missions spécialespour songouvernement. 11a eàremplirdes fonctions

d'arbitre international. Il est conseil de la reine depuis 1971. M. Santiago Torres Bernardez, de nationalitéespagnole, n'apluà être présenté dans cette
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enceinte. Aprèsune carrière longue et remarquée à la division de codification du Bureaudes

affairesjuridiques de l'ONU,etaprèsavoir travaillé avec distinctionau sein de laCommission du

droit international,il fut le greffierénergique de cette Courdeà 1986. Aprèsavoir quittéce

poste, ilfut désigné commejuge ad hoc par le Gouvernement du Honduras dans l'affaire du

Dzflérendfrontalierterrestre, insulaireet maritime (ElSalvador/Honduras).II est actuellement

juge ad hocdésigné palre Gouvernementde Qatardans l'affaire delaDélimitation maritime e dtes

questionsterritoriales entre QataretBahreïn(Qatarc. Bahreïn).M. Torres Bernhrdeza aussi été

le conseil de plusieurs Etats dans des arbitrages internationaux.11est membre de la Cour

permanente d'Arbitrageet de l'Institutde droit international.

Il est heureux pour la Cour que le choix des Parties se soit portésur d'aussi éminentes

personnalités.

J'inviteraimaintenant chacun de ces juges prendre l'engagementsolennel prescrit par le

Statut,etje demande àtoutes les personnesprésenteà l'audiencede se lever. Monsieur Lalonde.

M. LALONDE :"1solemnlydeclare that 1will perform my duties and exercisemy powers

as judge honourably,faithfully, impartially and conscientiously."

Le PRESIDENT :Monsieur Torres Bernhrdez.

M. TORRES BERNARDEZ : «Je déclare solennellement queje remplirai mes devoirs et

exerceraimes attributionsdejuge en tout honneuret dévouement,en pleine et parfaite impartialité

et en toute conscience.))

Le PRESIDENT :Veuillez vous asseoir. Je prends acte des déclarations solennelles faites

par MM. Lalondeet Torres Bernhrdezet les déclaredûment installéesn qualitédejugesad hocen

l'affaire delaompétenceen matièrede pêcheries. L'instancea étéintroduite par une requêtedu Royaume d'Espagne,dau Greffe le

28 mars 1995, au sujet d'un différendràlla loi canadienne sur la protection des pêches

côtières, tellequ'amendéele 12 mai 1994,etéglementation d'applicationde ladite loi, ainsi

qu'àcertaines mesuresprises sur la basede cette législationet de cette réglementation,notamment

l'arraisonnement enhaute mer, le 9 mars 1995, d'un bateau de pêche, l'Estaitousviguans
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pavillon espagnol. La requêteinvoque, pour fonder la compétence dela Cour en l'espèce,les

déclarationsfaitespar chacunedes Partiesconformémentau paragraphe2 de l'article 36 du Statut.

Conformémentau paragraphe 2 de l'article40 du Statut, le greffier a immédiatement

communiquéla requêteauGouvernement canadien. -

Par lettre du21 avril 1995,l'ambassadeurdu CanadaauxPays-Bas a faiàla Courtre

que, de l'avisde son gouvernement,celle-cin'avait((manifestementpas la compétencenécessaire

pourse prononcer surlarequêteintroduitepar l'..enraisonde l'ali4éduparagraphe 2

de la déclarationdumai 1994par laquellele Canada a accepté la comebligatoire de la

Comptetenu de l'accord intervenuen l'espèceentre les Parties au sujet de la procédurelors

d'une réunionque le président dela Cour a tenue avec leurs représentantsle 27 avril 1995, le

président,par une ordonnance du 2 mai 1995, a décidéque les pièces de la procédureécrite

porteraient d'abord sur la question de la compétencede la Cour pour connaître du différend.

L'ordonnance fixait au 29 septembre 1995 et au 29 février1996, respectivement, les dates

d'expirationdes délaispour le dépôtd'unmémoiredeagneet d'uncontre-mémoiredu Canada

sur cette question. Le mémoireet le contre-mémoireont été dûmedsns lesdélaisainsi

fixés.

Lors d'une réunionque le président de laCour a tenue avec les agents des Parties

le 17 avril 1996,l'agentde l'Espagnea exprimé le souhaitde son gouvernautorisétre

présenterune réplique,et l'agent du Canada a indiquéque son gouvernement y étaitopposé.

Chacune des Parties a ultérieurementconfirméses vuesgard par écrit.Par ordonnance du - 5-

8 mai 1996,la Cour a décidéqu'elleétait suffisamment informée, au stade considéré, des moyens

de fait et de droit sur lesquels les Partiesse fondaientau sujet de sa compétenceen l'espèce,et que

la présentation,par celles-ci, d'autres piècesde procédure sur cette question n'apparaissaiten

conséquencepasnécessaire.L'affaires'estdonc alorstrouvéeen étatpour ce qui est de la question

de la compétence.

Je note aussi qu'aprèss'être renseignée aupdss Parties, la Cour a décidé, conformément

au paragraphe 2 de l'article de son Règlement,de rendre accessibles au public les piècesde

procéduredéposées àcejour en l'instance, avec les documents y annexés.

Je donne maintenantla parolea Monsieur leprofesseur José Antonio PastorRidruejo,agent
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du Royaume d'Espagne.

Mr. PASTORRIDRUEJO: Thankyou,Mr.President. Mr. President,Membersofthe Court.

Appearing before the Court for thefirst time, 1wish to pay tribute to the remarkable work

it hasone, since its establishment,inthe area of the peaceful settlementof internationaldisputes.

1also wish to present my most sincere complimentsto its distinguished Members.

1. 1recognize at the outset that the Respondent in this case, Canada, is a great country. It

is, moreover, a country for whichSpain has always held feelings of sincerefiiendship. It is also

one of its partners in an important military alliance as well as in other no less important

internationalrganizations.

It is for that reason that we fail to understand why, on 12May 1994,Canada amended the

CoastalFisheries Protection Act (Act C-29) and the Criminal Code (Act C-8) and why,pursuant

to that legislation.on3 March 1995the Canadian Govemment approved new fishery regulations

providing forthe xuure on the high seas of Spanish and Portuguese vessels. Nor do we

understand whyon 9 March 1995,the Estai, a ship flying the Spanish flag, was forciblystopped

and inspected onhe hi@ seas by two Canadianpatrolboats, pursuantto the above-mentionedlaws

and regulations. Again.we fail to understand why, in the days which followed, Canadian patrol

boats once again harassedother Spanish vessels on the high seas. -6-

Finally, we cannot understandwhy, sincethat date and up to the present time, givensuch a

seriousinfringementof Spanishsovereignty,Canada,a countryclaimingfriendshipwith us, hasnot

soughta peaceful settlementto itsspecific disputewith Spainandpersists tothis day in its negative

attitude.Spain now threatens us - and, in fact, the international community-with the

introduction ofnew legislation,C-27 ("Act amending theCoastalFisheries ProtectionAct andthe
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Canadian Merchant Navy Act"). This text contains many provisions similar to those of the

above-mentionedAct C-29.

In its Counter-Memorial, Canada claims the existence of a long tradition of friendship

behveenitself and Spain(para. 227). We donotdenythis, butto be frank,Mr. President, Members
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of the Court1 must say that Spain has a very different idea of what friendship means, even

inter-State friendship in the of internationalrelations.

2. TheCanadian Counter-Mernorialis littered with provocativeasides aimed atthe authors

of the SpanishMemorial. We shallnot recountthem in detail. Nor shallwe linger over repliesto

thoseremarks. That would be awaste of timefor the Court and for ourselves. These provocative

remarksare nothing comparedwiththe veryseriousfacts which underliethe SpanishApplication.

What we see as importantis Canada'slack of legal entitlement to take action on the high

seas, including even the use of force, against ships.flying the Spanish flag. It is the Canadian

legislation with which we take issue, as well as the serious blow that was struck against the.I,

sovereigntyof Spain as a flag State,on the basis of that legislation. Whatwe are seeking first of

al1is legal satisfaction: a statementby the Courtto the effectthat Canada hasno authorityto take

action against Spanish vessels on the high seas. We would then ask the Court to enjoin Canada

from repeating the acts complainedof, for which it shouldoffer adequatereparation. Lastly,

we cal1on the Courtto find thatthe seizure oftheEstai was unlawful,sinceCanada hasup to now

refused to recognize the unlawfulnessof that action.

3. Let it be clear, however,that we are not here to avengethe sullied honourof Spain, orto

take up the subject of fisheries management and conservation in the NAFO Regulatory Area or -7-

elsewhere. Indeed, it is in order to speak about a dispute as to sovereignjurisdiction that Spain

appears today before the Court. It is Canada'srules providing for action on the high seas by its

authorities against Spanish vessels which we do not accept. Itforthe sake of respect for Spain's

exclusivejurisdiction over ships flying its flag on the high seaa power or jurisdiction derived

01 3 hm sovereignty - that we request theprotection ofthe Court. It is Canada'slackof international

authorityto take action on the higheas against fishing boats flyingthe Spanish flag which led us

to file the Application.

We therefore regard the title given to this case - "Fisheries Jurisdiction"- as entirely

appropriate. Naturally, the term "jurisdiction" in this title does not refer to the jurisdiction of the

Court, but to the lack ofCanadian jurisdiction, or to put it another way, Canada's lack of legal

entitlement to take action on the high seas against shipsflying the flag of another State and, in this

case, ships flying the Spanish flag.

However, Spain is not only defendingits own interests. It considersthat it is also defending

the interests of the international community as a whole. This case relates to a very topical debate

in modern international relations, one concerning the conflict between national unilateralism and

internationalCO-operation.Indeed, inthe present case,the questionultimately isone of who should

have international title to exercisecertainpowers on the high seas. 1sthe international community

really prepared to leave fisheries protection on the highas exclusively in the hands of coastal

Stateswith coastlines adjacent to the zone concerned?hat is not, in any case, what emerges from

the new law of the sea. By promulgating and implementing Act C-29 and the Criminal Code

arnendedby Act C-8,Canada has shown itself to be the champion of unilateralismonthe high seas.

Spain, for its part, is firmly convinced that the only procedure for the exercise of the powers in

question in conformity with international law is one of institutionalized international CO-operation.

The issue in this case is notjust one of obtaining reparation. It is also one of guaranteeing respect

for the rights of the flag State on the high seas. -8-

3. Let me emphasizethat Spain, a modem anddemocratic State, stronglysupports the idea

of international co-operation to preserve the marine environment,rticularly as regards a

conservation of fish stocks on the high seas, both from the standpointof principlesand rules, and

from that of practice.

Spain'smembershipofthe European Union andthe latter'sparticipationinthe work of many

international fishery organizations is of this support. Spanishfishermen today respect the

measures for the conservation and management of fish stocks adopted by those organizations.
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- Canadaitselfhas acknowledgedthis fact. Asan illustration of Spain'scornmitmentto co-operation,

andwithout evenalludingto the noms establishedbythe institutionsof the European Community-

mention may be made inter alia of the Royal Decree of 28 March 1980,on the regulation of

national fishing activityetinOJicialdelEstadoof 16April 1980); the Orderof 2 March 1982

on catches of fish stocks in waters not subjectto Spanishjurisdictionjicialdel Estado

of 22 March 1982); and the Orderof 17October 1988on the regulation of activityby the Spanish

fishing fleet in NAFO watersoletin O$cial del Estado of 20 October 1988). Naturally, these

provisions ensure compliance with national and intemational rules on the subject by Spanish
fishermen. They have been promulgated and they are applied.

4. In its Counter-Memorial,Canada attempted to redefine or circumventthe subject of its

dispute with Spain. In this way, it seeks strenuouslyto bring the disputewithin thefrarneworkof

its reservation to the Court'sjurisdiction. The reservation in question relates to

"disputes arising out of or concerning conservation and management measurestaken
by Canada with respectto vessels fishing in the NAFO Regulatory Area, as defined
in the Convention on Future Multilateral Co-operation in the Northwest Atlantic
Fisheries, 1978,and the enforcement of such measures."

In order to demonstratethat the Court has jurisdiction in this case, it is importantfor us to rebut

the Canadianargumentsonthat subject. Themain subjectof the disputeshouldbe clearly defined,

as there is no doubt that it is not covered by the Canadian reservation which 1havejust read out

to you. The subject has always beenite clear, both in OurApplication and in OurMemorial.

Indeed, as we said in the Application: "Thequestion is not the conservation and management of fishery resources, but
rather the entitlement to exercise a jurisdiction over areas of the high seas and the
opposability of such measures to Spain." (point 4.)

We also said that the Application:

"does not refer exactly to the disputes concerning those measures, but rather to their
origin, to theCanadian legislation which constitutes their frame of reference. The
Application of Spain directly attacks the titleasserted tojusti@ the Canadian measures
and their actions to enforce them, a piece of legislation which, going a great deal
further than the mere management and conservation of fishery resources, is in itself an
internationallywrongful act of Canada, as it is contraryto the fundamental principles

and noms of international law; a piece of legislation which for that reason does not
fa11exclusively within the jurisdiction of Canada either, according to its own
Declaration(para. 2 (c)thereof). Moreover,onlyas fiom 3 March 1995hasanattempt
been made to extend that legislation, in a discriminatory manner, to ships flying the
flags of Spain and Portugal." (ibid,. point.)

We also referred in the Application to "Canada's obduracy in defending the recourse to

measures of coercion on the high seas" (point 3) and to, "a disquieting precedent of recourse to

force in inter-State relations"ibid).

In the Memorial, we have adopted the same position on the subject of the dispute, either

implicitly orexplicitly (pp. 9, 36 and 37, and 85 et seq.).

In a nutshell, it is the lack of title to take action onthe high seas which Spainhas emphasized

in its Application and in its Memorial. That is the argument which it again puts forward today.

It must therefore be absolutely clear that the dispute submitted to the Court essentially relates not

to measures forthe management and conservation of fish stocks, butto Canada's lackof titleto take

action on the high seas, as it did in March 1995, against ships flying the Spanish flag.

5. As we are on the subjectof title, however,l1possible ambiguity shouldbe dispelled, and

we should make clear what we mean by that tenn. To that end, we shall rely on the settled

jurisprudence of the Court itself.

Indeed, it found in 1986that this concept:

"may also, and more generally, comprehend both any evidence which may establish
the existence of a right, and the actual source of that right" (case concerning the
Frontier Dispute (Burkina Faso/Mali), (I. C.J . eports 1986, p. 564, para. 18). In fact, the term "title" was employed in the Application and is still used by us in its sense

asthe sourceof a right. It mustbe emphasizedthatthis conceptshould notbe unknownto Canada,

in so far as it relates to maritime areas.the case concerning GuZfofMaine (CanadalUnited

States ofAmerica),the Chamberof the Court pointed out that:

"it is therefore correct tohat intemationallaw conferson the coastal State a legal
title to an adjacent continental shelf or to a maritime zoneadjacent to its coasts;
would not be correct toaythat internationallawrecognizes thetitle conferredon the

State by the adjacency of that shelf or that zone, as if the mere natural fact of
adjacencyproducedlegalconsequences" (1C.J. Reports1984,p. 296,para. 103; italics
supplied in the original).

In short, the conception of title which Spain has invoked in its Application and in its
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- Memorial, and which it continues to invoke, is precisely the one confirmed by the consistent w

jurisprudence of the Court. Whenwe contend that Canada has no international legaltitle to take

action on the highseas against ships flying the Spanish flag, we are using the concept of title

accepted by the Court: in other words, Canada's lackof entitlement to engage in such actions.

It is true that Spain also uses the word "title" in anotherin this case. Indeed, in the

context of Canada'sdomestic law, laws would constitute title for the adoption of regulations.

7. That having been said, the Spanish Government'stwo main arguments conceming the

jurisdiction of the Courtn easily be put forward.

First mainargument. The Canadianreservation with regard tothe Court'sjurisdiction covers
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only measures for the managementand conservation offish stocks,as well as the implementation

of such measures, in the NAFO Regulatory Area. It is clear that these words must be interpreted

in accordancewith internationalaw. It is also clear that the reservation does not cover the main

subjectof the dispute,narnelythe question of Canada's internationaltitle to exerciseitsjurisdiction

against foreign ships on the highas. Allow me to remindyou in this connection of the Court's

finding in the case conceming theuIfof Maine(Canada/UnitedStates of America): the mere

natural fact of adjacency is not in itself a title recognizedby internationallaw(I.C1984,ports

p. 296, para. 103). 1 would also emphasize that, for lack of title, the Canadian Act C-29 and - 11-

Act C-8 amending the Criminal Code do not constitute a measure. They are mere facts.

Accordingly,they are not covered by Canada'sreservationwith regardto the Court'sjurisdiction.

Second main argument. Theuse of force against foreign vessels on the high seas cannot

reasonablybe consideredto constituteimplementation ofmeasuresrelating to the management and

conservationof fish stocks.1 should mentionin this connectionthe finding made by the Court in

r O1 7 the case concerning Right of Passage over Indian Territory (I.C.J. Reports 1957, Prelirninary
*
Objections, Judgment of 26 November 1957,p. 21): "It is a rule of interpretation that a text

emanating fiom a Government must, in principle, be interpreted as producing and as intended to

produce effects in accordancewith existing law and not in violation of it."
.
Afterthe statementbyProfessorRemiroBrotonsconcerningthegeneral principles governing

the Court'sjurisdictionwhich arerelevantinthis case,ProfessorsHighetand Dupuywill showthat,

if international law prohibits the use of force, the provision forbehaviour in the Canadian

legislation (Act C-29 and Criminal Code) which we are attacking, is covered neither by the terms

nor by the spirit of Canada'sreservation withregard to thejurisdiction of the Court. As you will

be asked again by Professor Highet: could the bombing or torpedoing of a fishing boat be

consideredto constitute implementationof measures for the management and conservation of fish

stocks merely because Canada says that they do, accordingto its reservation?

8. Throughout the Counter-Memorial,Canada showed anobsessive concern to conceal the

substance of the case from the Court. And for good reason! The facts underlying the present

case- unjustifiedpromulgation oflegislationat variancewith international law and, onthe basis

of that legislation,rcibleseizure of a Spanish ship on the high seasare not likelyto promote

the international image of a country.

Of course,we areaware that, at the currentstage of the proceedings, it is the question ofthe

Court's jurisdiction which isnder discussion, as a result of the Order made by the Court on

2 May 1995. However, leavingaside the generic links which inevitablyexist behveen the substance ofa

disputeand thejurisdiction of an internationalcourt to resolve that dispute,rvethat,

in so far as reasonable links exist in this case behveen the jurisdiction of the Court and the

substance of the case, it lies with us to put the spotlight on them in order to assure ourselvesof

yourjurisdiction.

In the present case, the reasonable links are three in number, namely:

First, the actualterms ofthedianreservationwithregardto thejurisdiction of theCourt,

as it contains basic concepts;
. .
Second, the needfor Spain to define the real subject-matterof the dispute and to sho-that
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itcontinues to exist. Thesetwo demonstrationsneedto bebased on substantiveconsiderations;and

Third, therebuttal of Chapt1rof the Canadian Counter-Memorial, which also calls for

considerations of this type. Let it not therefore be a somewhat contemptuoustone, as is

doneby Canada in its Counter-Memorial,that we are puttingthe cart before the horse, by giving

precedence to substance overjurisdiction.
First ofll, the reservationof paragra(4 of the Canadian Declaration of acceptanceof

theCourt'sjurisdictiontainssubstantialdefinitions. Therecan be nodoubtthat the expressions

"disputes arising out of or concerning conservation and management measures.and the

enforcement of such measures" concem questions of substancIn connection with this, the W

pleadingsof ProfessorHighet and Professor Dupuywill showthat the use of force providedfor in

Canadianlegislati(Sec.8.1of Bill C-29 andBill C-8),and used in fact inthe seizure of theship

Estaiand in the harassment of other Spanish ships, is not a measure concerned with the

conservation or management of fish stocks or with the execution of such measures. In this first

case,there is clearl?a morethan reasonable link betweenthe merits of the case andthejurisdiction

of the Court.

Secondly, mention must bemade of Canada's positionon the object and existence of the

dispute. Regarding the persistence of the dispute, Canada maintains that there is no longer a - 13 -
dispute; according to the Counter-Memorial, itwas settled by the Agreement concluded between

the European Union andCanada on 16April 1995. A Counsel for Spain, Professor Remiro

Brotons, will presently be showing you that this position is not correctthe Agreement in

questiondealt only withthe disputethat hadarisenbetweenthe EuropeanUnionandCanada. What

was concerned there was another dispute regarding conservation and management measures in

respect of fisheries in the NAFO Regulatory Area. The dispute between Spain and Canada has

quiteanotherobject. It chiefly relatesto whether Canadapossessesanytitle whatsoeverto exercise

O 19 jurisdiction on the high seas against ships flying the Spanish flag or, to put it anotherway, to the

inconsistencyof someCanadian normswith internationallaw. Whatwe are talking about are the

norms relied upon by Canada to violate, by meansof the use of force,a sovereignright of Spain.

The right to exclusivejurisdiction of a State over ships flying its flag on the high

of coursenot beentransferred to the institutionsof the European Union. It unquestionably rests

with the member States. As 1 have already said, Professor Remiro Brotons will be the one to

develop these arguments when he addresses you, but 1 announce them now synoptically to

demonstratethat the discussion between Spainand Canada on the object and persistence of the

disputemust of necessitytake intoconsiderationsomefeatures belongingto the meritsof the case.

Thereis a third reasonfor Spainto concern itselfwith somequestionsof substance. Canada's

Counter-Memorial devotes anentire chapter, Chapter 1(16 pages), to what is termed the "factual

and historical background" of thecase. The chapter of course contains constant references to

matters of substance, most of which references incidentally are inaccurate.

ProfessorSanchezRodriguezwill presently,inhisoral arguments,beakingthetime torefute

them so as to show the Court the glaring contradictionsof the Counter-Memorialin this respect.

9.1 should liketturnnowto some mattersraisedinthe writtenproceedings. Thesesubjects

will be broached by thearious Counsel of Spain throughout their statements, but 1 propose to

considerthem briefly inan overallperspective. 1thinkthat my accountand those of mycolleagues - 14-

will help the Court to interpret the Canadianreservationto itsunilateralDeclarationof acceptance

of the Court'sjurisdiction.

For wantof legaltitle, it is absolutelyclear that the Canadian Bills C-29 and C-8 constitute

wrongful acts in international law. Theyinfringe an importantseries of principles ofinternational

law specified by us in the Application, including the general principle proclaimingthe exclusive

jurisdiction of the flag State over ships on the highnd that prohibitingthe threat or use of

force. The application ofnadian legislation to Spanish fishing vessels on the high seas thus

constitutesaninternationallywrongfulactengagingCanada'sresponsibilitytowardsSpain. It isalso

clear thatthe violationof internationallawby Spainhas acharacterof continuitythat helps to keep
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.
O 2 O intactthe interestattachingto the objectofthe SpanishApplication. Canada hasstillnot abrogated

the Act enablingits Govemment to act oncemore against Spanishfishingvessels on the high seas.

In these circumstances, in accordance with the general principles governing the international

responsibility of States,et forth by the International Law Commission in its draft articles of

1996(Article 4,Report, pp. 148et seq.),Canada is obligedto cease itswrongfulconduct. Which

istoSaythat it is obligedto abrogateBill C-29 andBill C-8modi@ingthe PenalCode. According

to the principlesdrawn fiom customarylaw as statedby the Commission,it is also obligedto give

us assurances or guarantees of non-repetition of the wrongful act (ArtThis)means, in

particular, that Canada should give Spainan undertakingnot to promulgate Bill C-27.

In accordancewith the general principlesjust mentioned, Spain,as the aggrieved State, is

entitled to full reparation fiom Canada.ce the harm caused by Canada to Spain is in part

non-material- a serious violation of a right deriving from sovereignty, such as exclusive

jurisdiction over ships flying its flag on the high seas - we shall in due course seek judicial

satisfaction in the form of a decision by the Court that Canada has breached international law

against Spain. But the Court will have observed, on hearingtheer 1havejust given of Our

Application, that we do not let it go at that. - 15 -

10.Everyone knows the importance and worth of the contribution of the Permanent Court

and of this Court to the affirmationand development of the most basicrules of the law of the sea.

The Hague Court did so, in particular, regarding thejurisdiction of the flag State or the rights and

duties of coastal States. It would be very regrettableal1Statesshouldthe Court henceforth give

up this type of dispute for other tribunals to handle, including cases in which its jurisdiction is

nevertheless well assured, notably on account of the contradiction between Canada's declared

intention and actual action.
. .

- - 021 In conclusion, Mr. President, 1shall stateonce more on behalf of Spainthat, in this case,the

Court well and truly has jurisdiction because the actual action taken by Spain went beyond its

declared intentions, which cannot be properly construed as admitting of recourse to armed force.

This case is alsocertainly admissible because the rights of Spain as the flag State were

prejudiced, have still not givenrise to reparation and remain under threat.

Mr. President, Members of the Court, this is where1finish my statement this moming and

1thank you for your kind attention.

'Mr.President, 1would ask you kindly to give the floor to my colleague, Professor Sanchez

Rodriguez. Thank you very much.

Le PRESIDENT :Merci, Monsieur le professeur Pastor. Je donne maintenant la parole à

Monsieur le professeur Shchez Rodriguez.

Professor SANCHEZ RODRIGUEZ: Thank you, Mr. President. Mr. President, Members

of the Court, 1shall give you an account of the relevant facts or situations and the features which,

in Spain's view,are important in this case.1should first like to make it clear that the term "facts"

is to be taken in its broadest sense of al1those thatthe Court needs to establish its ownjurisdiction

and to rule on admissibility.

From this point of view, intemational case-law distinguishes between constitutivesituations

or facts and dispute or justiciable dispute. For example, in its Judgment in the Interhandel - 16-

(PreliminaryObjections)case, the Court stated that "the facts and situations which have led to a

dispute must not be confusedwith the dispute itself' (I.C.J.Reports 1959, p. 22. 1shall spareyou

the subsequentreferences sincethey areto be found inmy oral pleadings). Consequently,the facts

or situations constitutingthe dispute,inadditionto the factorsreliedupon, are featuresdefiningthe

causapetendi, and 1shall tell you only what you need to know to reach a decision in this initial

phase of the proceedings.

Here are the facts that should hold our attention in this case.

1. On 10May 1994, Canadadeposited with the Secretary-Generalof the UnitedNations a

new Declarationofacceptanceofthe compulsoryjurisdiction oftheCourt. Ittherebyaccepted "al1

disputes . . .other than":

"(4 disputesarising out of or conceming conservationandmanagementmeasurestaken by
Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the
Convention on Future MultilateralCo-operation in the Northwest AtlanticFisheries, 1978,
and the enforcementof suchmeasures"(MS, p. 8; emphasis added).

It is clear that in relation tothe previousanadian Declaration, that of 10September 1985

(see I.C.J. Yearbook1990-1991,No.45, pp. 73-74), the novelty of the present Declaration lies in

the addition of subparagraph (4 just cited; of course in the general context of its Declaration of

acceptance as a whole.

2. This Declaration was depositeda mere two days before the '!Actto amendthe Coastal

Fisheries ProtectionAct", promulgatedon 12 May 1994(MS, Anns., Vol. 1,pp. 69 et seq.). The

said Act determines, under the conservation and management measures, that"[nlo person, being

aboard a foreign fishing vesse1of a prescribed class, shall ..fish or prepare to fish" on the high

seas (Sec. 5.2). The legislation in question does not expresslydefine of what the enforcement of

such measures consists. On the other hand, it contemplates a wide range of actions concerning

foreign ships on the high seas, such as the boarding of foreign fishing vessels by Canadian

protection officers (Sec. 7) and exercising the power of arrest, entry, search or seizure or other

power (Sec. 18.2). - 17-

The Canadian Act also mentions other such unwonted and exceptionally serious actions as

the use of force (Sec. 8.1: "A protection officer mayse force that is intend..to disable a

foreign fishingvessel"), and the applicationof Canada'scriminal law toany act or omission on the

highseas that would be an offence under an Act of Parliament (Sec. 18.1). The Act also contains,

in Section 8, provisions concerning the parallel Bill C-8, entitledto amendthe Criminal

Code and the CoastalFisheries ProtectionAct force) (a copy of which is available to the Court

O 2 3 in its library), for the very purpose of reinforcingthe provision in Section 8.1 on the use of force,

even situating it on the same strictly criminal plane.

A preliminary conclusion that can be drawn from the foregoing is that the use of force can

never be interpreted, fromany objective andreasonable point of view, asthe implementationof any

conservation and management measure. The fact of giving the hypotheticalrights ofh species

precedence over the rights ofuman beings and of the ships of a State runs counter to general

international law, the law of the sea and human rights.

3. This Canadian Act has been closely CO-ordinated, in time and in its material

implementation, with actions conducted at the same time in the field of Canadian criminal law. It

is also relevant to stress that thedian criminal legislation was adopted two days after the

deposit of thenew Canadian Declaration. On the 12May in question the Act to amend the

CriminalCodeandtheCoastalFisheries ProtectionAct force) was promulgated. An Actwas thus

adopted that declared lawful, in a premeditated manner, the use of force in areas under Canadian

jurisdiction and in purely international maritime areas.

It is indispensable, at this juncture, to quote the terms of paragraph 25 (4) of the Criminal

Code, according to uhich:

"A peace officer, and every person lawfully assisting the peace officer, is
justifiein usrnfgorce that i. . likelyto causedeathor grievousbodily harm ..."
(Emphasis added.) - 18-

Furthemore, Article 8 of the CoastalFisheries Protection Actwas also amended,by adding

text, as follows:

"8.1. (1) An officer may, in the manner and to the extent prescribed by the
regulations, useforce that is intendedor is likelyto disable aforeignfishing vessel."
(Emphasis added.)

As regardsthisnew,different,butrelatedAct, alsodatingfrom 12May 1994,inotherwords

two days after the depositof the new Canadiandeclaration,1shouldjust liketo briefly emphasize

two preliminaryaspects. Firstly, Canadiancriminal lawpermitsthe use offorceof sucha kindthat
024
it may cause death or cause serious bodily hm; secondly, the use of force is expressly

contemplated against foreign vessels on the high seas.

4. The discussionsurroundingthe above-mentionedacts gave rise to interestingdebates in

the CanadianParliament,which evencontinuedafter Canadahaddepositeditsnewdeclaration. We

arenot goingto reproducethem herein detailbut wouldliketo drawthe Court's attentionto certain

arguments.

To begin with,MinisterTobineventuallyacknowledged,eventhough usingal1kinds ofpuns

andeuphemisms,thatthe Act toAmendtheCoastalFisheriesProtectionActpermittedtheCanadian

authorities to use forceagainst foreignvessels on the high seas (cf. MS, pp. 79-80). However,at

the time, the latterwerenot supposedto includevesselsof the other NAFO memberStates. It was

other vessels:private or stateless ones.

Secondly, duringthe Senate debates (cf. ibid., p. 271), one senator alluded to the opinions

of variousjurists that the legal provisions aimedat the taking of measures against foreign vessels

on the high seas by the use of force might run counter to international law. The reply by the

Minister of Foreign Affairs was curiousto Saythe least:

"Our bill, which contains provisions that enable us to take action, has a solid
legal basis. As you know, to protect the integrity of this legislation,we registered a
reservationtotheInternationalCourt ofJustice,explainingthat this reservation would
of course be temporary and would apply only during such time as we felt was

necessary to take retaliatory action against those engaged in overfishing." - 19-

It is a strangeconcept of legalitywhich reduces it to the sole criterionof impunity. Indeed,

Mr. Tobin, Ministerof Fisheries and Oceans, also indicated, for his part, that:

"In 1970,Canada passedthe Arctic WatersPollution PreventionAct. That act
was passed after Canada had registered, exactly as we did on Tuesday,a resewation
to the International Courtof Justice." (Cfibid p.,273.).

. .
In other words, he does not deny that what was then a draft bill is in contradiction with
025
. -
internationallaw. However, it is clear that these comments,as well as the adoption of these bills,

tookplace afCer- andneverbefore- thedepositofthe newCanadiandeclaration,which included

the reservation relatingto the conservation and management measures.

Various conclusions can be drawn from these parliamentary debates. To begin with,the

expressacceptanceofthe use offorceon the high seas,which, withoutpewerting the mostclassical

mies of legal interpretation,can never be interpretedas a resources conservation or management

measure, still less as the enforcementof such measures. Secondly,the implicit acceptance ofthe

intrinsicallynlawfulcharacter of the Bill as regards internationallaw. Its rhetoricaljustification

has always been the argumentthat it was not likely to come before this Court. To do so, it based

itself- it is importantnottoforgetthis - onpurelydomesticantecedents,suchasthe 1970Arctic

Act andthe correspondingresewation made at the time in that country'sdeclaration of acceptance

of thejurisdiction of the Court.

This attitudeof theCanadianauthorities is tantamountto an admissionthat Canadais bereft

ofany valid international legaltitleto act onthe highseas. In this context,Minister Tobincarefully

refrainedfrom broaching two legalquestions of fundamental importance beforehis parliamentary

colleagues. The firstofthese iswhetherthe new resewation would becapableof compensatingfor

the lack of legal title, giventhat his text did not refer tothis question. Thesecond aspect which

Mr. Tobin "overlooked"is the reasonwhy the new resewation of 1994was much more restrictive

initsterms and in itswording thanCanada'sresewationof 1970,whichremained broaderandmore

ambiguous. In short, he didnot explain the reasons and the technical consequences of the new reservation in the explicit context of the legislationwhich, two days after the date of deposit, was

already being discussed and adopted.

5. Duringtheintroductionofthe bill, theMinister ofJusticeandAttorneyGeneral of Canada,

Allan Rock, expressly acknowledgedthat the

0. "protectionofficersemployedby the Departmentof Fisheriesand Oceanswith a view
026 to implementingthe fisheries regulationsare assumed to be peace officers within the
. - terms of the Criminal Code . . and may sometimes have to use force in order to
disable a foreignfishingvesselwhich hasinfiinged our laws andis seekingto escape"

[translationby the Regise]

and as everyone knows, peace officers may cause death or grievous bodily harm (cf. Canada.

House of CommonsDebates, Vol.133, No. 021, 1st Session,35thLegislature, OfJicialRecords
w

(Hansard). Monday 14 February,1994, pp. 1293- 1294).

Atthetime, certainCanadianMembersofParliamentvoicedtheir strongoppositiontocertain

aspects of what was still only at the bill stage. Mr. Ivan Bernier, for example, made eloquent

reservations regarding its legality:

"The Criminal Code permits the peace officer to use force in order to arrest a
fugitive. We accept this principle in the context ofcriminal law, but consider this
approach unsuitablefor the fisheries context,[as] inureyes illegal fishermenare not
criminals."

Indeed, "foreignfishermenare humanbeings. Theydo not deserveto die for havingsoughtto earn

a bit of extra money at the end of themonth", and it must be borne in mind that a

"holefiom a 303rifle shell could indeedsink a boat, but the reason itcan sinka boat
is that it has holed a hull as a waming, apparently. However, inthe case of a bullet
hole in a glass fibre fishing vessel, 1would not like to be the crewman sleeping in

steerage."

His second reservationwas equally fundamental,asserting as he didthat "Canadacannot legislate

inan internationalzone and,consequently,negotiation becomestheonlypossibleavenue"(cf. MS,

pp. 1295-1296). Once again, we are confiontedwith the problemof the title or, in other words,

Canada'slack of an internationaltitle to act onthe high sea- still worse using force- against

foreign vessels. - 21-

Mr. Dhaliwall, Parliamentary Secretary to the Minister of Fisheries and Oceans, made a

muddled allusion to the need for protection against improper fishing by vessels under flags of

convenience "hidden behind obscure subtleties of international law". Hewent on to allude to

various precautions allegedlyadopted in advance with respect to them before concluding: "Only

afier that is force used and then only such force as is necessary to stop the vessel and make the

arrests. This is in compliance with international usage concerning the use of force to disable a

. . vesse1 on the high seas". Having made such a surprising assertion, he ultimately had to

O 27 acknowledge that: "On the high seas, we must respect international laws, but we are working
.. -
extremely hard to get that changed". The immediate response from Mr. Ivan Bernier was:

"However, 1must remind him that the Nose and Tai1of the Grand Banks of
Newfoundland lie outsidethe 200-mile zone. In other words, this does not fa11within
Canadianjurisdiction. It is not the reinforcement or buttressing of the proposed bill
which is going to solve this problem." (Ibid., pp. 1316-1317.)

Canadian parliarnentary debates have finally highlighted a number of quite clear-cut

conclusions: (a) "Canadacannotlegislate inan internationalarea"; (3) consequently,theonlyway

tosettle the problems of overfishing in international waters is CO-operationbetween the States

involved; (c) it is difficult to use force to disable a vessel on the high seas "without the risk of

endangering the lives of the crew" (Home of Commons Debates, OfJicial Report (Hansard),

1st Sess., 35th Parl., Vol. 133, No. 054, Thursday 21 April 1994,pp. 3322-3323).

During the debate on Bill C-8 no CanadianGovemmentminister dared to affirm oncemore

that its subject-matter was in keeping with international law under the pretext that Canada was

going to present a new reservation to its Declaration of acceptance of the compulsoryjurisdiction

of the Court, as it had for the Coastal Fisheries Protection Act.e is therefore an essential

difference between fisheries law andcriminal law. That is certainly due to the diff~cultyof

explaininga lawpermitting theuse of forceasthe implementation ofanymeasures of conservation

or management of fishery resources.

6. What Spain cannot concede, making a logical interpretation in good faith, is that the

regulation of the use of forceon the highs against foreign vessels, involving the possibility of -22 -

causing death or grievous bodily harrn, can be regarded as a measure of conservation or

management of fishery resources and,still less, as an aspect or indication of the enforcementof

such measures. Above all,that would be gravelydetrimentalto the most elementary principlesof

international law in respect of interpretation,as Spainhave occasion to repeatto you in the

course of these proceedings.

7. On 3 March 1995a modificationto the 1994regulations(MS, Ann. 19,pp. 309-315)was
028
approved, beingthe additionof a Table IV in which, beside the "pirate" vesselsor those flying a

flag of convenience,this badCompanyincludes Portugueseand Spanish vessels. This decision is

most surprising since, during the parliamentary procedure of debating the draft legislation,thew

possibilityof extending itto cover ships flyingthe flag of aNAFO participant Statewas explicitly

denied.

8.Only sixdaysafterthe approvalofthe aforesaidregulations,narnelyon9 March 1995,the

fishingvessel Estai, flyingthe Spanish flag and with a Spanishcrew, was stoppedand inspected

onthe high seas inthe areaofthe GrandBanks,some245 nauticalmiles offthecoast,bythe patrol

boatLeonard J: Cowleyandthe coastguardvesselSir WillfredGrenfell; this cameafter successive

attempts at boarding by gunboats manned by individuals armed with automatic weapons and

intimidatory manoeuvreswith warning shots fired from a 50-mmgun by the patrol boat Leonard

J. Cowley, after receipt, according to the Canadian note of 10March 1995, of "the necessary W

authorizations". The said authorizations were clearly obtained fiom the Canadian authorities

beforehand; yet at no time was any attempt madeto obtain the authorization of the flag State,

Spain.

The boat and its crew, whose security and integrity had been endangeredas a result ofthe i

coercive action by the Canadianflotilla, were forcibly escortedaway and held incommunicadoin

the Canadian port of St. John's, Newfoundland,where the master of the Spanish boat was

imprisonedand subjectedto criminal proceedings for having engaged in a fishingactivity on the

high seasoutside the 200-mileCanadianzone, andfor resistingauthority (ibid.,Anns. 1,2 and 3). - 23 -

It is important to emphasize that al1the Spanish vessels were engaging in their activities in

accordance with the NAFO system and with the express authorization of the Community. The

Spanish authoritieswere never wamed by the Canadianauthorities of their intentionto board and

inspect Spanish vessels.

On the following days other Spanishvessels sufferedvarious measures of harassmentand
029

inspectionby severalCanadiancoastguardvessels orpatrolboats, withtheobviousdangerthat they

representedforthe physical safetyof persons (ibid.,Anns. to 8),also inthe free areasofthe high

seas outside the 200-mile zone of Canada'sfisheriesjurisdiction.

After these occurrences both Spainand the European Community and its member States
.
presentedNotes Verbales of protest to the Canadian Govemment. We wish to drawyourattention

to the fact that Canada has never formally repliedto the SpanishNotes and has remainedtotally

silent. Bilateral negotiation has never been possible. For their part, the Council and the

Commissionofthe Communitymade condemnatorydeclarationsinthisrespect, whichalsoreceived

a negative response fiom Canada. In view of what hasjust been outlined,we shouldnow bear in

mind the fact that by stopping and inspecting the Estai, Canada was not refuting a NAFO

conservation and management measure; on the contrary, what were involved were unilateral

measures running counter to those adoptedby NAFO itself.

Mr. President,1stillhave a fewobservationsto make but,in view ofthe hour,youmay wish

us to break off here for a pause.

Le PRESIDENT :En effet. Nous allons donc faire une pause.

Mr. SANCHEZ RODRIGUEZ: Thank you very much, Mr. President.

Le PRESIDENT :L'audience serasuspendue pendant quinze minutes.

L'audienceest suspendue de II h 20 à II h 30. -24 -

Le PRESIDENT :Veuillez vous assoir. Je donne la parolàMonsieur Sanchez Rodriguez.

Mr. SANCHEZ RODRIGUEZ: Thank you, Mr. President.
. .
9. Spain therefore considered that it had an obligation to restore the application of
- - 030
internationallaw, which hadbeen infringed in regard to it by Canada. It consequently chosethe

course of litigationbeforethis Court,which is quintessentiallythe mostpeacefuleans of settling

disputes between States.

10. According to Spain, al1 the interna1 contradictions detected in the Canadian

Counter-Memorial,which are often striking and always significant, also constitute a relevantfact

and a relevant situation.

11.The first contradictionwe have observedconcerns the lovelhaterelationshipthat seems

to be aroused by the references to the fisheries system of theEuropean Community in Spain's

Memorial. Hatred because some references are regarded by Canada as unimportant and out of

context (CMC, p. 56, para. 139; p. 56, para. 141;p. 66, para. 172). Love when it attempts to

demonstrate that the dispute is settled and therefore non-existent(ibid., p. 5, para. 12), or in the

constant references tobe found in Chapter IV (strangelyonthe merits ofjurisdiction) whereitas

no hesitation in alluding copiously to specific features of Community fishing policy and

implementation(ibid., pp. 81 to 86), once more to deny the existence of the dispute.

12.The second disputeof the Canadian Counter-Memorialconsistsin accusingthe Spanish

Memorial of broaching the merits of the dispute while[itselfl making substantive allegations.

The CanadianCounter-Memorialoncemorereproaches Spain withhaving createda premature

debate on the rneritsof the dispute when the present state of the proceedings refers solely to

jurisdiction. It saysthat Spain systematically put the cart before the horse, as it were (pp. 4-5,

para.11; p. 7, para.i4;pp. 7-8, para. 16; p. 22, para. 45; p. 53, para. 128).

After the apparently neutral, peaceful and innocent heading of Chapter1 (Factual and

Historical Background). the opposing Party launches resolutely into a demonstration on the

legitimacyand legalityofthe 1994legislation,and has no hesitationin enteringintoconsiderations - 25 -

of substance in an attempt tojustie its national legislationand the reservation added in 1994to its

Declaration of acceptance of compulsoryjurisdiction, which is exactly what it holds against the

Spanish Memorial.

* 031 We shall merely recall in this respect that Article 79, paragraphs 3 and 4, of the Rules of
. -
Court contemplate the possibility of separating procedural and substantive allegations n a given

case. As OurAgent, Professor Pastor Ridruejo, said, the core of the dispute existing between the

two countries is the existence or non-existence of title to act on the high seas against ships flying

the flag of a foreign State. If there is no title, the so-called Canadian measures are not measures

but purely and simply wrongful acts.

13.Thethird fundamentalcontradictionofCanadaconsists inaffirmingand, at the sametime,

denyingthe existence andpersistenceof a legaldispute. But 1shall not develop this aspect indepth

since it will be dealt with by my colleague, Professor Remiro Brotons.

14.The fourth contradictionofthe Canadian Counter-Memorialrefers to the present absence

of a dispute with Spain since the name of my country no longer features in the Coastal Fisheries

Protection Regulations of 1 May 1995. The Canadian Counter-Memorial describes this little

regulatory deletion as follows:

-
"Canada's legislationthus no longerapplies to Spain" (p. 5, para. 12);

- "Canadian legislation no longer applies to Spanish . .. vessels . .. " (p. 81,
para. 210);

- "The matters in dispute between Canada and Spain have been settled. Spain is no
longer subject to the Canadian legislation." (P. 88, para. 230; emphasis added.)

Hence, what Canada does not tell you, is that the bill continues, potentially, to be applicable

to Spain and to any other State in the world, since it has not been arnended. Such a conclusion

does not hold water since Bill C-29 and Bill C-8 remain in force and since it is clear that their

content can be applied to Spain at any time, simply by amending the Regulations.

15. Canadian legislation has not only violated the individual rights and interests of natural

and legal persons, such as those of the owner, master and crew of the Spanish vessels. It has - 26 -

violatedand continuesto violatethe rights and interestsofflag States. In this case, the rightsand

interests of the Spanish State.

The Canadian Counter-Memorial questions "what Spain mightexpect in addition to what
032

Canadahas already done, or what damages might be requested in addition to those claimed in the

pendingcivil case" (p. 86, para.224). Further on, itadds that "theproceedings against the Estai

and its master have been discontinued" (p. 88, para. 230).

The opposingParty thus seeks to minimizethe case: accordingto it, it is a matter of minor

importance between a ship, its master and the Canadian authorities, an individualcase, without

importance, minor, lacking the necessary weight for it to be brought before this Court, since it
1

absolutely does not involve the Spanish State.

However, what we are discussinghere is thejurisdiction of the Court to consider a pieceof

Canadian domestic legislation whichapplies on the high seas, which has affected andwhich still

potentially affects,a large number of ships, Spanish,Portugueseand others; it may infringe their

freedom,securityand life oftheir crews. Thisbodyof legislativeinitiatives,lackingany legaltitle,

cannot hide behindthe term "managementmeasures". They are simplyinternationalwrongfulacts.

Weare discussingthe Court'sjurisdiction to considerharm causedto a flag State,Le.,Spain,whose

prerogatives on the highseas have been seriouslydisregarded; it is not a matter of the privateor

individual rights of Spanish ships. It is the very right of the State which has been violated; 1

consequently,this violation had caused it direct, serious, assessableand clear prejudice.
.

Spain wasobligedto despatchas a matterof urgencya numberof units of its navyto protect

the Spanish fishingvessels and their right toail and fish on the high seas (cf. MS, Anns., Vol. 1,

Ann. 5, pp. 21 et seq.). Spainwas also obliged to initiate intensenegotiationson several frontsat

once. Canada's actions thus effectively caused it direct harm and prejudice independentlyof the

measures adoptedby Canadawith respect to the owner, master, crew and the fishing vesse1Estai.

16. Mr. President,we arenow goingto analyseanotherfactwhich, withoutanydoubt,causes

seriousproblems from the legal standpoint. -27 -

The CanadianCounter-Memorialdevotesa good manypagesto interpretingthe terms of its

resewation, inparticulartothemeaningoftheterms "conservationandmanagement measures",and

"theenforcementof suchmeasures"; indeed,in its argument,itdrawsa carefuldistinction between

those measures and their enforcement(cf. CMC, para. 4; para. 6; para. 87; paras. 89 and 90;

para. 92, etc . ..). 1 would emphasize that the word "enforcement" cannot be interpreted

independently ofthe word "measures", to whichit is subordinate. In the literal context of the

Canadianreservation of 1994,itwould be impossible,withoutthe existenceof "measures",to refer

to their "enforcement".

At one point,the opposingPartymakesa reasonable textual interpretation of itsreservation,

acknowledgingthe distinctionbetweenenablinglegislationand its enforcement. Nevertheless,and

quitewrongfully, it adds a new materialandtextual content: the enforcementmeasures.This new

category is the result of a formidable conjuring trick (cf. ibid., para. 40; para. 109; para. 153;

para. 188; para. 219; para. 222;para. 223).

The purpose of the expression "enforcement measures" is to gloss over the important

relationshipbetween"themanagementandconservationmeasures . .andtheenforcement ofsuch

measures", since they are trying to make us forget the word "such" or minimize its importance.

WhatCanada is after isthe introductionoftheexpression "measuresto enforcesuchmeasures",but

without includingthe last three words. This is a very revealing game.

17. We have now reached one of the sensitive points. Let us analyse the facts.

To beginwithwe haveanobjective fact: Canada amendeditsCriminalCodewhenBill C-29

wasbeing drawn up, linkingArticle 8.1 of the latter to what is laid down by Bill C-8with respect

tonecessaryforce. This question is alwayswell concealed inthe Canadian Counter-Memorial,as

though Spainwere only presenting objectionsto Bill C-29. However,this fact was the subject of

a major debate in the CanadianParliamentwhen the government billswere under discussion. But

thesilence ofthe opposingPartyisexplainedbythe factthatCanadaiscurrentlyapplyingmeasures

of a clearlycriminal nature, which are manifestly not includedin its resewation. Secondly, the Canadian criminal and fishing legislation currently in force considers
. - 034
coastguardsto be "peaceofficers" and permitsthem to use force to the extent of causing the death

orserious bodily harm to members of the crew of foreignvessels fishing on the high seas and, in

addition,permits the use of force directlyagainstships. However,the factthat the Canadian

Counter-Memorialscrupulouslyglosses over Bill C-8 should not make us overlook its existence.

Thirdly, theanadian Counter-Memorialdevotesonly two short lines and four more at the

foot of the page to the question of the use of force,which had already been suggested in the

Spanish Mernorial, but solelyby referenceto fisherieslegislation (cf. para.31and note 53). This

silenceintheCanadianCounter-Memorialspeaksvolumes. It revealsthe difficultyexperiencedby
*
the opposing Party in includingthis decisive questionin the legal discussion onjurisdiction. In

reality,Canada knowsthat,where the factsare concerned, ithastoo far inrelationto the field

actually covered by its declaration and its reserva(4.n At this point Canada makes two

assertions: firstly,the use offorce constitutesthe enforcement ofthe management and conservation

measures; secondly, the use of force permitted by Canadian legislationis regulated according to

strict criteria. Canadas not dare to Saythat it would also be permitted by international law.

Regarding the boarding of the Estahe Canadian Counter-Memorialcarefully omits to Saythat

warning shotswere fired fiom a 50-mmgun bythe patrolboat LeonardJ. Cowley,and it uses more

peaceful and clement expressions"inspected, seized, boarded"(cf. para. 15; para. 42). It -

not state that it used real deterrentconcealingthe tme facts by describingthem in what is

supposedto beneutralterms- and thatarmedmenboardedthevessel. It must notbe overlooked

that what was at issue was theeaceful navigation of fishing vessels on the high seas.

The use of force, of "thenecessary force" to use the Canadianeuphemism, is contemplated

and directly permitted by Bills C-8 and C-29; notjust by the regulations enforcing those Bills!

This is one of the reasons why Canada cannot now assert that, because the names of Spain and

Portugalhave disappearedfromthe final version ofthe regulations, itwill neveragain be possible

to invoke the use of force against Spain and that the dispute raised by Spain nolonger exists. - 29 -

0 3 5 Moreover, what it did yesterday it can just as easily do again tomorrow, in other words, invoke

again to a rule which does not presuppose the intervention of its Parliament and under which

Spanish vessels willain be pursued onthe high seas irrespective of their flag. This reasoning is

completely erroneous. It is permitted by laws, as the laws have not been altOnly the rules

have been changed. As to the new draft Bill C-27, it still contemplates the use of force.

18. If we revert to the parameters which, accordingto theian Counter-Memorial, must

be used for the interpretation of a declaration and of its reservations, which "must be based upon

a natural and reasonable way of readingthe text" (p. 23, para. 46, pp. 25 et seq., paras. 54 et seq.),

still in the context of the principle of good faith (pp. 30-3 67-68), we must ask ourselves

the following questions.

Firstly, can it be assumedthat the penal provisions inCanadian law currently in force, which

permit the occasioningof death or serious bodily hm onthe high seas are included in the fishery

resources management measures, ifthetext is interpretedina literal natural and reasonable way and

in good faith?

Secondly, couldthese provisions be included in the fisheries conservation measures (not in

the euphemism of the phrase "enforcement measures") in accordance with any of the criteria of

interpretation used hitherto by the Court?

Thirdly, and this is at least as important as the previous two points, can the penal provisions

to which we refer be interpreted in accordance with a reasonable, logical and systematic legal

criterion such as the enforcement of fisheries management and conservationmeasures on the high

seas?

Spain is persuaded that the Court will never be ina position to reply in the affirmative to any

of these three questions. This is why the Canadian Counter-Memorial merely skates over the

question of the use of force or adds the new conceptual category which did not exist in its

reservations- of the "enforcement measures" or seeks, in its inaccuratepresentationof the facts, -30 -

to gloss over the force actually used against the Spanish vessels.the achillesheel of the

. - Canadian reservation whichthe opposing Party endeavoursto conceal.

- - 036 In point offactthere isjurisdiction rationemateriaeandthe Kingdom of Spainbrought this

matter before the Court at the outset. However, Canadahas hithertonot providedanyjustification
that the use of force and the possibility of causing deathordily harmto personsmay be

considered as fisheries resources management and protection measures, or as "enforcement

measures" ofsuch measures.

1sthere anyneedto recall hereArticle 73ofthe 1982UnitedNations Conventionon the Law

of the Sea, which does not even envisage, in the exclusiveeconomiczone, that the enforcemer)of

the laws and regulations ofthe riparian State includesprovisionssuch as those referredto above?

And that the sarneapplies to the Articles 87 to 90, 110, 111, 117 and 118of that Convention? 1s

there any need to recall here the legal rules which protect the safety of life on the high seas? No,
as we have not yetome to the merits of the case?

Lastly, a complete interpretation of its declaration must be made in accordance with

internationallawandnot exclusivelyinaccordancewith Canadiandomesticlaw. Thisinterpretation

must not be limited,as it suggests,to paragraphbut mustalsotake accountof the Canadian

declaration as a whole. There are provisions in the Canadian legislation whichdo not fa11within

the terms of its reservation to the declaration of acceptance of the compulsoryjurisdictio- of the

Court. Accordingly,the Court hasjurisdiction. There is evenanotherargumentforreaffirmingthe

jurisdiction ofthe Court: Canadian legislationas a whole, consideringthe absenceofa valid basis

and legal title, cannot be considered,properly speaking, as a measure, but as a simplefact, from
which important legal consequences may,flow with respect to third parties.

In 1994,Bill C-29 was not adopted inr to be appliedto any Spanishfishingvessel, and

aboveal1not to theEstai. The Bill is not coveredby the Canadianrese-vaandnever could

have been. The reservationdoes not apply to the Bileven if the reservation applied to the boarding of the Estai - which we totally reject -, the rese~ation would in no way exclude a

consideration ofthe Bill itself.

037 19. The continuing relevant facts in the present dispute do not end here; the history of

Canadiandomestic legislationdid not stop in 1994,but continuestoday througha number of bills

currently being prepared.

Indeed, Canada'shectic legislative activitysubsequentlyresulted in the presentation of Bill

C-62 ("Fisheries Act") (House of Commons of Canada, 2nd Session, 35th Legislature,

45 Elizabeth 11,1996,First Reading,3 October1996,pp. 17978et seq.) of 1996. In the first part

("Fisheries Protection andManagement"),there are a great number of similarprovisions to those

discussed above, to describe and analyse whichwould make my statementtoo long, complexand

verbose. 1wouldthereforeaskMembersof the Court toreadArticles 32to 41ofthe bill concerned

in extenso,the text of which will be found in the library of the Court. In these provisions, new

rules can be found which are just as serious relating to the extraterritorial application of that

country'scriminal law to zones on the high seas, as is the case of Articles 37 to 39.

However,the legislativeactivity oftheopposing Partydoesnot stopthere; indeed,atthe end

of 1997, not very long ago, the Bill C-27 was tabled before the Canadian Parliament ("Act to

amendthe CoastalFisheriesProtectionAct andthe CanadianMerchantNavyAct"), to replaceBill

C-96 (House of Commonsof Canada, 1st Session, 36th Legislature, 46Elizabeth II, 1997,

p. 90013). Surprisingly,thisbillispresentedasthe implementationin Canadiandomestic law,with

a view totheir applicationergaomnes,of the provisions ofthe UnitedNationsAgreement of 1995

Straddling FishStocks. Recently,moreover,the Canadianpressannouncedto usthat the Canadian

Parliament might soon approvethis Bill.

Once again, this Bill is of interest to Spain'sline of argument before the Court. Canada's

unspokendesireto give itselfa legalright to act onthe high seas is so greatthatit has no hesitation

in summoning up the said 1995Agreement on Straddling Fish Stocks; it endeavours to give its

domestic legislation a cloak of international legitimacy. 1am convincedthat the closescrutinyto which Membersof the Court will subjectthis Bill

relieves me of the need for any further comment; nonetheless 1would draw the attentionof the

Court to two specific aspects of the Bill. On the one hand, 1 would recall that at least two

requirementsmust be met for the provisionsof an internationaltreaty to be binding upon a State:

first,the treatymustbe in force; second,theate(s)to whichtheprovisionsareto be appliedmust

be States parties.In this case, neither condition has been met. Neither Canada nor Spain are

contracting States. On the other hand, there are still many provisions in the Canadian Bill C-27

which, together with those which are currently in force, involvethe use of forceby coast guards

on the highseas,as is apparent from readingArticles 6, 16and 18. These Articles are at variance J

withthe provisionsof Article 21oftheNew YorkAgreementof 1995, eventhoughthe Agreement

has not yetcome into force and even though Canada and Spainare not partiesto it.

20. It wouldseem that Canadacannot be content with beingthe countryhaving the longest

coastline in the world (over 244,000 km),bordering on three oceans, and havingan area of over

5 million squarekilometres within its 200-mile zone. It needs to increase itsjurisdiction overthe

high seas, ever more so each day, and makes use of its criminal lawto this end, includingthe use

of force. This is in no way a measure of conservationor management, nor isitthe enforcement

of measures to conserve resources.

In no way. These measures are designed for the high seas, beyond andwithin the NAFO -

area. The situationrecalls another,very similar one, which occurred 25 years ago when Iceland

unilaterally extended its jurisdiction forery purposes to maritime areas adjacent to its coast

which at the time were consideredto be the high seas.The case currently before the Court is

almost identical.

IntheFisheriesJurisdiction(UnitedKingdomv.Iceland)case,SirGeraldFitzmauricestated:

"agreed measures of conservationon the highseas for the preservation of common
fisheries in which al1have a right to participate, is of course a completely different

matter froma unilateral claim by a coastal Stateto prevent fishing by foreign vessels
, . entirely, or to allow it only at the will and under the control of that State. The
question of conservation has therefore no relevance to the jurisdictional issue now
'-. before the Court, which involves its competence to adjudicate upon a dispute occasioned by Iceland's claim unilaterally to assert exclusivejurisdiction for fishery
purposes up to a distance of 50nautical miles and around her coasts." (I.C.J.Reports
1973, pp. 26-27.)

The affirmation advanced by Judge Fitzmaurice in his separate opinion of 1973 is perfectly

applicable to thejurisdiction and to the merits in the present case.

Fortunately, the international law of the sea has not changed since then with regard to the

legal régime governing the high seas. Moreover, the distinction made by

Judge Fitzmaurice - between conservation measures for fisheries on the high seas and the legal

entitlement of a State to act unilaterally in theaid area, riding roughshod over the rights of other

States - appears to my country, which 1 have the honour to represent here, to be not only

impeccable but also and above al1definitive. Indeed, the Canadian legislation is designed to be

applied on the high seas in general, in three oceans, and not merely in that part of the high seas

which is considered to be or designated the NAFO area.

The only alleged Canadian entitlement is unilateral, but not international. Its domestic

legislation is not binding on other States if it is not in conformity with intemational law. Nor is

the policy behind it one which can be invoked against other States - the old policy of the

gun-boat. Inthis respect, let usagainrecallthat what we havejust saidderives from paragraph 2(c)

of its declaration. As the other Party expressly recognizes, the questions which fall exclusively

within the jurisdiction of Canada must be classed as such "by international law", not by domestic

law.

In conclusion,Mr. President, Members of the Court, Canada'sreservation does not cover al1

the facts which 1have mentioned in my statement, neither ratione materiae, nor ratione loci. For

Spain,the facts are clear and unarnbiguous,as the Court will see for itself. This assertion will be

corroborated immediatelyby mycolleagues,counselfor Spain,Messrs.Remiro, Highet andDupuy.

Mr. President, Members of the Court, this brings me to the end of my statement for this

moming. Thankyou for your kind attention. Mr. President, may 1ask you to give the floorto my

colleague Mr. Remiro Brotons?- - 040 Le PRESIDENT :Je vous remercie, Professeur Sanchez. Je donnela parole au Professeur

Remiro Brotons.

Mr. REMIRO BROTONS: Mr. President, Members of the Court,

1. The dispute between Spain and Canada is extant and has not been resolved

1. In the presentcasetheRespondent claimsthat the legaldisputebetween SpainandCanada

has been settled since the filing of the Application, implyingthat the Spanish submissions are

henceforth mootandthat, in the absenceof any dispute, the Court hasnojurisdiction'. This is not

so. Canada mixes up the dispute,the Applicant andthe object of the Application with the intent
J

of confusingthejudges. The legaldisputebetweenSpainand Canadais areal one; the submissions

contained in the Application areill valid; the Court must make a finding on these submissions

if it respects its raison d'être.

2. Spain has not come before the Court to speak of the conservation and management of

fisheries. Spain is hereto speak of sovereignty,the foremost,traditionalprinciple of intemational

law, a principle of order which is also a democratic principle, one which is recognized in

internationalrelations when a Stateobservestherms and CO-operateswith other States in order

to resolve their shared problems.day Spain isone of those States. Thus, when its exclusive

jurisdiction over ships flying its flag on the high seas is disregardedand swept aside by anotherW

State whicheven resortsto force,Spaindeemsthat ithas the ri-htas indeed ithas- to request

the protection of the Court, so that the Court may recognize the facts, may establish the

responsibility of the offending Party, may assess the consequences for the purposes of

compensation,and may orderthe Pariyresponsibleto cease and desistfiom the unlawfulact. The

disputebetween Spainand Canadaandthe object ofSpain'sApplicationthereforeconcemthe most

traditional strands of internationallaw. The wording of the Applicationis simple; its content is

fundamental; its settlement is of vital importance.

'See Counter-Memoriaolf Can, hap.IV, paras.204-207. - 35 -

3. Thereis a dispute between Spain andCanada arisingfromthe entry into force of Act C-29

and amendments to Canada's Criminal Code. A disputewhichtook concrete form in the inspection

of the Estai and the harassment of other ships flying the Spanish flag in the NAFO Regulatory

Area, beyond Canada's exclusive economic zone. A dispute which remains extant since the

Respondent has not only made no effort whatsoever to compensate the victim and to pay an

indemnity for the damage caused but moreover persists in keeping in force the legislation which

makes the continuous intemationally wrongful act possible. Thus a sword of Damocles remains

suspended above the Spanish ships.

4. The civilized manner in which the Application has been submitted, faced with conduct

which may indeedbe described as barbarous,must not be confused with an abandonmentof rights

or a lack of interest in Ourcountry'slegitimate defence before the Court. The apparent normality

of Hispano-Canadian relations has neither extinguished the dispute nor rendered the Application

moot. Spain does not waive its claims, claims which could not be more legitimate: the claim for

confirmation of its sovereign right to have its flag respected on the high seas, the claim for

satisfaction beforethe Court by a findingthat Canada hasbreached international law, the claim that

Canada be obliged to guarantee that the breaches complained of will not recur.

5. Can such a dispute fade away, be whisked away as if by magic, vanishing into the mists

of a parallel, concurrent dispute conceming the conservation and management of fisheries in the

NAFO Regulatory Area? Of course not. There is a further dispute between Canada and the

European Community but it is quite separate fi-omthe dispute between Spain and Canada.

II. TheCanada-EuropeanCommunityAgreementofApril1995 doesnotpreventtheCourt
from exercising ib judicial functionin the dispute between Spainand Canada

6. Canada acknouledges that there was a dispute between itself and Spain at the outset but

holds that the events which have occurred since 28 March 1995 (the date on which Spain's

Application was filed)have radically changedthe situation,that the dispute has been resolved and

that Spain's Application is henceforth moot.. .
7. The events referred to in the Canadian Counter-Memorial are however limited to the
042
- - Canada-EuropeanCommunity Agreementof April 19952. TheAgreement,it was said, "settledal1

the elements of the dispute that Spainhas broughtbefore the Courtw3.

8. This isan erroneousapproachand consequentlythe conclusionswhichmay bedrawnfrom

it are also erroneous. Spain does not question that the Agreement of April 1995resolved some

aspectsof a disputebetween Canadaand the Community causedby Canada'sunilateralaction on

fisheries in an area of the high seas which is subject to regulation by an

organization- NAFO - towhichthe Communityand Canadabothbelong. Nonetheless,Canada

deliberatelymixesupthe dispute between itselfand the Communityand the dispute betweenitself

and Spain,without even attemptingto refute the arguments already submittedon this head in the

Memorial of Spain4.

9. Spain does not claim to rely upon the status of a third State in relation to the

Canada-EuropeanCommunityAgreement (resinteralios acta)inorderto distinguishbetweentwo

disputes. As a member State of the European Community, Spain followed the negotiationof the

agreementandvotedwithin the Councilto signand consent to it, inthe firmbeliefthat multilateral

CO-operationis the appropriate method of resolvingtheserious problems of the conservationand

management of what are called straddlingJish stocks5 and because such powers have been

transferredto the Communityby its member States6. Quite simply,the Agreementhas one object w

and the Application another, being founded on a title specific to Spain.

2See the instrumentsconcerningthe Agreementin the Memorial of Spain, Anns., Vo1,No. 24;
Counter-Memoriaolf Canada,Anns.,Ann.37.

'SeeCounter-Memoriaolf Canad, ara.209. Seealsopara.214.

4See Memorialof Spain, Chap.II, Sect. IX, para.22, and Chap.IV, Sect.II, paras.173-176(particularly
paras.175-176).

'Stocksofishwhichmovearoundbothwithinandbeyondexclusiveeconomiczones.

'SeeMemorialof Spain,paras.21 and176. 10. This bringsus to the crux of the matter. Canada is obligedto assert that the Agreement
. - 043

of April 1995- an agreement on the conservation and management of fisheries - has resolved

itsdispute with Spain. Were this not so,the reservationto its acceptanceofthe Court'sjurisdiction

contained in paragraph2 (4 of its declaration wouldbe inoperativeinthis case. The scopeof the

Canadianreservationcoincideswith that relating to the conservationandmanagement of fisheries.

The scope of the Canadian reservation coincides with the scope of the powers on fisheries

transferred to the Communityby its member States. However if Spainis correct, namely ifthere

is a dispute whose subject-matter is not the conservation and management of fisheries, both of

Canada'sobjectionsto the jurisdiction of the Court collapse simultaneously.

11. Ifhowever,as Canadaasserts,theAgreementofApril 1995resolved everything, howcan -

we explain the fact that the Community institutions, so touchy on the subject of their powers and

alwaysreadyto controlthe initiativesof memberStateswhich interfereinthe Community'sextemal

relations, have filed no complaint against Spain before the European Court of Justice in

Luxembourg, on the grounds that Spain has exceededits powers? How are we to interpret the

passivity ofthe Commission,which negotiatedthe Agreement,andoftheCouncil, whichapproved

it, faced with the initiative of a member State preparedto go beyondthe obligations assumed by

the Community in conformity with rule-making powers which are now exclusive powers? Quite

simplybecausethe disputebetween SpainandCanadaconcernsanother issue,the expressionof the

sovereignrights of States,which have not been transferredto the Community. The memberStates

of the European Community have not surrendered their flags. Spain, like France, the United

Kingdom,Germany,Italyand al1the othercountriesbelongingto theCommunity, retainsexclusive

jurisdiction over vesselsflying its flag. Canada is awareof this. TheRegulatio3oMarch 1995

did not target vessels flying a non-existent Community flag, but vessels flying the Spanish and

Portugueseflags. IftheCourt allows itselfto be persuadedthat the disputerelating to thesovereign

right of a State to exclusivejurisdiction over vesselsng its flag on the high seas is subsumed

in a dispute on the conservation and management of fisheries on the groundsthat it is a Member -38 -
of the European Community,not only would the Spanish flagbe reduced to nothing but alsothe

flagsof al1the othermemberStatesof the Community. The Courtwoulddo federal Europea good

turn, but this would becomedifficultto understandin the contextof the constituent powerandthe
0 4 4 .
institutionsof the Community. It is not for the InternationalCourt of Justice to curtail the powers

of the member States of the European Community.

12.Let us not forget that the Agreement of April 1995 is not areement, Le., an

agreement involving both Community powers and national powers and signed not only by the

Community in its own right but also by its member States. The latter, the member States, guard

their powersjealously. They would never allow the Communityto give a binding international
w
undertaking in fields which are not within its pryou may be sure of that!wever, 1

notethat no member Stateofthe Communityhaschallengedthe lawfulnessofthe Agreementwith

Canada of April 1995. If al1accepted it without problem, it was indeed because there was no

encroachment upon their respective national powers.

13.In conclusion,the Agreement provesthat there is somethingf there is something

else -as indeed there -sit remains outside the scope of the Agreement and, without doubt,

outside the scope of the Canadian reservation to the Court'sjurisdiction7.

14. Spain was not and is not a direct party to a dispute with Canada over the enforcement

of measures for the conservation and management offisheries. In any event, it must be -ecalled

that under paragraph D.l of the agreed minute described by Canada as the main document

comprisingthe Agreementof April 1995',the parties maintainedtheir respectivepositions on the

conformityofCanadian legislationwith customary internationallaw and the NAFO Convention;

the paragraph addsthat under the said document "noth...shall prejudice their ability to

preserve andefend their rights in conformity with internat. ."9.law

'See MemoriaSpainpara.176.
*SeCounter-Mernoolf Canada,para.210.

Tootnote applitoFrenchtextonly.045 15. Weresuchareservationofrights - andconsequentlythecontinuedexistence ofthe legal

dispute between the Community and Canada, tackled but not settled by the Agreement - to be

expressly recognized, should not the reservation which affects Spain directly be recognizedl1the

more? In no case could the Canada-European Community Agreement have disposed of the rights

of Spain as a sovereign State in its own fields of jurisdiction.

16. Canada persists in converting the regulatory areas for fishing on the high seas into

theatres of pursuit; in view of the harassment and aggressiveness shown by the Canadian

coastguards and patrol boats, as my colleague Mr. Sanchez Rodriguez told the Court, the Spanish

Government has had to send armed units into the NAFO Regulatory Area in order to protect and

safeguard Spanishvessels and fishermen; al1this has been communicated to the Secretay-General

of the United Nations". Canada has awarded itselfthe option of using force in order to imposeits

jurisdiction over vessels flying a foreign flag on the high seas and over their crews and it is

precisely on that point that the disputetween Canadaand Spain arises. It is not a dispute which

may be termed a green one, even less a bIueone. Canada is not entitled to hum and haw overthe

subject-matter of its dispute with Spain in order to bring it under the umbrella of a reservation to

the acceptance of the Court'sjurisdiction.

III. The object of the Spanish Application: (1) Cessation of and compensation for the
unlawful act

17. The Estaiincident led Spain to file an applicationbefore the Court and at the sametime

made it necessary to negotiatethe agreement betweenthe European Community and Canada. It is

hardly surprisingthat several disputes have emerged from the same facts. In political terms, itwas

logical for the Agreement to be subject to'the withdrawalof the accusation against the vesse1and

itsmaster, to the refunding of the bond and bail, and to the return of the confiscated catch. The

Agreement was even supposed to allow proceedings beforethe Court to take place in terms devoid

''%etterfromthe Permanent Representativeof Spainto the United Nations, dated31 March 1995. Reproduced
in the Bulletin onthe Lawthe SeaUnited Nations, Officefor OceanAffairs and the Law of theSeap.23.28, - 40 -

of undesirableattention. From that point ofview the Agreementdid mean, at the time, that Spain

was not obliged to requestthe Courtto adoptprovisionalmeasures. However, itcannotinanyway
. - 0 46
be claimed that there is no longer a dispute between Spainand Canada or that the elementsof the

dispute, detailed in Spain's Application,have been substantiallyanged".

18. Canada mustnot distract the attention of the Court by referring to the action instituted

by the owner and master of the Estai against the Canadian Govemment in the federal courtsin

orderto brandishthe rule of the prior exhaustionof local remediesin opposingthe claimcontained

in submission (B) of Spain'sAppli~ation'~.

19. At the moment Spain is not exercising diplomatic protection for its nationals who are J

victims of an unlawfulact on the part of Canada; itis defendinganother sovereign right,a direct

right which belongsto the State,the rightforvessels flyingits flagto enjoythe freedom ofthe high

seas under its exclusivejurisdiction within the framework of Spain's internationalobligation,13a

right which has been infringed by Canada.

20. In fact, Spain'sApplication beforethe Court hasbeen presented as a consequenceofthe

breach by Canada of international obligations concerning Spaindirectly. Spain has exclusive

jurisdiction over vessels flying its flag on the high seas. Canada has violated this right, usurping

Spain's jurisdiction by duress and by the use of force. In retum Spain demands satisfaction:

namely a finding by the Court that there has been a violation of internationalw. Furthermore ri.

Spain asks for darnages arising from the said violation. However its Application does not stop

there.

"See Memorialof Spain, par174-175.

IZSeeCounter-Memorialof Canada,para.224. Submission(B)of the Spanish Applicationrequests: "thatthe
Court adjudgeanddeclarethat Canada isboundto refrainfrom any repetitionof theacts complainedof, and toofferto
the Kingdomof Spain thereparationthat is due, in the form of an indemnitythe amountof whrl1thest covea
damagesand injuries occasioned".

I3SeeMemorialof Spain,par181. -41 -

IV. Object of the Spanish request: (2) that the unlawful act should not be repeated

21. Even without the Estai incident, the dispute wouldexist. That incidentis basicallyjust

a symptom of a much larger dispute, which has in no sense been settled. As regards its past

conduct, Canada has failed to demonstrate any willingness whatever to recognize and make

O 4 7 reparation for its errors. As far as the füture is concerned, it has equallygiven no sign of any

intention ofchanging its ways. There is no guaranteethat its coastguardsand patrol-boats will not

againbe instructedby their govemmentto useforceagainst Spanish vesselsandtheir crewson the

high seas. They did so before, and were congratulatedon their actions: in 1996the members of

theGreenland HalibutTaskForcewere awardedthe Prix de l'ExcellenceenPolitiqueExtérieure

fortheirdefenceof CanadianinterestsbeyondtheexclusiveeconomiczoneI4.It isthusto be feared

that they will oncegain seek to eam their patriotic spurs!

22. The fact that theesof Spain (andPortugal)have been removedfromthe regulations

listingthe States whosevessels are subject to BillC-29 in no way affectsconclusionain's

~pplication". Canada has never acknowledgedthat it acted in violation of internationallaw. The

domestic legislation which enabledCanada to committhe internationalviolations of which Spain

complains- Bill C-29- is still in force, as are the amendments to the Penal Code; Canada

appliesthat legislationto vesselsflyingother flagsand itwouldonlyrequirea strictlygovemmental

decisionfor it to start applying it againto Spanishvessels (or to those of other nationalities). It is

opento Canadato reintroduce, at anytime, the regulationsof 3 March 1995,or any other measure

capable of producing similar effects. It has given no undertaking not to do so.

23. The Canada-European Community Agreement does not denote an unconditional and

irrevocable commitment on Canada'spart which would prevent itom repeating any attempt to

exercisejurisdiction, including ifssary a resortto force, over foreign vessels and their crews

I5SeeCanadian Counter-Memorial,para. 217.ion(A) of Spain'sApplication requests: "that the Court
declarethat the legislationof Canada, in sofar as it claimsto exercise ajurisdiction overships flyinga foreignflag on
the highas, outside the exclusiveeconomiczone of Canada,is not opposableto the Kingdomof Spain". - 42 -

on the high seas. It should be recalled that the secondparagraph of SectionC (1) of the Agreed

Minute betweenCanada and the European Communitydoes not speciS, the effects, consequences

or sanctions which would follow any reinsertion by Canada of vessels from any European

CommuniS Member State into its legislationwhich subjectsvesselson the high seas to Canadian

048
jurisdiction; onthe contrary,it limits itselfto notingthat "(it)will beconsideredas a breachof this

Agreed Minute"16.No more than that. A statement of the obvious.

24. Canada seeksto trivializethe Court'sdecisionwhen itStatesthat: "Whatmight or might

nothappen inthe future is speculative",or that "the Courtcannotrenderjudgmenton a speculative

25. We are not concerned herewith speculationor hypotheticalevents. Canadacontinuesto

arrogateto itself the right to use force and to exercisejurisdiction unilaterallyover vessels on the

high seas flying a flag other than its own. This is moreover a long-standingtendency on its part,

whichit had already demonstratedin 1970whenit adoptedthe Arctic Waters Pollution Prevention

Act. Its aspirations to the leadership of an oceanic policy" certainly have not involved any

renunciation ofthe right to resort to the "big stick"as an instrumentof diplomacywhen others are

not in agreement with its views. The Canadian draft Bill C-27, which is intendedto amend Bill

(2-29,and to which Professor Sanchez Rodriguez hasalready alluded in his oral argument, retains

unchanged those provisionswhich allow it to resortto force on the high seasagainstvessels flying .J

aforeignflag. Orat least itdid sountil lastyear. This proposed legislationunequivocallyconfirms

Canada'scontinuing intentionto usurp itsjurisdiction on the high seas andto resort to force where

necessary to render that jurisdiction effective. In these circumstances the Court will readily

appreciatethe interest and object of an application which seeks a ruling calculated to lead to the

cessationof a process of disruptive change fostered by continuing unlawful action and the resort

to force. Canada'sconduct inclines one to the belief that it isimply waiting for the Court to

I6[0riginalEnglishof citation.]
I7SeeCanadianCounter-Memorial,ara.219 [originalEnglish text].
I8SeeCanadianCounter-Memorial,ara.220, note301 infine. - 43-

declare itself incompetent in order to pursue its policy founded on unilateral extra-territorial

jurisdiction and a readiness to use force, withal1the risks and threats which that poses for the

international order.

26. When al1is said and done, Canada tells you that the dispute is settled, yet it has not
049

sought to make honourable arnends or to undertake not to act in this way again. Al1it can offer

is speculation that the new NAFO control measures will render any use of force on its part

unnecessary.

27. A Statewhichhas sufferedinjury isentitledto reparationfromthe State which committed

the unlawful act; but not only to reparation. The injured State must also be given assurances or

guarantees that the act will not be repeated. And such a provision is accordingly included in the

drafi proposal of the International Law Commission on State Responsibility. Thus Article 46 not

only emphasizes the need for these where there is a risk that the act may be repeated, but also

makes it clear that their function is preventive rather than reparative. Tothis end, according to the

Commission,the injured State may, interalia, request the Statewhich committed the unlawful act

to adopt a specific mode of conduct considered apt to avoid the creation of conditions like those

which allowed the unlawful act to occur; such conduct may, for exarnple, consist in the adoption

or amendment by that State of specific legi~lation'~.

V. The Court must exercise its judicial function

28. In a case likethe presentone ajudgment by the Court declaringthat Canada has no legal

right to exercise jurisdiction or use force on the high seas against vessels flying a foreign

flag - specifically the Spanish flag -would have a preventive and pacifjing effect, particularly

in the case of a Respondent with a democratic constitutional system.

I9SeeReport of the International Law Commisshe work of its fom-fifth session,commentson whatwas
then Article lObis of the draft proposal. -44 -

29. There has been talk of putting the cart before the horse. But it is surely Canadawhich

is putting the cart before the horse when it relies on certain decisions of the Coud0 in the belief

that it need onlycite them in order to demonstratethat Spain's Application hasbecome devoidof
.
purpose, without establishing the necessary premisesto support this.
. .

- - 050 30. Thosepremisesrequire that it be provedthatthere is currentlynodispute between Spain

and Canada. The NorthernCameroonsdecision does not constitute a relevantprecedent. In that

casethe Applicantrecognizedthat through its claimitwas in a sense seekinghistorical satisfaction,

looking entirely to the past. The Court accordinglytook the view that it could not rule on the

Application, because its Judgment must have some practical consequencesin the sense that it can
1

affect existing rights or obligations of the parties, thus removing uncertainty from their legal

relations. By contrast, in the present case what is at issue is the protection ofthe existing rights

of Spain andtheir guaranteefor the future. Spainis notseekingto upholda distant, abstractclaim;

it has a legitimate, quite specific, legal interest. It seeks recognition of its right to exercise

exclusivesovereigntyovervessels flyingits flag onthe high seas,condemnationof the partywhich

usurped those rights by resorting to the use of force, and appropriate reparation for the past, the

present and the future.

31.Nor do the decisions in theNuclear Testscasesconstituterelevantprecedents. Quitethe

contrary. In those casesthe Respondenthad made declarationsat the highestlevel - whichwere

interpretedby the Court as legally bindingcommitments - in which it undertook notto cany out

any atmosphericnucleartests in the future, and it wasthose tests whose cessationthe Application

had sought to obtain. But, Mr. President, 1ask you this: Wherethen is Canada'sdeclaration, in

which it Statesits willingness never again to resort to the use of force on the high seas against

vessels flying a foreign flag, and in particular Spanishvessels? Where is the reparation for the

unlawfulactsalreadycarriedout?Whereisthegesture- the leastsign - ofarapprochementwith 6

2SeeCanadianCounter-Mernorial,NorthernCameroom,notes282, 284 (separate opinionof JudgeFitunaurice),
296, 304,305 and 307; NuclearTests, notes 283, 284, 285, 296,297 and 308. - 45 -

the Applicant? Could the Court now guarantee that Canada's actions subsequent to the Estai

incident imply that she has assumed an obligation that there will be no repetition? That would

partially settie the problem, particularly if the Applicant were to be recognizedas havingthe right,

likeAustralia and New Zealand in 1974,to request the Courtto examine the situation in the event

that such an obligation was not respected. In the NuclearTestscases the claims no longer had any

object because the tests had ceased; in the present case, the claim does have an object, given that

there are still vessels flying various flags within the NAFO zone, where Canada continuesto have

an enforcement scheme in place.

32. We do not, however, merely seek here a judicial declaration as to the unlawfulness of

Canada'slegislation and actions. It is also Ourconcern thatthe Court shouldorder the Respondent

to conduct itself in a lawful manner in the future, that is to Say that the Court should render a

judgment normative rather than declaratory in character, in accordance with the distinction

established by the Court itself in its recent decision of 25 September in the case conceming

GabCikovo-Nagvmaros Project (H~ngary/Slovakia)~'.

VI. Final considerations and conclusion

33. In the light of recent history, it is difficult not to see, in the pretext put fonvard by

Canada that it is acting with a view to the management and conservation of fisheries beyond its

exclusive economiczone, a cover for a different agenda: namely a claim to the unilateralexercise

of exclusive penaljurisdiction over still wider areas. The high seas have already suffered grievous

insult,but if we allow Canada - ortomorrow some othercountry - to go on as she is doing,then

they will continue to shrink like the glove in the Peau de Chagrin until there is nothing left of

them. What we are really dealing with here is an extension of sovereignty at the expense of

international watersby means ofthreats andtheuse of force - where thecircumstances sorequire.

It represents a defeat or retreat from peaceful CO-operationwith a view to the achievement of

21
See paras130-131. -46-

commonobjectivesorshared interests. The objectof Spain'sApplicationisspecifictothat country,

for it is her ships which are affected,but it concemsthe interests of al1other States.

34. The use of force on the high seas against vessels flyingthe flag of another State is an

unlawfulact and cannot,on any pretext,be consideredas a measureof fisheriesmanagement or of

executionof a measureof fisheriesmanagementor conservation. Caligulamay haveappointedhis

horse Incitatus consul of Rome, but he not make the animal rule the city in reality. You
0 5 2 cannot use language to change the nature of reality. If a border guard fires on an individual

attemptingto cross thefrontier line,fence orwallwithout papers,is that act toand regarded -

justified as a measure of management and conservation of border security?
-
35. The manner inwhich an issue is characterized must be proportional, and show proper

respectfor the scale of values. The primary values cannot be ignored for the sake of secondary

objectives. Ifa Stateudescommercialdisputesfiom the Court'sjurisdiction, willthe latterthen

refuseto rule uponanapplicationconcerningtheexploitationofchildren,on thepretextthat "social

dumping" is a commercial issue?

36. No thinking person can accept that a State which threatens and usesforce on the high

seas against a ship flyingthe flag of another Statecan seek to opposethe declarationrequested of

the Court in this regard on theally inadequate pretext that the issue is one of fisheries

managementandconservation. InitsMemorial,SpainrnedthatCanada'sunlawfulactswerepart 1
of a policy which, if allowed to continue, would provoke further violent incidents. It is surely

desirablethat we should not find ourselves faced, inthe maritime context, with events similar to

thosesad occurrencesa few years ago in the fieldof aviation whichobliged the signatories of the

ICA0 Convention - meeting, pertinently enough, in Montreto add a protocol to that

Convention insertinga new Article 3bis, which laid down an absolute prohibition on the use of

force against civil aircraft, not internationalairspace but also in that of individual States.

37. The currentphase of the proceedingsinstituted followingSpain's Application concems

the Court'sjurisdiction. However,asion onthis issue involvesa finding that there stili exists - 47 -

a disputebetween the Parties. According to the Respondent,there was a dispute but it has ceased

to exist. In the Applicant's viewthis approach is fundamentally flawed, for it is based on a

conceptual error. If there was a dispute between the Applicant - Spain - and the Respondent,

Canada, it could in no sense have been with regard to the execution of measures of fisheries

management and conservation. In this area Spain is ready to go further than Canada: at the

individual level, there hasnever been any bilateral dispute between Spain and Canada over the

management and conservation of fisheries. Such a dispute has manifested itself at the regional

level,between the EuropeanCommunity and Canadawithin the NAFO structures. And here 1pose

n53
a question, Mr. President: ifCanada is so convinced that the Agreement with the Community of

April 1995 has deprived the Spanish Application of any object, why, then, does it not dispute

Spain'slocus standi? No, Mr. President, Members of the Court! The bilateral dispute between

SpainandCanada is of an altogether different nature. Hence,Spain not only has the rightto bring

proceedings but, further, the Canadian reservation to the Court'sjurisdiction is irrelevant to this

case. In logic, you cannot on the one hand assert that there exists a dispute between Spain and

Canada and then deny jurisdiction on the basis of paragraph 2 (4 of the Declaration filed by

Canada on 10 May 1994.

38. In the Lortlscase the Court stated: 'Y11that can be required of a State is that it should

not overstep the limirswhich internationallawplaces uponitsjurisdictiontR2(emphasis added).

In the present case.here is the right that canjustifi Canada'sexercise ofjurisdiction on the high

seas - aggravated by the use of force - against vessels flying the Spanish flag and their crews?

Whatwill remain of the notion oforder if the modest and minimal claim put forward here can be

disregarded with irnpuniv? Spain has every right to require that this Court rule upon the issue of

respectfor the international limitsof territorialjurisdiction and inthis regard it wouldbe absurdto

taketheview that onemight dissuadethe Court from exercising itsjudicial fûnctionby brandishing

a distorted image of fisheries management and conservation.

22~eeP.C.I.J.Reports.SerA.sNo.10,p. 19.[Englistext]. - 48-

39. The Canada-European Community Agreement ofApril 1995most definitelydid not put

an end to the dispute between Spain and Canada, nor did it render a the Courtdevoid of

objector diminishits relevance. Spain'sApplicationconcemedwithfishing onthehigh seas,

nor with the management and conservation of biologicalresources within the NAFO zone. The

objectofthe Applicationrelates essentiallyto Canada's rightin general,andin particularinrelation

to Spain,to exercise itsjurisdiction on the high seas againstships flyingthe Spanishflag and their

crews, and to enforce that right by using armed force. In Spain'sview, Canada doesnot possess

O 5 4 such a right, and the threats and use of force in which Canada has alreadyengaged and claims to

be entitled to continueto engage do not accord with intemational lawor with the UnitedNations
w
Charter.

40. It follows that, if the dispute has not been settledand the Application continuesto have

an object, the Court must exercise itsons, for the issue ofjurisdiction is a matterof law not

of desirability. If the Court to act, that would not only result in a denial ofjustice as far as

Spain is concemed, but would also encourage a policy of intimidatifaitaccompli and of

the unilateral use of force in the service of the interests of the strongest. In this case, fisheries

management and conservationare the setting; what is at stake is respect for the fundamental

principles of a peaceful order founded on co-operation in relations between States. It is for this

reason that many look to the Court today.

Mr. President,Membersof theCourt,this bringsmeto the endofmy submissionconcerning

the persistence of the dispute between Spain and Canada. If you so wish,nowready to

commencemy argumentonthe principlesgovemingthe Court'sjurisdiction, which arerelevant to

this case.

LePRESIDENT :Monsieurleprofesseur, pourquoinecontinuez-vouspasjusqu'à13 heures. * Mr. REMIRO BROTONS:

1.Jurisdiction of the Court: principles

Mr. President, Members of the Court.

1. Spain will argue that the Court does have jurisdiction to entertain the Application filed

againstCanada becausethe dispute in question falls within the scope ofthe jurisdiction recognized

by the Parties under Article 36, paragraph 2, of the Statute. The Respondent affirms the opposite

and argues that the facts giving it grounds to act lie in the enforcement of the measures for the

conservation and management of fisheries adopted by Canada in the NAFO Regulatory Area, and

therefore fa11within the terms of the reservation of 10May 1994to its declaration of acceptance

of the Court'sjuri~diction~~.

055 2. According to Canada, Spain's interpretations violate the fundarnental principles of

interpretation on al1c~unts~~.Nothing is further from the tnith. Spain on the other hand, like

Canada, believes that jurisdiction must be based on a genuine consent, although the adjective is

redundant; it also believes that consent can never be presumed, that optional clause declarations

must be interpreted in a natural and reasonable way, giving full effect to the intention of the

declaring State, that interpretation should be guided by the principle of good faith and that

reservations are, of course,integral parts of an optional clause declaration. Nevertheless, on the

basis of these principles, the Applicant is not prepared to follow the Respondent along a path

littered with traps and inconsistencies.

3. Indeed, Canada invokesthe indivisibilityof the declaration,whereas inreality it interprets

the reservation as a separate document; Canada transforms the strictassessrnent of consent into a

presumption againstthejurisdiction acceptedinprinciple bythe parties; Canadarejectsarestrictive

interpretation of the declarationfor the sole purpose of promoting unlimited permissiveness in the

interpretation of the reservation; Canada makes no distinction between the effectiveness of the

23~eeCounter-Memorialof Canada, para.6.
24~eeCounter-Mernorialof Canada,para.203. -50 -

declaration and the effectiveness of the reservation,or between the effectiveness of the reservation

and its usefulness for circumventingthejurisdiction of the Court; Canada invokes good faith,but

it does so in vain as it uses good faith to undermine the fundamental nom - the golden

rule - goveming interpretation of an international legaltext,to whichwe shall refer later; Canada

claimsto be seekingthe real intention of the declarant and finds it in the unconditional acceptance

of its own points of view; Canada makes a distinction between the intention and the terms of the

declaration; it even breaks down the sentence which gives meaning to those terms, thus in fact

amending its reservation.

056 4. In the circumstances, my statement,which will be followed by those of Professors Highet *

and Dupuy, will be confined to establishing principles and drawing the conclusionsapplicable to

the declarations of Statesnder the so-called optional clause, including the Canadian declaration.

II. Indivisibility of the declaration and effectiveness

5. The declaration and the reservation form part of one and the same instrumentwhich must

be interpreted in comprehensive terms. To be more precise, we could - and should - Saythat

the reservation constitutes a part of the declaration. However, after having acknowledged the

indivisibility ofhe instr~ment~~,Canada concludes by replacing the principle - which is the

acceptance of the Court's jurisdiction- with the reservation, which is an exception to such
v

jurisdiction, although its declarationemphasizes this exceptionalcharacter by sayingthat it accepts

as compulsory ips oacto the jurisdiction of the Court over "al1dispute. . other than .. ."26

6. The dissociation between the declaration and the reservation becomes clear when Canada

calls for a high standardf proof of consent tojurisdiction or concems itself with the principle of

effectiveness.

"~ee Counter-Mcrnorialof Canada,paras. 72-75.
2See MemorialoftheKingdomof Spain, par10. - 51 -

7. Canada asserts that there is a high standard of proof that consent has been given2',while

at the sametime it rejects as a narrowly technical exercise in semantics any analysis which, in its

view, would fail to reflect the full import of the languageused and the underlying intention of the

declaring State2'. The Respondentwould therefore have usacknowledgethatwe must be restrictive

in the interpretation of the declaration but permissive in interpreting the resewations, despite the

rhetorical assertion that they are indivisible.

8.This line of reasoning becomes even more clear when it is claimedthatthere isno doctrine

of restrictive interpretationof resewations to optional clausede~larations~~.However, despite what

Canada asserts by simplifying what it calls the Spanish argumen?O,Spain has never proposed a

restrictive interpretation of the resewations. The criteria of interpretation are not, in themselves,

either restrictive or expansive; at the very most, it is the results of their application that may be

so.

9. According to Canada, the fact of taking the Spanish thesis into consideration would

encourage States "to draft their reservations in far more sweeping terms than would othenvise be

necessary, and would therefore undermine the ultimate goal of strengthening the optional clause

stem"^ 'anada therefore now proposes, implicitly, that we be broad-minded in interpretingthe

reservations in order that their wording may be modest. This is a far cry fromjudicial reasoning.

Spain does not think that these methods in respect of the declarationare the best way of settingthe

Court'sjurisdiction on a firm basis. At al1events, Spainencourages precision. While we have lefi

States a great deal of freedom in formulatingresewations to their declarationsof acceptance of the

Court'sjurisdiction, it is logical to expect them to exercise it judiciously by stating as clearly as

possible what disputes are excluded from the jurisdiction of this Court.

27~eeCounter-Memoria olf Canada,paras.76-81.

28~eeCounter-Mernorioal Canada, para7.5.
29~eeCounter-Mernorioal Canada,paras.190-201.
30~eeCounter-Mernorioal Canada,para.192.
31~eeCounter-Memoria olf Canada, para1.98. InFrenc"à rtdiger leurs réserveens termesbeaucoupplus
gtnérauxqu'ilne le seraitautrementnécessaiet, parconséquentn,uiraià l'objectif ulti,ui est de renforcerle
systèmede laclausefacultative". -52 -

10. As regardsthe doctrine of usefuleffect, the problem lies inthe fact that Canadaforgets

the declaration asuchto concern itselfsolelywith the reservation; it omitsthat the startingpoint

is the useful effect of the declaration and confuses the useful effect of the reservation with its

acceptance on accountof the mere fact of its being reliedon by the Respondent. Canada is of

course still solelythinking of its reservation, which has tobe profitable (usefuleffect) to avoidthe

jurisdiction of the Court in this case.

11. Ontheotherhand, Spainconsidersthattheusefuleffectofthereservationcannotsmother

that of the declarationconceived for acceptanceof thejurisdiction of the Court, which is its object

and purpose. In thisregard, the Spanishthesis considersthat reservationsmust be giventhe most
*

limited scope permittedby their interpretationin accordancewith the generalrules underlyingthe

exegeticaloperation. Spain considersthat this point of viewnot onlyisnot illogical but isthe only

one of which logic will allow when itcomes to ensuringthat the principleof good faith isreally

present in the exegetical operation. Spainconsiders that States depositing a declaration in the

exercise of their sovereignty do not do so in order to build up their image at the expense of a

jurisdiction which, through reservations, becomes voidof al1substanceand purely nominal3*.

III. The intentioncrystallizedin the terms of the declaration

12. Spainconsidersthat the real- veritable- intention ofthe partymaking the declaration
w
at the time of its deposit must be sought. That intention must neverthelessbe well established,

which implies - having regardto the rules of the soundesthenneneutics - that the intentionis

objectified in the text,amely that its terms must be interpretedin goodfaith, in accordancewith

the ordinary meaning in its proper context, unless a special meaning is particularly envisaged

therein, and taking account of its object and p~rpose~~. This is the fundamental rule of *

interpretation sanctionedby the settled case-law of the Court. 1

32~eeCounter-Mernorialof Canadpara71.
33~eeMernorialofSpain,para.34. -53 -

13. If this mle is duly applied, it is admittedly an unsettling spectre34for the Respondent.

Indeed, as we shall be seeing, Canada claims to impose as real or veritable an intention not

consistent with the ordinary (naturalor reasonable, if you prefer) meaning oftheterms used intheir

proper context.

059 14. Canada recognizes the network of engagements or the consensual bond between States

participating in the system of the optional clause3',but is not interested in the consequences this

implies for the interpretation of the declarationsand their reservations on the basis of the principle

of good faith; it prefers to adulterate the vitalrole of this principle in the interpretation in order

to ruin the general rule which makes it an obligation to establishthe ordinary meaning of the terms

in their proper context.

15. Canada claims to discredit "attempts [- according to it - ] to attach a narrow or

technical meaning that would be inconsistent with their ordinary meaning"and, above al], to avoid

"casuistry inconsistentwith a consc.ientiouseffortto search for and give effect to thetrue intention"

[ofthe declarant State]36.Canada glosses over the fact that the ordinary meaning of a term can, in

a specific case, be narrow or technical and it would be this meaning and no other which would

guaranteethe correct application of the principle of good faith. We do not see how what Canada

calls casuistrycould be incompatible with the conscientiouseffort to search for the true intention

[of the declarant State] unless good faith is identified with the unconditional acceptance of the

points of view expressed by the State concerned, case by case.

Mr. President, 1still have a number of remarks to make, but in view of the time, you may

perhaps wish us to pause at this point until tomorrow.

34~eeCounter-Memor oilCanada,para.62.

35~ounter-~emorialofCanada p,ara. 67.
36~eeCounter-Memorialof Canadap,ara.68. - 54-

Le PRESIDENT :Merci beaucoup, Monsieurle professeur Remiro. La Course réunirade

nouveau demainmatin à 10 heures.

L'audience est leveà 13 heures. -
Non-Corrigé* Traduction
I Uncorrecteci I Translation

CR 9819Corr.
15 June1998ly)

CORRIGENDUM

[Translation]

p.6, line4: insteadof Spain,readCanada.