Fisheries Jurisdiction (Spain v. Canada) - Court declares that it has no jurisdiction to adjudicate upon the dispute

INTERNATIONAL COURTOFJUSTICE
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Communiqué
unofficial
for immediate release

No. 98/41
4 December 1998

Case concerning Fisheries Jurisdiction
(Spain v. Canada)

Court declares tbat it bas no jurisdiction

to adjudicate upon the dispute

THE HAGUE, 4 December 1998. The International Court of Justice (ICJ), the principal

judicial organ of the United Nations, today declared that it bad no jurisdiction to adjudicate upon
the dispute brought in 1995 by Spain conceming Fisheries Jurisdiction (Spain v. Canada).

The decision was tak.enby twelve votes against five. Since the Court included on the Bench
nojudge of the nationality of Spain or Canada, these two States had each appointed ajudge ad hoc,

bringing the total number of judges to 17.

Background information

On 28 March 1995, Spain filed an Application instituting proceedings against Canada
following the boarding on the high seas by a Canadian patrol boat, on 9 March 1995, of a fishing
boat, the Estai, flying the Spanish flag. The boarding was carried out in pursuance of the Canadian
Coastal Fisheries Protection Act (as amended on 12 May 1994)and of its implementing regulations.

In its Application, Spain maintained that Canada bad violated the principles of international
law which enshrine freedom of navigation and freedom of fishing on the high seas, and bad also
infringed the right of exclusive jurisdiction of the flag State over its ships on the high seas. As a
basis of the Court'sjurisdiction, Spain relied upon the declarations by which bath States accepted

that jurisdiction as compulsory (Article 36, paragraph 2,the Statute of the Court).

On 21 April 1995, Canada infonned the Court that, in its view, it lacked jurisdiction to deal
with the case by reason of a reservation made in its declaration of 10 May 1994. In this
declaration, Canada stated that the Court had compulsory jurisdiction "over ali disputeother

than ... disputes arising out of or conceming conservation and management measures tak.enby
Canada with respect ta vessels fishing in the [Northwest Atlantic Fisheries Organization's]
Regulatory Area ...and the enforcement of such measures".

Reasoning of the Court

The Court begins by noting that the Parties do not agree on the subject of the dispute. Spain
contends that the dispute mainly relates to sovereignty issues: Canada bas violated international law
by seeking to apply its legislation against a third (Spain) and by exercising its jurisdiction on

the high seas over a ship flying the flag ofthat State. For Canada, on the other band, the case arose
out of and concems conservation and management measures tak.enby it with respect to Spanish
vessels fishing in the NAFO Regulatory Area and the enforcement of such measures. - 2-

After examining Spain's Application, as weil as the written and oral pleadings presented by
the Parties, the Court finds that "the essence of the dispute" is "whether" [the acts of Canada on the

high seas in relation to the pursuit, the arrest and the detention of the Estai on the basis of certain
enactments and regulations adopted by Canada] violated Spain's rights under international law and
require reparation".

The Court must further establish whether the reservation contained in Canada's declaration
applies or not to the dispute as thus characterized. 1t examines in detail the words used in the

reservation and interprets them "in a natural and reasonable way, having due regard to the intention
of [Canada] at the time w hen i taccepted the compulsory jurisdiction of the Court". In doing so,
the Court finds inter alia that the issue of the lawfulness of the Canadian acts, on which Spain

insists, is an issue concerning the merits which bas no relevance for the interpretation of Canada's
declaration and the consequent decision on the Court's jurisdiction.

The Court concludes that the dispute between the Parties, as identified above, constitutes a
dispute "arisîngout of' and "concerning" "conservation and management measures taken by Canada
with respect to vessels fishing in the NAFO Regulatory Area" and "the enforcement of such
measures". 1t follows that the dispute cornes within the terms of the reservation contained in

Canada's declaration. The Court consequently has no jurisdiction to deal with the merits of the
case.

Composition of the Court

The Court was composed as fol!ows: President Schwebel; Vice-President Weeramantry;

Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Lalande, Torres Bern.â.rdez; Registrar
Valencia-0 spina.

President Schwebel and Judges Oda, Koroma and Kooijmans have appended separate opinions
to the Judgment. Vice-President Weeramantry, Judges Bedjaoui, Ranjeva and Vereshchetin, and
Judge ad hoc Torres Bernârdez have appended dissenting opinions.

A summary of the Judgment is given in Press Communiqué No. 98/41bis, to which a brief ,-
summary of the opinions îs annexed. The full text of the Judgment, the opinions and the Press
Communiqués are available on the Court's website (http://www.icj-cij-org).

The printed text of the Judgment and of the opinions will become available in due course
(information requests and orders should be addressed to the publications sections of the United
Nations in New York or Geneva).

Information Office: ·-_/
Mr. Arthur Witteveen, Secretary of the Court (tel: 31-70-302 2336)
Mrs. Laurence Blairon, Information Officer (tel: 31-70-302 2337)

E-mail address: information@icj-cij .org