Judgment of 2 February 1973

INTERNATIONAL COURT OF JUSTICE

1973 YEAR 1973
2 February
General kt
No.56 2 February1973

FISHERIESJURISDICTIONCASE

(FEDERAL REPUBLIC OF GERMANY v. ICELAND)

JURISDICTION OF THE COURT

Composition of the Court-Accto the Court of State not a party to the
Statute-SecuriCouncil resolution of 15 October 1946-Relevance of date of
deposit of declaration of acceptancediction-Juriso dfheiCourt-
Applicability of a compromissory clauseproviding for reference to the Court
on the occurrence of acified event-Failof oneparty to appear-Exa-
mination of question of jurisdiction by the Court proprio motu-Statute,
Article 53-Compromissoryclause inExchange of Notes-StaArticle 36,
paragraph 1-Determination of scope andose of agreement-Relevaofe
preparatory work-Initivalidityof clause-Question of duress-Duration of
clause-Zmplementation of clause subject to conditioncircumstances
offact and law as ground of termination of agreement-Conditions for applica-
tion of doctrine ofamental change of circumstances-EfSect of changed
circumstancesin relation to compromissory clause.

JUDGMENT

Present: President SirMuhammad ZAFRULKAHAN;Vice-PresidentAMMOUN;
Judges Sir Gerald FITZMAURIPEA,DILLNERVOF ,ORSTER G,ROS,
BENGZON, PETRÉNL , ACHSO, NYEAMA D,ILLARD,IGNACIO-PINTO,
DECASTRO M ,OROZOJ I, ÉNEDE ARÉCHAGR Ae;gistrar AQUARONE. In the Fisheries Jurisdiction case,

between
the Federal Republic of Germany,

represented by
Dr. G. Jaenicke, Professor of International Law in the University of Frank-
furtam Main,

as Agent and Counsel,
assisted by

Dr. D. von Schenck, Legal Adviser, Ministry of Foreign Affairs,
Dr. S. Vollmar, Ministry of Foreign Affairs,
Dr. R. Hilger, Ministry of Foreign Affairs,
Dr. D. Booss, Ministry of Food, Agriculture and Forests,
as Advisers,

and

the Republic of Iceland,

composed as above,

delivers thefollowing Judgment:
1. By a letter of 26 May 1972, received in the Registry of the Court on
5 June 1972,the State Secretary of the Foreign Officeof the Federal Republic
of Germany transmitted to the Registrar an Application instituting proceed-
ings against the Republic of Iceland in respect of a dispute concerning the

then proposed extension by the Government of Iceland of its fisheriesjuris-
diction. In order to found the jurisdiction of the Court, the Application relied
on Article 36, paragraph 1, of the Statute of the Court, on an Exchange of
Notes between the Government of the Federal Republic and the Govern-
ment of Iceland dated 19July 1961,and on a declaration, under the Security
Council resolution of 15 October 1946, made by the Federal Republic of
Germany on 29 October 1971and deposited with the Registrar of the Court
on 22 November 1971.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the Government of Iceland. In accordance with
paragraph 3 of that Article, al1 other States entitled to appear before the
Court were notified of the Application.
3. By a letter dated 27 June 1972from the Minister for Foreign Affairs of
Iceland, received in the Registry on 4 July 1972, the Court was informed
(inter aliathat the Government of Iceland was not willing to confer jurisdic-
tion on the Court, and would not appoint an Agent.
4. On 21 July 1972, the Agent of the Federal Republic of Germany filed
in the Registry of the Court a request for the indication of interim measures of
protection under Article 41 of the Statute and Article 61 of the Rules of

Court adopted on 6 May 1946.By an Order dated 17August 1972,the Court
indicated certain interim measures of protection in the case.
5. By an Order dated 18 August 1972, the Court, considering that it wasnecessary to resolve first of al1 the question of its jurisdiction in the case,
decided that the first pleadings should be addressed to the question of the
jurisdiction of the Court to entertain the dispute, and fixed time-limits forthe
filing of a Memorial by the Government of the Federal Republic of Germany
and a Counter-Memorial by the Government of Iceland. The Memorial of

the Government of the Federal Republic was filed within the time-limit pre-
scribed, and was communicated to the Government of Iceland. No Counter-
Memorial was filed by the Government of Iceland and, the written proceed-
ings being thus closed, the case was ready for hearing on 9 December 1972,
the day following the expiration of the time-limit fixed for the Counter-
Memorial of Iceland.
6. The Governments of the United Kingdom and Senegal requested that
the pleadings and annexed documents in this case should be made available
to them in accordance with Article 44, paragraph 2, of the Rules of Court.
The Parties having indicated that they had no objection, it was decided to
accede to these requests. Pursuant to Article 44, paragraph 3, of the Rules of
Court the pleadings and annexed documents were, with the consent of the
Parties, made accessible to the public as from the date of the opening of the
oral proceedings.
7. The Federal Republic of Germany, in reliance on Article 31,paragraph
3, of theStatute, notified the Court of its choice of a person to sit as judge ad

hoc in this case. No objection was made by the Government of Iceland within
the time-limit fixed for that Government to make its views known in accord-
ance with Article 3 of the Rules of Court. However, the Court, taking into
account the proceedingsinstituted against Iceland by the United Kingdom on
14 April1972 inthe caseconcerning FisheriesJurisdictionand the composition
of theCourt in this case, which includes ajudge of United Kingdom national-
ity, decided by eight votes to five that there was in the present phase, con-
cerning the jurisdiction of the Court, a common interest in the sense of
Article 31, paragraph 5, of the Statute which justified the refusa1 of the re-
quest of the Federal Republic of Germany for the appointment of ajudge ad
hoc.
8. On 8 January 1973, after due notice to the Parties, a public hearing was
held in the course of which theCourt heard the oral argument on the question
of the Court's jurisdiction advanced by Professor Dr. G. Jaenicke on behalf of
the Government of the Federal Republic of Germany. The Government of
Iceland was not represented at the hearing.
9. In the course of the written proceedings, the following submissions

were presented on behalf of the Government of the Federal Republic of
Germany :

in the Application :
"The Federal Republic of Germany asks the Court to adjudge and
declare:

(a) That the unilateral extension by Iceland of its zone of exclusive
fisheries jurisdiction to50 nautical miles from the present baselines,
to be effective from 1September 1972,which has been decided upon
by the Parliament (Althing) and the Government of Iceland and
communicated by the Minister for Foreign Affairs of Iceland to the
Federal Republic of Germany by aide-mémoire handed to its Am-
bassador in Reykjavik on 24 February 1972, would have no basis in international law and could therefore not be opposed to the Federal
Republic of Germany and to its fishing vessels.
(b) That if Iceland, as a coastal State specially dependent on coastal
fisheries, establishes a need for special fisheries conservation

measures in the waters adjacent to its Coastbut beyond the exclusive
fisheries zone provided for by the Exchange of Notes of 1961,such
conservation measures, as far as they would affect fisheries of the
Federal Republic of Germany, may not be taken, under internation-
al law, on the basis of a unilateral extension by Iceland of its fisheries
jurisdiction, but only on the basis of an agreement between the
Federal Republic of Germany and Iceland concludedeither bilater-
ally or within a multilateralframework."

in the Memorial:

"The Federal Republic of Germany respectfully requests the Court to
adjudge and declare:
That the Court has fulljurisdiction to entertain the Application sub-
mitted by the Federal Republic of Germany to the Court on 5 June 1972
and to deal with the merits of this case."

At the public hearing on 8 January 1973, the following submission was
presented by the Agent forthe Federal Republic of Germany :

"On behalf of the Government of the Federal Republic of Germany 1
therefore respectfully request the Court to adjudge and declare:

That the Court has fulljurisdiction to entertain the Application sub-
mitted by the Federal Republic of Germany on 5 June 1972and to deal
with the merits of the case."

10. No pleadings were filed by the Government of Iceland, which was also
not represented in the oral proceedings, and no submissions were therefore
presented on its behalf. The attitude of that Government with regard to the
question of the Court's jurisdiction was however defined in the above-
mentioned letter of 27 June 1972from the Minister for Foreign Affairs of
Iceland. After calling attention to certain documents that letter stated:

"Those documents deal with the background and termination of the
agreementrecorded in the Exchange of Notes of 19July 1961,and with
the changed circumstances resulting from the ever-increasingexploita-
tion of the fisheryresources in the seas surrounding Iceland."

The letter concluded by saying:

"After the termination of the agreement recorded in the Exchange of
Notes of 1961,there was on 5 June 1972no basis under the Statute for
the Court to exercisejurisdiction in the case to which the Government of
the Federal Republic refers.
The Government of Iceland, considering that the vital interests of the
people of Iceland are involved, respectfully informs the Court that it is
not willing to conferjurisdiction on the Court in any case involving the
extent of the fishery limits of Iceland, and specifically in the case sought to be instituted by the Government of the Federal Republic of Germany
on 5 June 1972.
Having regard to the foregoing, an Agent will not be appointed to
represent the Government of Iceland."

In a telegram to the Court dated 4 December 1972,the Minister for Foreign
Affairs of Iceland stated that the position of the Government of Iceland was
unchanged.

11. A telegram addressed to the Court on 28 July 1972by the Minister for
Foreign Affairs of Iceland also mentioned that :

"the Federal Republic of Germany only accepted the jurisdiction of the
Court by its declaration of 29October 1971,transmitted to the Registrar
on 22 November 1971, after it had been notified by the Government of
Iceland, in its aide-mémoire of 31 August 1971, that the object and
purpose of the provision for recourse to judicial settlement of certain
matters had been fully achieved".

By mentioning this fact, the Minister for Foreign Affairs of Iceland seemed
to suggest that the timing of the declaration of the Federal Republic of
Germany of 29 October 1971, deposited with the Registrar on 22 November
1971, may have had some effect on the binding force of the agreement con-
tainedin the Exchange of Notes of 19July 1961or on the right of accessto the
Court of the Federal Republic of Germany. As to the first point, it is clear
that the binding force of the agreement between the two Governments, which
is to be examined in the present Judgment, bears no relation to the date on
which the declaration required by the Security Council resolution of 15 Oc-
tober 1946 was deposited with the Registrar: the former is designed to
establish the jurisdiction of the Court over a particular kind of dispute; the

latter provides for access to the Court of States which arenot parties t~ the
Statute. As to the second point (i.e., the question of the Federal Republic's
right of access to the Court), according to the Security Council resolution, a
declaration, which may be either particular or general, must be filed by the
State which is not a party to the Statute, previously to its appearance before
theCourt. This was done. Article 36of the Rules of Court provides asfollows:

"When a State which is not a party to the Statute is admitted by the
Security Council, in pursuance of Article 35 of the Statute, to appear
before the Court, it shall satisfy the Court that it has complied with any
conditions that may have been prescribed for its admission: the docu-
ment which evidences this compliance shall be filed in the Registry at the
same time asthe notification of the appointment of the agent."

The appointment of the Agent of the Federal Republicin the present case was
notified by the letter dated 26 May 1972, received in the Registry on 5 June
1972, whereas the declaration of the Federal Republic of Germany had been
previously filed, on 22 November 1971. 12. The present case concerns a dispute between the Government of
the Federal Republic of Germany and the Government of Iceland
occasioned by the claim of the latter to extend its exclusive fisheries
jurisdiction to a zone of 50 nautical miles around Iceland. In the present
phase it concerns the competence of the Court to hear and pronounce
upon this dispute. The issue being thus limited, the Court will avoid not
only al1 expressions of opinion on matters of substance, but also any
pronouncement which mightprejudge or appear to prejudgeany eventual
decision on the merits.
13. It is to be regretted that the Government of Iceland has failed to

appear in order to plead the objections to the Court's jurisdiction which
it is understood to entertain. Nevertheless the Court, in accordance with
its Statute and its settledjurisprudence, must examine proprio motu the
question of its ownjurisdiction to consider the Application of the Federal
Republic of Germany. Furthermore, in the present case the duty of the
Court to make this examination on its own initiative is reinforced by the
terms of Article 53of the Statute ofthe Court. According to thisprovision
whenever one of the parties does not appear before the Court, or fails to
defend its case, the Court, before finding upon the merits, must satisfy
itself that it has jurisdiction. It follows from the failure of Iceland to
appear in this phase of the case that it has not observed the terms of
Article 62, paragraph 2, of the Rules of Court, which requires inter alia
that a State objecting to thejurisdiction should "set out the facts and the
Iaw on which the objection is based", its submissions on the matter, and
any evidence which it may wish to adduce. Nevertheless the Court, in
examining its own jurisdiction, will consider those objections which
might, in its view, be raised against its jurisdiction.

14. To found the jurisdiction of the Court in the proceedings, the
Applicant relies on Article 36, paragraph 1,of tbe Court's Statute, which

provides that: "The jurisdiction of the Court comprises ... al1matters
speciallyprovided for ... in treaties and conventionsin force"; on para-
graph 5 (the "compromissory clause") of the Exchange of Notes between
the Government of the Federal Republic of Germany and the Govern-
ment of Iceland of 19July 1961(the "1961 Exchange of Notes"), which
provides :
"The Government of the Republic of Iceland shall continue to
work for the implementation of the Althing Resolution of 5 May
1959,regarding the extension of the fisheryjurisdiction of Iceland.

However, it shall give the Government of the Federal Republic of
Germany six months' notice of any such extension; in case of a
dispute relating tosuch an extension,the matter shall, at the request
of either Party, be referred to the International Court ofJustice;
and on the declaration, under the Security Council resolution of 15 Oc-5 5 FISHERIES JURISDICTION (JUGDMENT)

tober 1946, made by the Federal Republic of Germany on 29 October
1971 and deposited with the Registrar on 22 November 1971. In its
resolution of 5 May 1959 the Althing (the Parliament of Iceland) had
declared :

". ..that it considers that Iceland has an indisputable right to fishery
limits of 12 miles, tlzat recognition should be obtained of Iceland's
right to the entire continental shelf area in conformity with the
policy adopted by the Law of 1948, concerning the Scientific Con-
servation of the Continental Shelf Fisheries and that fishery limits
of lessthan 12 miles from base-lines around the country are out of
the question".
15. The meaning of the expression "extension of fisheryjurisdiction"

in paragraph 5 of the 1961 Exchange of Notes must be sought in the
context of this Althing resolution and of the complete text of these
Notes, in which the two contracting parties, referring to discussions which
had recently taken place between them, stated that they were prepared to
conclude the following arrangement: The Federal Republic of Germany,
for its part, agreed (paragraph 1of the Notes) that it "shall not object in
future to a twelve-mile fishery zone around Iceland", measured from
certain designatedbaselines(paragraph2) relating to thedelimitation ofthat
zone. It further agreed to a transitional period, ending on 10 March 1964,
during which vesselsregistered in the Federal Republic might fish within
the outer six miles of the 12-milezone, subject to certain specified times
and exclusions with respect to designated areas (paragraphs 3 and 4). It
also recognized that the Icelandic Government "shall continue to work
for the implementation of the Althing Resolution of 5 May, 1959"
regarding its extension of fisheries jurisdiction. The Icelandic Govern-
ment, for its part, agreed to give six months' notice of such extension and
also agreed that "in case of a dispute relating to such an extension, the

matter shall, at the request of either Party, be referred to the International
Court of Justice" (paragraph 5).

16. In an aide-mémoire of 31 August 1971the Government of Iceland
gave notice to the Government of the Federal Republic of Germany that
it "now finds it essential toextend further the zone of exclusivefisheries
jurisdiction around its coasts to include the areas of sea covering the
continental shelf", adding that: "It is contemplated that the new limits,
the precise boundaries of which willbe furnished at a later date, willenter
into force not later than 1September, 1972." In answer to this notice, the
Government of the Federal Republic advised the Government of Iceland
on 27 September 1971 of its view "that the unilateral assumption of
sovereign power by a coastal State over zones of the high seas is inadmis-
sibleunder international law". It also reserved al1rights deriving from the
1961 Exchange of Notes, "especially the right to refer disputes to the
International Court of Justice". 17. There is no doubt in the present case as to the fulfilment by the
Federal Republic of Germany of its part of the agreement embodied in
the 1961 Exchange of Notes concerning the recognition of a 12-mile
fishery zone around Iceland, and the phasing-out during a period of less
than three years of fishing within that zone by vessels registered in the
Federal Republic. There is no doubt either that a dispute has arisen be-
tween the Parties and that it has persisted despite the negotiations which
took place in 1971and 1972.This dispute clearly relates to the extension

by Iceland of its fisheries jurisdiction beyond the 12-mile limit in the
waters above its continental shelf, as contemplated in the Althing resolu-
tion of 5 May 1959.

18. Equally, there is no question but that Iceland gave the Federal
Republic of Germany the required notice of extension. In consequence,
the Federal Republic having disputed the validity, not of the notice but
of the extension, the only question now before the Court is whether the
resulting dispute falls within the compromissory clause of the 1961
Exchange of Notes as being one for determination by the Court. Since,
on the face of it, the dispute thus brought to the Court upon the Applica-
tion of the Federal Republic of Germany falls exactlywithin the terms of
this clause, the Court would normally apply the principle it reaffirmed in
its 1950 Advisory Opinion concerning the Cornpetenceof the General
Assemblyfor the Admission of a State to the UnitedNations, according to

which there is no occasion to resort to preparatory work if the text of a
convention is sufficiently clear in itself. However, having regard to the
peculiar circumstances of the present proceedings, as set forth in para-
graph 13above, and in order fully to ascertain the scope and purpose of
the 1961Exchange ofNotes, theCourt willundertake a brief reviewofthe
negotiations that led up to that exchange.

19. The account of these negotiations which has been given to the
Court by the Applicant, as wellas certain documents exchanged between
the two Governments, show that, as early as June 1958,bya Note verbale
dated 9 June and delivered to the Icelandic Foreign Minister on 16June,
the Federal Republic of Germany had protested against the announced
intention of the Icelandic Government to extend its exclusive fisheries
zone to 12 nautical miles with effect from 1 September 1958.In a Note
verbale of 16July 1958it renewedits protest, stating:

"The Federal Government regrets this one-sided procedure ex-
tremely and is compelled to express its profound disappointment
about the fact that the Icelandic Government has now taken the
above-mentioned unilateral steps without having accepted the sug- gestions of the Federal Government previously to seek anagreement
on fishingoffthe Icelandic coast by friendly negotiations with the
Federal Government or other interested nations."

The Note expressed the hope that the Government of Iceland would be
prepared to enter into multilateral negotiations and specificallysuggested
that such negotiations should have as their aim to bring about an agree-
ment that would take into account "the principles of international law"
and "the historic interests of al1nations concerned".
20. A Note verbale of 5 August 1959from the Embassy of Iceland in
Bonn to the Minister for Foreign Affairs of the Federal Republic of
Germany drew attention to the Icelandic proposa1 at the 1958 Geneva

Conference on the Law of the Sea to the effectthat a possible disagree-
ment over the extension of exclusivefishery rights should be settled by
arbitration. The position taken by the Icelandic delegation at that con-
ference wasre-emphasized by repeating :
"It is necessary that the Coastal State can unilaterally include an
adjacent area in its fishing zone, subject to arbitration in case of

disagreement."
In its reply on 7 October 1959the Government of the Federal Republic
of Germany contradicted the view that a coastal State could unilaterally
include an adjacent area in its fishingzone, subject to arbitration in case

of disagreement. Direct negotiations between the parties appear to have
been suspended until the conclusion of the then pending and extensive
negotiations between the Government of the United Kingdom and the
Government of Iceland, which culminated in an Anglo-Icelandic Ex-
change of Notes on 11 March 1961.Negotiations between the Govern-
ments of the Federal Republic and Iceland were, however, resumed im-
mediately thereafter.
21. On 13 March 1961 the Minister for Foreign Affairs of Iceland
transmitted to the Embassy of the Federal Republic of Germany copies of
the Anglo-Icelandic Exchange of Notes and at the same time called atten-
tion to modifications of certain baselines. Thereupon the Government of
the Federal Republic of Germany approached the Government of Iceland
in order to resume negotiations. In an aide-mémoire of12April 1961it
noted with interest the Anglo-Icelandic Exchange of Notes and proposed
discussionswith a viewto the conclusion of an agreement betweenIceland

and the Federal Republic. Subsequent negotiations centred on various
economic matters raised by the Government of Iceland and on the
terminal date for the "phasing-out" period, which the Icelandic Govern-
ment wished to have identical with that comprised in the Anglo-Icelandic
Exchange of Notes despite the later timing of the proposed exchange of
Notes with the Federal Republic of Germany.

22. It is significant thaturing these negotiations the Icelandic delega-
tion endeavoured to persuade the Government of the Federal Republic58 FISHERIESJURISDICTION (JUDGMENT)

that no provision for judicial settlement should be included. In an aide-
mémoire of20 June 1961, defining the position of the Government of
Iceland at the outset of the negotiations in that year, that Government
sought to excludeany provision for judicial settlement on the ground that
it was unnecessary inview ofthe Exchange of Notes with the Government
of the United Kingdom dated 11 March 1961.The aide-mémoire, after
dealing with baselines and the duration of the adjustment period, ex-
plicitly state:

"Reference to the International Court of Justice.It is only fair to
say that it should not be necessaryfor the Federal Republic to insist
on this point for the obviousreason that if Iceland wereto extend the
limits beyond 12miles the U.K. Government certainly would refer
that matter to the Court, on its own initiative."

According to the Memorial of the Federal Republic, this attempt was
however resisted: the German delegation insisted on the inclusion of the
same provision as in the Anglo-Icelandic Exchange of Notes of 11March
1961,which, in view of the possibility of recourse to the Court and the
terms of Article 102of the Charter of the United Nations, provided for
registration of the Exchange of Notes with the Secretariat of the United
Nations. By 6 July 1961,agreement had been reached on the terms of the
Notes to be exchanged, including the compromissory clause and provi-
sion for registration, and they wereexchanged on 19July 1961 ;the agree-

ment thus concluded was registered by the Government of Iceland with
the Secretariat of the United Nations on 27 September 1961.

23. This history of the negotiations reinforces the view that the Court
has jurisdiction in this case, and adds emphasis to the point that the real
intention of the parties was to give the ~overnment of the Federal
Republic of Germany the same assurance as the United Kingdom, in-
cluding the right to challenge before the Court the validity of any further
extension of Icelandic fisheriesjurisdiction in the waters above its con-
tinental shelf beyond the 12-milelimit. In consequence, the exercise of
jurisdiction by the Court to entertain the present Application would faIl
within the terms of the compromissory clause and correspond exactly to
the intentions and expectations of both Parties when they discussed and
consented to that clause. It thus appears from the text of the compro-

missory clause, read in the context of the 1961Exchange of Notes and in
the light of the history of the negotiations, that the Court hasjurisdiction.
It has however beencontended that the agreementeither was initially void
or has sinceceased to operate. The Court willnow consider these conten-
tions.

24. The letter of 27 June 1972addressed to the Registrar by the Minis-
ter for Foreign Affairs of Iceland contains the following statement: "The1961 Exchange of Notes took place under extremely difficult circum-
stances." In its Memorial, the Federal Republic of Germany interpreted
this statement as questioning the initial validity of the agreement, in-
asmuch as it appeared "to intimate that the conclusion of the 1961
Agreement had taken place, on the part of the Government of Iceland,
under some kind of pressure and not by its own free will". There can be
little doubt, as is implied in the Charter of the United Nations and
recognized in Article 52of the Vienna Convention on the Law of Treaties,
that under contemporaryinternational law an agreementconcluded under
the threat or use of force is void. It is equally clear that a court cannot
consider an accusation of this serious nature on the basis of a vague
general charge unfortified by evidence in its support. The history of the

negotiations which led up to the 1961 Exchange of Notes reveals that
these instruments were freely negotiated by the interested parties on the
basis of perfect equality and freedom of decision on both sides. No fact
has been brought to the attention of the Court from any quarter suggest-
ing the slightest doubt on this matter.

25. In hisletter of 27June 1972to the Registrar of the Court, the Minis-
ter for Foreign Affairs of Iceland observed that the 1961agreement "was
not of a permanent nature", and added that:

"In particular, an undertaking for judicial settlement cannot be
considered to be of a permanent nature. There is nothing in that
situation, or in any general rule of contemporary international law,
to justify any other view."
This observation, directed against the Court's jurisdiction, appears to
rest on the following chain of reasoning: (1) inasmuch as the compromis-

sory clause contains no provision for termination, it could be deemed to
be of a permanent nature; but (2) a compromissory clause cannot be of a
permanent nature; therefore (3) it must be subject to termination by
givingadequate notice. This reasoning appears to underlie the observation
of the Government of Iceland in its aide-mémoireof 31 August 1971to
the effect that:
"In the opinion of the Icelandic Government ... the object and
purpose of the provision for recourse to judicial settlement of certain

matters envisaged in the passage quoted above [i.e., the compromis-
sory clause] have been fullyachieved."
26. It appears to the Court that, although the compromissory clause in
the 1961 Exchange of Notes contains no express provision regarding
duration, the obligation it embraces involves an inherent time-factor
conditioning its potential application. It cannot, therefore, be described
accurately as being of a permanent nature or as one binding the parties in
perpetuity. This becomes evident from a consideration of the object ofthe clause when read in the context of the Exchange of Notes.
27. The 1961 Exchange of Notes did not set up a definite time-limit
within which the Government of Iceland might make a claim in imple-
mentation of the Althing's resolution. It follows that there could be no
specification of a time-limit for the corresponding right of the Federal

Republic of Germany to challenge such an extension and, if no agreement
werereached and the dispute persisted, to invoke the Court'sjurisdiction.
Theright of the Federal Republic thus to act would last solongas Iceland
might seek to implement the Althing's resolution. This was, of course,
within the control of the Government of Iceland, which in 1971,ten years
after theExchange of Notes, made a claim CO exclusivefisheryrights over
the entire continental shelf area surrounding its territory and thus
automatically brought into play the right of the Federal Republic to have
recourse to the Court.

28. That being so, the compromissory clause in the 1961Exchange of
Notes may be described as an agreement to submit to the Court, at the
unilateral request of either party, a particular type of dispute which was
envisaged and anticipated by the parties. The right to invoke the Court's
jurisdiction was thus deferred until the occurrence of well-definedfuture
events and was therefore subject to a suspensive condition. In other

words, it was subject to a condition which could, at any time, materialize
if Iceland made a claim to extend her fishery limits, and the right of
recourse to the Court could be invoked only in that event.

29. The above observations sufficeto dispose of a possible objection
based on views expressed by certain authorities to the effectthat treaties
of judicial settlement or declarations of acceptance of the compulsory
jurisdiction of the Court are among those treaty provisions which, by
their verynature, may be subjectto unilateral denunciation inthe absence
of express provisions regarding theirduration or termination. Sincethose
views cannot apply to a case such as the present one, the Court does not
need to examine or pronounce upon the point of principle involved. It is
sufficientto remark that such viewshave reference only to instruments in
which the parties had assumed a general obligation to submit to judicial
settlement al1or certain categories of disputes which might arise between

them in the unpredictable future. The 1961Exchange of Notes does not
embody an agreement of this type. It contains a definite compromissory
clause establishing the jurisdiction of the Court to deal with a concrete
kind of dispute which was foreseen and specificallyanticipated by the
parties. In consequence, when a dispute arises of precisely the sort con-
templated, and is referred to the Court, the contention that the com-
promissory clausehas lapsed, or isterminable, cannot be accepted. 30. In his statement to the Althing on 9 November 1971,the Prime
Minister of Iceland alluded not only to an alleged change of circum-
stances with respect to fisheries and fishing techniques (which will be
considered later in this Judgment), but also to changes regarding "legal
opinion on fisheries jurisdiction". However, the relevance to the com-
promissory clauseof this allusion isnot apparent, sinceif there isa dispute
as tosuch changesit would be embraced inthe compromissory clause and
might be considered as an issue going to the merits. On the other hand, it
could be considered as relevant to the compromissory clause on an
hypothesis familiar in thelaw of certain States under the guise of "failure
of consideration". As such, it is linked with the assertion that, the object
and purpose of the agreement having been fulfilled, it no longer has a
binding effectfor Iceland.
31. It should be observed at the outset that the compromissory clause
has a bilateral character, each of the parties being entitled to invoke the

Court's jurisdiction; it is clear that in certain circumstances it could be to
Iceland's advantage to apply to the Court. The argument of Iceland
appears, however, to be that, because of the general trend of development
of international law on the subject of fishery limits during the last ten
years, the right of exclusivefisheriesjurisdiction to a distance of 12miles
from the baselines of the territorial sea has been increasingly recognized
and claimed by States, including the applicant State itself. It would then
appear to be contended that the compromissory clause was th price paid
by Iceland for the recognition at that time of the 12-milefishery limit by
the other party. It is consequently asserted that if today the 12-mile
fisherylimit is generallyrecognized, there would be a failure of considera-
tion relieving Iceland of its commitment because of the changed legal
circumstances. It is on this basis that it is possible to interpret the Prime
Minister's statement to the Althing on 9 November 1971, to the effect
that it was unlikely that the agreement would have been made if the
Government of Iceland had known how thesematters would evolve.

32. While changes in the law may under certain conditions constitute
valid grounds for invoking a change of circumstances affecting the dura-
tion of a treaty, the Icelandic contention is not relevant to the present
case. The motive which induced Iceland to enter into the 1961 Ex-
change of Notes may well have been the interest of obtaining an imme-
diate recognition of an exclusivefisheriesjurisdiction to a distance of 12
miles in the waters around its territory. It may also be that this interest
has in the meantime disappeared, since a 12-mile fishery zone is now
asserted by the other contracting party in respect of its own fisheries
jurisdiction. But in the present case, the object and purpose of the 1961
Exchange of Notes, and therefore the circumstances which constituted
an essential basis of the consent of both parties to be bound by the agree-
ment embodied therein, had a much wider scope.That object and purpose
was not merelyto decide upon the Icelandic claim to fisheriesjurisdictionup to 12 miles, but also to provide a means whereby the parties might
resolve the question of the validity of any further claims. This followsnot
only from the text of the agreement but also from the history of thenego-
tiations, that is to Say,from the wholeset of circumstances which mustbe
taken into account in determining what induced both parties to agree to
the 1961Exchange of Notes.

33. An analysis of the agreement, in the light of its object and purpose,
revealsthat it comprised two setsof obligations:
(a) those obligations of a transitory character contained in paragraphs 3
and 4, by which the fishing vessels of the other contracting party
wereallowedto fishfor a transitional period within areas of the outer
6 miles of the 12-mile fishery zone. Those provisions clearly have
attained their objective and may be considered to have expired on

10March 1964;

(b) other obligations, contained in paragraphs 1, 2 and 5, which do not
havea transitory charactersincefor them,in contrastto paragraphs 3
and 4, the parties did not provide any limitation rationetemporis.

34. It is possible that today Iceland may find that some of the motives
which induced it to enter into the 1961 Exchange of Notes have become

less compelling or have disappeared altogether. But this is not a ground
justifying the repudiation of those parts of the agreement the object and
purpose of which have remained unchanged. Iceland has derived benefits
fromthe executed provisions of the agreement, such asthe recognition by
the Federal Republic of Germany since 1961 of a 12-mile exclusive
fisheries jurisdickion, the acceptance by the Federal Republic of the
baselines established by Iceland and the relinquishment over a period of
less than three years of the pre-existing traditional fishing by vessels
registered in the Federal Republic. Clearly itthen becomesincumbent on
Iceland to comply with its side of the bargain, which is to accept the
testing before the Court of the validity of its further claims to extended
jurisdiction. Moreover, in the case of a treaty which is in part executed
and in part executory, in nrhich one of the parties has already benefited
from the executed provisions of the treaty, it would be particularly inad-
missible to allow that party to put an end to obligations which were
accepted under the treaty by way ofquidpro quofor the provisions which

the other party has already executed.

35. In his letter of 27 June 1972 to the Registrar, the Minister for
Foreign Affairs of Iceland refers to "the changed circumstances resulting
from the ever-increasing exploitation of the fishery resources in the seassurrounding Iceland". Judicial notice should also be taken of other state-
ments made on the subject in documents which Iceland has brought to
the Court's attention. Thus, the resolution adopted by the Althing on
15February 1972 contains the statement that "owing to changed circum-
stances the Notes concerning fishery limits exchanged in 1961 are no
longer applicable".
36. In these statements the Government of Iceland is basing itself on

the principle of termination of a treaty by reason of change of circum-
stances. International law admits that a fundamental change in the
circumstances which determined the parties to accept a treaty, if it has
resulted in a radical transformation of the extent of the obligations im-
posed by it, may, under certain conditions, afford the party affected a
ground for invoking the termination or suspension of the treaty. This
principle, and the conditions and exceptions to which it is subject, have
been embodied in Article 62 of the Vienna Convention on the Law of
Treaties, which may in many respects be considered as a codification of
existing customary law on the subject of the termination of a treaty
relationship on account of change of circumstances.
37. One of the basic requirements embodied in that Article is that the
change of circumstances must have been a fundamental one. In this

respect the Government of Iceland has, with regard to developments in
fishing techniques, referred in an officia1publication onFisheriesJurisdic-
rioninIceland,enclosed with the Foreign Minister's letter to the Registrar
of 27 June 1972,to the increased exploitation of the fishery resources in
the seassurrounding Iceland and to the danger of still further exploitation
because of an increase in the catching capacity of fishing fleets. The
Icelandic statements recall the exceptional dependence of that country on
its fishing for its existence and economic development. In his letter of
27 June 1972the Minister stated:

"The Government of Iceland, considering that the vital interests of
the people of Iceland are involved, respectfully informs the Court
that it is not willing to confer jurisdiction on the Court in any case i
involving the extent of the fishery limits of Icela..."

In this same connection, the resolution adopted by the Althing on 15
February 1972had contained a paragraphin these terms:
"That the Governments of the United Kingdom and the Federal
Republic of Germany be again informed that because of the vital
interests of the nation and owing to changed circumstances the

Notes concerning fishery limits exchanged in 1961 are no longer
applicable and that their provisions do not constitute an obligation
for Iceland."
38. The invocation by Iceland of its "vital interests", which were not
made the subject of an express reservation to the acceptance of the juris- dictional obligation under the 1961Exchange of Notes, must be inter-
preted, in the context of the assertion of changed circumstances, as an
indication by Iceland of the reason why it regards as fundamental the
changes which in its view have taken place in previously existing fishing
techniques. This interpretation would correspond to the traditional view
that the changes of circumstanceswhich must be regarded as fundamental
or vital arethose which imperil the existenceor vital development of one
of the parties.

39. The Applicant, for its part, has expressed before the Court the view
that "the danger of overfishing has not yet materialized", and made it
clear, in its oral argument, that it was not to be understood as accepting
the correctness of the claim by the Government of Iceland that the tech-
nical development of fishing equipment and modern fishing techniques
had made it more pressing than before to take conservation measures in
order to prevent overfishinginthe waters around Iceland.

40. The Court, at the present stage of the proceedings,does not need to
pronounce on this question of fact, as to which there appears to be a
divergence of views between the two Governments. If, as contended by
Iceland, there have been any fundamental changes in fishing techniques
in the waters around Iceland, those changes might be relevant for the
decision on the merits of the dispute, and the Court might need to
examine the contention at that stage, together with any other arguments

that Iceland might advance in support of the validity of the extension of
its fisheriesjurisdiction beyond what was agreed to in the 1961 Exchange
of Notes. But the alleged changes could not affectin the least the obliga-
tion to submit to the Court's jurisdiction, which is the only issue at the
present stage of the proceedings. It followsthat the apprehended dangers
for the vital interests of Iceland, resulting from changes in fishing tech-
niques, cannot constitute a fundamental change with respect to the lapse
or subsistence of the compromissory clause establishing the Court's
jurisdiction.

41. It should be observed in this connection that the exceptional im-
portance of coastal fisheries to the Icelandic economy is expressly
recognized in the 1961 Exchange of Notes, and the Court, in its Order of
17 August 1972, stated that "it is also necessary to bear in mind the
exceptional importance of coastal fisheries to the Icelandic economy as

expresslyrecognized by the Federal Republic in itsNote addressed to the
Foreign Minister of Iceland dated 19July 1961".The Court further stated
that "from that point of view account must be taken of the need for the
conservation of fish stocks in the Iceland area" (I.C.J. Reports 1972,
p. 34). This point is not disputed.
42. Account must also be taken of the fact that the Applicant, in its
contentions before the Court, expressed the opinion that if Iceland, as a
coastal State speciallydependent on coastal fisheriesfor its livelihood or
economic development, asserts a need to procure the establishment of a special fisheriesconservation régime(including such a régimeunder which
it enjoys preferential rights) in the waters adjacent to itsstbut beyond
the exclusive fisherieszone provided for by the 1961Exchange of Notes,
itcan legitimately pursue that objective by collaboration and agreement
with the other countries concerned, but not by unilateral assumption of
exclusive rights within those waters. The exceptional dependence of
Iceland on its fisheries and the principle of conservation of fish stocks
having been recognized, the question remains as to whether Iceland is or is

not competent unilaterally to assert an exclusive fisheries jurisdiction
extending beyond the 12-mile limit. The issue before the Court in the
present phase of the proceedings concerns solely its jurisdiction to
determine the latter point.

43. Moreover, in order that a change of circumstances may give rise
to a ground for invoking the termination of a treaty it is also necessary
that it should have resulted in a radical transformation of the extent of
the obligations still to be performed. The change must have increased the
burden of the obligations to be executed to the extent of rendering the
performance someihing essentially different from that originally under-
taken. In respect ofthe obligation with which the Court is here concerned,
this condition is wholly unsatisfied; the change of circumstances alleged

by Iceland cannot be said to have transformed radically the extent of the
jurisdictional obligation which isimposed inthe 1961Exchange of Notes.
The cornpromissory clause enabled either of the parties to submit to the
Court any dispute between them relating to an extension of Icelandic
fisheriesjurisdiction in the waters above its continental shelf beyond the
12-milelimit. The present dispute is exactly of the character anticipated
in the compromissory clause of the Exchange of Notes. Not only has the
jurisdictional obligation not been radically transformed in its extent; it
has remained preciselywhat it was in 1961.

44. The Applicant, in the oral proceedings, advanced the contention
that the assertion of changed circumstances does not, ipsofacto, release

the State invoking them from its treaty obligation unless it has been
established, either by consent of the other party or by judicial or other
settlement between the parties, that the changed circumstances are of a
kind whichjustifies releasefrom existingtreaty obligations.

45. In the present case, the procedural complement to the doctrine of
changed circumstances is provided for in the 1961 Exchange of Notes,
which specifically calls upon the parties to have recourse to the Court in
the event of a dispute relating to Iceland's extension of fisheriesjurisdic-tion. Furthermore, any question as to the jurisdiction of the Court,
deriving from an alleged lapse through changed circumstances, is resolv-
able through the accepted judicial principle enshrined in Article 36,
paragraph 6, of the Court's Statute, which provides that "in the event of
a dispute as to whether the Court has jurisdiction, the matter shall be
settled by thedecision of the Court". In this case such a dispute obviously
exists, ascan be seen from Iceland's communications to the Court, and
to the other Party, even if Iceland has chosen not to appoint an Agent,
file a Counter-Memorial or submit preliminary objections to the Court's
jurisdiction; and Article 53 of thetatute both entitlesthe Court and, in
the present proceedings, requires it to pronounce upon the question of its
jurisdiction. This it has nowone with binding force.

46. For these reasons,

by fourteen votes to one,

finds that it has jurisdiction to entertain the Application filed by the
Government of the Federal Republic of Germany on 5June 1972and to
deal with the merits of the dispute.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this second day of February, one thousand
nine hundred and seventy-three, in three copies, of which one will be
placed in the archives of the Court and the others transmitted to the
Government of the Federal Republic of Germany and to the Government
of the Republic of Iceland, respectively.

(Signed) ZAFRULLK AHAN,

President.
(Signed) S. AQUARONE,

Registrar.

President Sir Muhammad ZAFRULLA KHANmakes the following dec-
laration:

1am in entire agreement with the Judgment of the Court. 1consider it
needful, however,to append the followingbrief declaration.

21 The sole question before the Court in this phase of these proceedings
is whether, in viewof the compromissory clause in the Exchange of Notes
of 19July 1961between the Government of the Federal Republicof Ger-
many and the Government ofIceland,read withArticle 36(1)ofits Statute,
the Court is competent to pronounce uponthe validity ofthe unilateral ex-
tension by Iceland of its exclusive fisheriesjurisdiction from 12 to 50
nautical miles from the baselines agreed to by the parties in 1961. Al1
considerations tending to support or to discount the validity of Iceland's
action are, at this stage, utterly irrelevant. Toany such consideration
into aid for the purpose of determining the scope of the Court's jurisdic-
tion, would not only beg the question but would put the proverbial cart

before the horse with a vengeance and is to be stronglydeprecated.

Judge Sir Gerald FITZMAURICE appends a separate opinion to the
Judgment of the Court.

Judge PADILLA NERVO appends a dissenting opinion to theJudgment of
the Court.

(Initialled) Z.K.

(Initialled) S.A.