MEMORIALON JURISDICTZON
SUBMITTEDBY THE GOVERNMENT
OF THE FEDERAL REPUBLIC
OF GERMANY INTRODUCTION
1. This Memorial is siibniittcd in pursuancc of the Order of thc Coitrt datcd
18 August 1972 in the Fisheries Jiirisdictioii Case (Fi~I~~rrR tlep~iblica/ Ger-
many v. Icelaii<l). By this Ordcr the Court decided that the first plcadings in.
this case should be addrcsscd to the question of jurisdiction of the Coiirt
to entertain the dispute which had been submittcd by the Application of the
Federal Republic of Germany filed in the Registr), of the Court on 5 Jiine
1972.
2. The Federal Republic of Gerinany appreciates the decision of the Coiirt,
taken under the authority of Article 48 of the Statute of the Coiirt and Article
37of the Rules of Coiirr, 10dciil ivith thejurisdictionaissueseparately, before
entering the merits of the case. Till now, the Government of lceland has
objected to thejiirisdictionof the Court to deal with the dispiitesiibmitted by
the Federal Republic of Germany and has, in its letter of 27 Jone 1972 ad-
dressed to the Court. declared that ifwould no1appoint an agent to rcpresent
the Republic of lceland before the Court. The Federal Repiiblic earnestly
hnneî t~at. bv 1rc;itine the iiirisdictionalissue senarately from the siibicct-
matter of the dispute, ïhc Govcrnment of Iceland might be induccd 10;ippear
before the Court, or tliat, if thc Government of Iceland wo~ild slill persist in
its neeative attitude in this phasc of the proceedines. a dccision of thc Court
a%rGng its jurisdiciion niight evcntualiy persuade the Governmcnt of Ice-
land to ioin the procccdings at a later stage when the merits of the casc will
he arauédbeforethe Court. BY separatins the iurisdictional issuefrom the sub-
Stance-matter of the dispiite, ihe'court r>rovides the Government of lceland
witha fair chance Io argue its claim for an cxtended fisheries zone nt that later
stage of these proceedings without being.prccluded with any argiiment it
might wish Io advance in this respect. The Government of lceland should,
however, realize that according10 Article 36,paragraph 6, of the Statute of the
Court to which Iceland has subscribed, it is within the iinqiiestionable com-
petence of the Court to dccide on ils jiirisdiction. No individual party is
allowed 10 decide unilaterally by itself whether or not the Court has juris-
diction Io decide a dispiite siibmitted to the Court in duc form.
1. The Basis of the Court's Jurisdiction: Paragraph 5
of theExchangc of Notes of 19 July 1961
3. The subject-niatter of the dispute has already been defined in the Ap-
plication instituting proceedings on behalf of the Federal Rcpublic of Ger-
many against the Republic of Iccland, filed in the Registry of the Court on
5 June 1972. 1t is the validity or otherwise of the extension by lceland of its
exclusive fisheries zone Io 50 nautical miles from the prcscnt baselines. This
extension has been prit into elTect on I September 1972 by the Regulations
issued by the Icelandic Ministry of Fisheries on 14July 1972.(These Rcgiila-
tions have been reprodiiced in Annex A to the Request for the Indication of
Interim Measures of Protection filed on behalf of the Federal Republic of
Germany in the Registry of the Court on 21 July 1972.) In its Application of
5 June 1972the Federal Republic of Germany has asked thc Court to ~idjudge
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 I September 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 Ger-
many by aide-mémoire handed to its Ambassador 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
toits fishing vessels;
(b) that if Iceland, as a coastal State specially dependent on coastal fisheries,
establishes a need for s~ecial tisheries conservation measures in the
uoicr, ndjaxnr to iii co2,t but heyond ihe e\cliir~vc fi,hcrics mnc prs-
\.idtJ ior by the txih~ngr. of Noies uf 1961.su211conser\aiiun niusure\,
as i~r 3s ihc) aould 3iTcct lisherie%of the Federdl Ktp.ibliiofGerrnany
ma! ni>[ bc iaken. iindtr intcrn~tion.il laiv, on the b~,is of a iinil.iteml
e~icnsirin b) 1cr.l~nJ<iTitrfislirrics jurisiliiti<but only on the bists of
an agreement between the ~ederal Republic of Germiny and lceland
concluded either bilaterally or within a multilateral framework.
When the Application of 5 June 1972containing these Submissions was filed,
the aforenicntioned Icelandic Regiilations No. 18911972 had not yet been
issued; Submission (a) could, therefore, refer only to the Althing Resolution
and to the aide-mémoire of the Minister for Foreien Affairs of Iceland which
had announced that measure. Since the ~egulaiions No. 189/1972 which
purport to extend the exclusive fisheries zone of lceland to 50 nautical miles
andorohibit al1foreien fishinr! activities in this zone. have been ut into effect
by tic Icelandic authorities ln 1 September 1972, ~ubmission'(a/ will have
to be amended accordingly in the later pleadings on the merits of the case.The
subject-matter of the dispute will not be changed thereby.
4. In submitting this dispute to the Court, the Federal Republic of Ger-
many relies on the Exchange of Notes between the Government of the Federal
Republic of Germany and the Government of Iceland dated 19 July 1961
(the text of the Notes exchanged is reproduced in Annex C of the Application
of 5 June 1972). Paragraphs 1 to 4 of these Notes provided that the
Federal Republic of Germany would no longer object to the 12-mile exclusive
fishery zone proclaimed by Iceland in 1958and that, for a transitional period
iintil 10 March 1964, fishing by vesselsregistered in the Federal Republic of
Germany in certain areas within the outer six miles of this zone would not be
objected to by the Government of Iceland; then, paragraph 5 of the Notes
exchanged reads as follows:
"The Government of the Republic of Iceland shall continue to work
for the implementation of the Althing Resolution of 5 May 1959 re-
gdrding the extension of the fishery jurisdiction of Iceland. However, it
shall give the Government of the Federal Republic of Germany six
months' notice of any such extension; in caseof a dispute relating to such
extension the matter shall, at the request ofeither Party, be referred to the
International Court of Justice."
The final clause of the Notes contained the statement of both Gnvernments
that the exchanged Notes "constituted an agreement" between the two
Governments and should enter into force immediately. The Government of
Iceland undertook to register the Exchange of Notes with the Secretary-
General of the United Nations in accordance with Article 102 of the Charterof the United Nations, and the Exchange of Notes was so registered on 27
September 1961 (UNTS, Vol. 409, p. 47).
5. Consequently, there could be no doubt that paragraph 5 of the Exchange
of Notes of 1961 contains a valid international agreement between the
Government of the Federal Republic of Germany and the Government of
lceland which conferred jurisdiction on the Court ta deal with any dispute
"relatine to such an extension" asenvisa~ed in the first sentence of oaragraoh
5. that is 10Iiny dispute aribing (rom an crienson of the fisheries juri\diztii~n
of Iccllind be)ond thc 12-mile Iimit rdthe oLicr lini~t of the continent.il shrlî
ilround Iceland to *hich the Cii~vernment of 1cel:inJ hxd been c~iiiiiii.tir.rl hy
the Kcsolutiori cifttie lcelandic I'arli~nient (.Alth ng5 hl;iy 1959.
The relevant part of tlic Althing I<rsoliitioii of5 \I;iy 1959red, s folld\is:
"The Althing declares that ilconsiders that Iceland has an undispu-
table right to fishery limits of 12 miles, that recognition should be
obtained of Iceland's right to the entire continental shelf area in confor-
mitywith the policy adopted by the Law of 1948concerning the Scientific
Conservation of the Continental Shelf Fisheries and that fishery limits
of less than 12 miles from baselines around the country are out of the
question."
Pariigraph 5 si the Exchange of Notes cuvers di<piites ai to the internütiu!iùl
validityof any e.~tcnsioii of liclandic fishcries jiirisdicheyond 11 niilcr as
well a; to the modalities of the régime instituied by lceland-in the extended
zone. Consequently, there can again be no doubt that the subject-matter of
the dispute as defined in the Submissions contained in the Application of the
Federal Reoublic of Germanv (.~e oar.. 3 above). that is. whether or not the
e&nsion gy lceland of ils fisheries jurisdictiib 50 nautical miles is valid
under international law, falls within the scope ofthejurisdictionof the Court.
The present dispute is precisely of such a nature as.the parties had anticipated
in formulating paragraph 5 of the Exchange of Notes.
6. Paragraph 5 of the Exchange of Notes expressly stipulates that any
dispute relating 10the extension by lcelandof its fisheries jurisdiction mabe
referred to the Court "al the request of either party". These words clearly
indicate that such a dispute may be brought before the Court by unilateral
application; no further consent of the other party is needed to enable the
Court to exercise itsjurisdiction upon the application by one of the parties.
Any other interpretation would render the special proviso "at the request of
either oartv" meaninrless. Conseauentlv. the Federal Reoublic of Germanv
was eniitléd, under t<e terms of the agkiement contained in paragraph 5 of
the Exchange of Notes, to submit the dispute 10 the Court by means of an
application in accordance with Article 40. paragraph 1.of the Statute of the
Court and Article 32, paragraph 2, of the Rules of Court. That a "dispute"
exists between the Parties to the present case had already been stated in the
Application by the Federal Republic of Germany or5 June 1972; since then,
the dispute has persisted with no settlement in sight.
7. The terms of the agreement on the jiirisdiction othe Court contained in
paragraph 5 of the Exchange of Notes neither limit the duration of the
agreement nor do they admit ils unilateral deniinciation. Therefore, the
Federal Republic of Germany maintains that this agreement is still in force
and provides the legal basis ,for the Court's jurisdiction to entertain the
Application of the Federal Republic of Germany in this case.
8. The Government of Iceland, however, which previously had never
raised ils voice against the validity and applicabilityof the agreement con-tained in paragraph 5 of the Exchange of Notes has now declared, by aide-
mémoire of 31 August 1971 (see Annex D to the Application of the Federal
Reoublic of Germany). that "the obiect and PurDose of the ~rovision for
recbiirse IO judic:lils~iilenicni ... ha\e been full): iichieied" ïnd. hy aide-
mr'moire of 24 I'cbriiiiry 1972(sec Anne.\ II Io ihe Appli~iiion of the Fcdcriil
Renuhlic of Gernianyj. thxi il "coiisidcrs the proi.ijioii~ uf the Ni>ics ex-
chinged no longer ablicable and consequently terminated". The Govern-
ment of lceland has reiterated these contentions, which had immediately
been rejecied by the Government of the Federal Republic of Germany in its
aide-mémoires of 27 September 1971 and 14 March 1972(see Annexes E and
J of the Application of the Federal Republic of Germany), in the letter of its
Minister for Foreig- Affairs addressed ta the Coiirt. dated 27 June 1972. In
thi> Ictter, ihc C;o\ernmeni uf Icel.ind den c,~iitendcd 1h:ii ilie :igrcciiieni uii
ji.d ~4.~\eitlciiicntcnibodicJ in p:iriigr:iph 5 of ihc E\;h~iigc of Nvtc> <if IY
JdI! 1961 uns 'nu loncer ii~nli;iiblc" aiid "teriiiiii.iicr,iiiJ dcil.ired ihdt
it would not recognize the jurisdiction of the Court in the present caseand not
appoint an agent ta represent the Icelandic Government before the Court.
However, before dealing with the arguments of the Government of lceland
against the jurisdiction of the Court, it may be convenient first to inform the
Court about some facts which could throw some light on the genesis of the
Exchange of Notes of 19 July 1961 and on the intention of the parties when
they concluded the agreement contained in these Notes.
II. The History of the Exchange of Notes of 19 July 1961
9. The agreement between the Federal Republic of Germany and the
Republic of lceland contained in the Exchange of Notes of 19July 1961must
be interpreted in the light of the persistent campaign of the Government of
lceland to extend its fisheries jurisdiction beyond the traditional lirnits of
national jurisdiction over the waters adjacent to its Coast. The beginning of
this campaign dates back to the year 1948.
10. On 5 April 1948, the Parliament (Althing) of Iceland enacted a Law
entitled "Law concerning the Scientific Conservation of the Continental
Shelf Fisheries". Under this Law the Minister for Fisheries of lceland wds
authorized to issue "rezu-ations establishing e-.licitlv bounded conservation
/ones uiihi; the liints of the coniincni2l >hclf of Icsl.iiid ahercii illii>hcries
sh:iII be suhject ii)1:cIiind~c r~lci and coniri~l" :inJ tcii,,iie"the ncicrs:ir)
regulations for the protection of the fishing grounds within the said zones"
(Art. 1). According to the declared purpose of that Law, the extended juris-
diction was ostensibly sought for the enactment of conservation measures;
it could not be anticioated at that time that this Law was to orovide the basis
for ihe liiicr ciimpaign uf the Governmeni of lieland to nionopoli7e lisherics
in the uaters aroiind Iceland for Icelîndii fishcrnien. N<I imniedi:tie iiciii)n.
however. was taken bv the Government of Iceland after the enactment of this
Law.
II. On 19 March 1952, after the International Court had rendered ils
Judgment in the Norwegian Fisheries caseof 18December 1951.the Minisler
for Fisheries of Iceland issued the Renulations No. 21/1952 bv which the
tisheries Itmits of Icelxnd uerc crtendci IO 4 mile, meaiurcd fr<irii ipecified
\triiightbïjelines. and al1 firhing dc1ii.it.c~ hy forr-gn \essels trere prohihiied
wiihin ihe 4-mile zone. The regiilxtion, neni in10 etTecion 15 May 1952.TheGovernment of the Federal Republic of Germany did not protest against this
action of the Government of Iceland.
12. On I June 1958. after the failure of the First Conference on the Laiv of
the Sea to reach agreement on the breadth of the territorial sea, the Govern-
ment of lceland anounced its intention to extend Icelnnd's fisheries limits to a
distance of 12 nautical miles from the exisiinr! baselincs around the Coast of
Iceland. In a Verbal Note dated 9 June 1958and delivered to the Minister for
Foreign Affairs of Lceland on 16 June 1958, the Government of the Federal
~eoiiblic of Germanv declared that the intended measure coold not affect
theright of other natrons Io fish in the areas of the high seiis in the respective
zone, and that international law does not entitle any nation to bring parts of
the hirh seÿswhollv or oartiallv bv unilateral actioniinder its iiirisdiction and
thus kpair the rights Of othe; nations which have fished théreiinrestrained
since many decades.
The Verbal Note of the Embassy of the Federal Republic'of Germany in
Reykjavik dated 9 June 1958is reproduced in Annex A Io this Memorial.
13. On 30Jline 1958 the Minister for Fisheries of lceland issued the Regu-
lations No., 7011958whereby the fisheries limits of lceland were extended to-12
nauticÿl miles from newly defined baselinesand al1fishing activities by foreign
vesselswere prohibited within these limits.
The Regulations No. 7011958concerning (he Fisheries Limits OR Lceland,
Stjornartidindi 1958, B. 5, are reproduced in Annex B to this Meniorial.
~ ~ ~Verbal Note dated 16Julv 1958and handed 10the lcelandic Ministrv for
Foreign Affairs on the same &y, the Government of the Federal ~epubÏic of
Gerrnÿny protested against the unilateral step of the Government of lceland
and expressed the urgent hope that the Government of lceland woiild be
ready to enter into negotiations in ordcr ta negotiate an agreement which
would take into account the principles of International Law as well as the
triiditionalrights of al1 nations concerned.
The text of the Verbal Note dated 16 July 1958 is reproduced in Annex C
to this Memorial.
14. The Regulations No. 7011958look elfect on I September 1958.Lnorder
to avoid incidents and Io prevent an aggravation of the dispute, the Govern-
ment of the Federal Republic of Germany issued, on 30 August 1958, a
recommendation to the German Trawlers' Association Io abstain froni
fishing within the 12-mile zone proclaimed by the Government of Iceland.
The German trawlers have followed this recommendation until the settlement
by the Exchange of Notes of 19July 1961 had been reached. No incident had
been reported during that time.
15. The efforts of the Federal Repiiblic of Germany to initiate negotiations
for the settlement of the dispute on a multilateral basis between the States
concerned did not meet with success.The dialogue between the Governmcnts
of the Federal Republic of Germzny and lceland utas resumed by a Note of
the Ministry for Foreign Affairs of Lceland, dated 26 February 1959 and
delivered to the Embassy of the Federal Republic of Germany in Reykjavik.
The text of the Note of 26 February 1959 is reprodiiced in Annex D to this
Memorial.
This Note did no1 respond to the proposal contained in the Note of 16July
1958of the Government of the Federal Republic of Germany for multilateralnegotiations. Instead, it referred to the discussions held in the General
Assembly of the United Nations which were interpreted by the Government
of Iceland as showing an increasing trend in favour of a 12-mile limit, and to
the decision of the Assembly to cal1a second Conference on the Law of the
Sea in 1960.
16. The dialogue was continued by a further Note of the Government of
Iceland, dated 5 August 1959 and delivered by the Embassy of Iceland in
Bonn to the Foreign Ministry of the Federal Republic of Germany on 6
August 1959.
The text of the Note of 5 August 1959 is reproduced in Annex E to this
Memorial.
In this Note, the Governrnent of lceland explained in some detail the position
it had taken at the Conference on the Law of the Sea in 1958 and the reasons
for its policy with respect to the extension of Iceland's fisheriesjurisdiction to
12 nautical miles. The Government of Iceland emphasized that its claim for
an exclusive 12-milesfisheries zone was "a orotilem-of its existence": refer-ine
IO the growing number of States claiming or supporting a 12-miles fisheries
Iiinit. the Govcrnnient of lceland expre~çed the conviction "ihai 1t1sonly a
ouestion of time before the 12-miles~limitwill be acceoted as a eenral rule".
and added that it would greatly appreciate "if the~ovérnment orthe ~ederal
Republic of Germany would consider the special situation and wishes of
Iceland". It is not necessary here to go into the details of the Government of
Iceland's Note, but it should be recorded what the Government of Iceland
had to Sayin this Note with respect to a further extension of its fisheries limits
bevond 12 miles. which it considered to be iustified in view of the oarticular
si(uation of 1cela"d as a coastal State speciafly dependent on its fishéries:
"The Icelandic Government thinks that where a nation is overwhelm-
ingly dependent upon fisheries, it should be lawful to take special
measures, and to decide a further extension of the fishing zone for
meeting the needs of such a nation.
~hisTdea was sympathetically considered by the third committeeof the
Geneva Conference, even though some representatives feared that
such deoarture from the eeneral rule miaht on& the door for abuse. The
lcelandk Delegation, thirefore, proposed tGat a possible disagreement
should be settled by arbitration. With this addition it was carried by the
committee but rejected at the plenary meeting.
A similar thought was, however, expressed in a resolution proposed
by South Africa and carried with 67 votes with none against.
The Icelandic Delegation, however, pointed out that this resolution
could only apply to areas of the high seas outside the generally accepted
fishery limits, as they might be at any given period.
It was necessary that the coastal State can unilaterally include an
adjacent area in its fishing zone, subject to arbitration in case of dis-
agreement."
It is interesting to note that the idea to provide for arbitrationin case of a
dispute arising out of a further extension by Iceland of its fisheries zone
originated from Iceland. The Government of Iceland concluded its Note bv
ur& friendly Siiitc"10 consider its specisl situation and iiccept measurei
they would otherwisc ihink uniiecessxy and unacccptable as a general rule of
International Law". 17. The Governnient of the Federal Republic of Germany replied to this
Note by a Verbal Note delivered to the Embassy of lceland in Bonn on 7
October 1959.
The tex1 of the Note of 7 October 1959 is reprodiiced in Annex F to this
Memorial.
Replying specifically to the part'of the Note of the Government of lceland
cited above, the Government of the Federal Republic of Germany pointedout
that it was prepdred to recognize the special dependency of lceland on ils
fisheries, but could not accept the view of the Government of lceland that the
coastal State had a right Io include an adjacent area in ifs fishing zone unilate-
rally. The Government of the Federal Republic of Germany added that even
on the basis of the Resolution of the Geneva Conference which the Govern-
~e~t~ ~ Iceland had mentioned in its Note and which is identical wiih the
Resolution on speciaÏ Situations relating to ~oastal ~ishenes of 26~April
1958(reproduced in Annex K Io the Application of the Federal Republic of
Germàny), preferential righls of the coastal State in arcas of the high seas
adjacent to its Coast cotild not be established unilaterally, but only by agree-
ment between the coastal State and the other States which have fishing
interests in this area.
18. The expectations that the second Conference on the Law of the Sea,
which ended on 28 April 1960, would reach agreement on the breadth of the
territorialsea and on the fisherv limits were not fulfilled. III oarticular. the
question how far a coastal taie shoiild he entitlcd Io extend its fishiries
iurisdiction and to what extent traditional fishing rights of other States in this
;one would have to be res~ected. remained unietiled. althoueh a trend to-
wards recognition of a 12-miles zone could be observed. ~fler-the failure of
the Conference, the Government of the United Kingdom approached the
Government of lceland to take uo bilateral neeotiations for a setilement of
the fisheries question. Thisoffer ;as accepted by the Government of Iceland
after some hesitation and negotiations started on I October 1960. The
negotiations which .lasted a considerable fime resiilted iiltimately in the
Exchange of Notes of II March 1961. The text of these Notes has already
been reproduced in Annex B to the Application of the Federal Republic of
Germany in this case. The main features of the agreement contained in the
Exchange of Notes of II March 1961were:
(O) a de facto acceptance of the 17-miles fisheries zone by the United King-
dom;
(b) a phasing-out period of three years during which lceland would not
object to fishing by British trawlers in certain areas in the outer six miles
of this zone:
(cl an assurance th;!! a di>puie .ibo~t ihc legaliiy ofany furiher e~iension of
ihe Isclandic fisheries zone co~ild bc i!hm.tied io ihe Intçrn~tional Ci)uri
of Justice by either Party
19. On 13 March 1961. the Minister for Foreign Aîïairs of lceland notified
to the Embassy of the Federal Republic of Germany in Reykjavik copies of
the Exchange of Noies between the Government of lceland and the Govern-
ment of the United Kingdom and, at the same time, informed the Embassy
' of the Federal Republic of Germany about new regulations issued by the
Minister for Fisheries of Iceland on II March 1961 which oroclaimedsome
modifications of the baselines agreed upon in the 0ritish-lcelandic Exchange
of Notes. Thereupon, the Government of the Federal Republic of Germanyapproached the Government of lceland through its Ambassador in Reykjavik
to take up negotiations in order to reach a similar settlement of the fisheries
question. In the aide-mémoire, dated 12 April 1961 and handed by the
Ambassador of the Federal Republic of Germany to the Foreign Minister of
Iceland, the Government of the Federal Republic of Germany made it clear
that it could not regard the 12-miles fisheries zone as well as the enlarged
baselines as valid in law before such an agreement had been reached. The
Government of the Federal Republic added, however, that it was still pre-
pared, in the hope of an early agreement, to recommend to its fishing vessels
to observe the fishery limits claimed by Iceland, including the new baselines,
for thepurpose of avoiding any incidents.
The text of the aide-mémoire of 12April 1961is reproduced in Annex G to
this Memorial.
The offcr to negotiafe an agreement was after some hesitation accepted by
the Governrnent of Iceland which was rather reluctant to enter into nego-
tiations.
20. Negotiations took place in Bonn between 19 June and 6 July 1961.At
their beginning, on 20 June 1961, the Icelandic Delegation handed an aide-
mémoire to the Delegation of the Federal Republic of Germany which out-
lined and specified the concept with which the Government of Iceland ap-
proached these negotiations.
The text of the aide-mémoire dated 20 June 1961 isrepioduced in Annex H
to this Mernorial.
In order to illustrate the atmosphere in which these negotiations were con-
ducted, the following statement in this document should be noted:
"The Icelandic Delegation would submit, in view of the difficulties
involved. that the future settlement of this auestion. as far as German
trawlers ire concerned, should be based on a realistic endeavour which
would take into account the interests ofour twocountries. On this basis
and realizine the eood-will which the Federal Government has shown
in this matter, the-lcelandic Government is now prepared to grant a
period of adjustment to German trawlers in Icelandic waters.. ."
ln addition, the Delegation of lceland expressed the hope that the Govern-
ment of the Federal Reoublic of Germanv would be nreoared to take into
account Iceland's interests concerning its fish imports into the European
Common Market and to ~rovide technical and financial help for programmes
aimed at the diversificafion and strenethenine of the lcëlandic eionomv.
Although the Government of the ~ederal ~e~lblic of Germany did not feil
able to enter into any firm commitment in this respect, nevertheless an under-
standine was reached durine the ne~otiations that after an apreement had
been concluded along the lines of the British-Icelandic ~xchange of Notes,
the Government of the Federal Republic of Germany would by way of a con-
fidential Memorandum declare its oreoaredness to eive svmoathetic con-
sideration to the respective wishes hf ihe Governme& of.1celand. Such a
Memorandum was, in fact, handed to the Arnbassador of the Republic of
Iceland in Bonn on 21 Julv 1961
The text of the Memorandom handed to the Ambassador of the Republic
ofIceland on 21 July 1961is reproduced in AnnexI to this Memorial.
21. The negotiations centred more on these economic questions than on
the terms of the fisheries agreement which were mainly modelled after the MEMORIALONJURlSDtCTlON 73
British-lcelandic Exchange of Notes of .l l March 1961. The lcelandic Dele-
gation tried to persuade the German side to drop the provision for jiidicial
adjudication in case of a dispute relating to a further extension by lceland of
itç ...h.~~-- *uris~ ~tion: the Gernian Deleration. however. insisted on the
inclusion of thc same provision as in the ~ri&h-lcelandic ~xchange of Notes.
On 6 July 1961. agreement was reached on the text of the Notes fo bc ex-
chaneed an~ o~ the aforementioned Memorandum. The text of thesc Notes
has already been reproduced in Annex C to the Application of the Federal
Re~ublic of Germaiiy in this case: the main provisions contained in the Notes
haie already been outlined in parngraph 9 of the said Applicatioii aiid iiecd
not be repeated in the present context. In the files of the Foreign Ministry of
the Federal Republic of Germany no summary records or notes relating
to the discussions between 19 June and 6 July 1961can be found. Li caii be
gathered from scattered drafts and reports of the German officiaiswho
were in charge of the negotiations, chat the German delegation tabled a draft
wh~.~-followed the wordinrr o- the nritish-lcelandic Exchanze-of Notes riither
closely. It is reported that the Gernian delegütion requested the samc three
years phasing-out period Iceland had granted British fishing vessels, froin
ih~-d~fe the arrangement u,ould t;ike effect. Later. howevcr. the delesations
agreed on the saniedate for the end of the phasing-out period which h&l been
fixed in the British-lcelandic Exchange of Notes, namely 10 March 1964,
because the Icelaiidic side very much insisted on this point. This resulted for
the German fishing vessels in a shorter phasing-out period of approximately
two yéÿrsand eight months only.
22. After agreement had been reached between the delegations of both
Governments on 6 July 1961, but beforc thc Exchange of Notes wüs effected
on 19July 1961. the Government of lceland iiiformed the Government of fhe
Federal Republic of Gerniany that itwoiild be necessary to seek the consent
of the Par1i:iment of Iceland (Althing) and that a respective provision shoiild
be added to the Agreement. The Government of the Fedcral Repiiblic
conceded to this request of the Government of Iceland; therefore, the Ex-
change of Notes was accompanied by an Exchange of Letters by whicli both
parties look note of the fact that the agreement contained in the Excliange of
Notes would reauire the consent of the Althing and would be laid before the
~lthlng diiring iiine\! Sci,i<iii in ihc ;ii.iunin of 1961,hi11ih;it. iir\~errhelris.
the hgrernieiit s.<i~lJ lakc ctïcct irilnic.liatcl).
The text of the two Lelters exchanged on 19 July 1961 is reproduced in
Annex K to this Memorial.
The proccedings in the Parliament of lceland with respect to the Exchangc of
Notes look considerable time. II was not before 28 March 1962 that the
lcelandic Althing gave its approval.
23. That the two Agreements with the Unitcd Kingdom and with the Fcd-
eral Re~ublic of Germanv bv which Icclünd had siicceeded in consolidating
its posiiion and had evtn sLcured a de facto recognition of its 12-inil&
fisheries zone, werc regarded in Iceland rather a success than an onerous
burden was evidenced by subsequent statements of members of the lcelandic
Government. When, in 1963, the Minisfer for Foreign Alfàirs of Iceland, in
the lcelandic Parliament, defended the Agreement against criticism by the
opposition, he emphasized that the II-miles limit, the recognition of which
had been achieved by the Agreement, was not the final goal and that the
Agreement did not prevent Iceland from further implementing the Althing
Resoliition of 5 May 1959 regarding the further extension of the fisheries-74 FlSHERlES JURISDICTION
juri5diction of Icelond over the wholc continental shelf. ReferrinIO the clause
which ohliged Iceland io accept the)urisdiction of the IniernaiionillCourt of
Justice. he made the followine remark: "That we have committed ourselves
to actaccording to the rules if international law in my view and in the view
of the Lcelandic Government has been done in conformity with Our Icelandic
legal tradition." (Cited from a report of the Ambassador of the Federal
Republic of Germany in Reykjavik dated 8 May 1963.)
24. On 10 March 1964, the transitional period, during which British and
German vesselswere still allowed to fish within the outer 6 miles of the IZ-
nliles hhcries ?one. came to an cnd This day ws, hsiled in Iceldnd as a ddy
of visiury; memberr of the Go\crnmeni 'of Iccldnd look the oppi)riunit). to
emphasire thcs faci in public addresses io rhc Iceland~cpcople On II March
1964. in theIcelandic pdpers a siairment of thc l'rime nMiiiister of Isel;ind war
published which coniaincd ihc follo\r,ing sentenceson the 1961Agreement
"This day musc be regarded as a day of rejoicing. We have not yet
attained Our final goal, but the 1961 Agreement has opened to us the
only practical way to attain that soal.
It has sometimes been asserted that we had given away rights without
compensation.,The provisions of the Agreement, however, are in full
harmony with the Resolution of the Althing of 5 May 1959. We cannot
extend oiir fishery zone over the whole continental shelf unless inter-
national law allows us to do so. In the 1961Agreement, we have declared
that we shall continiie towork for the recognition of the Resolution of
the Althing by the international community. Eventually the International
Court of Justice will have to decide on the validity of Our claim. The
agreement on the jurisdiction of the International Court of Justice isa
safeguard which securesthat no psrty goes further than international law
permils and which prevents that a party resorts to the use of force.. .
Later it will turn oiit what an advantaee it will be for the lcelanders that
-
the Intcrnationül Court of Jiirtice rvill decide on possiblc dirputcs about
ciur rights over the continental shelf." (Translation from the II March
1964 edition of the Morgiorblodid.)
III. The Validity and Applieability of the Agreement
Contained in Paragraph 5 of the Exchange of Notes of 19 July 1961
1. THE VARIOUSARGUMENTS OF THE GOVERNMENT OF [CELAND
AGAINST THE VALIDITY AND APPLICABILITY OF THE 1961 AOREEMENT
25. The Government of lceland has, in ils public statements as well as in
its communications addressed to the Court. out forward various areuments
in support of its contention that the .igreement embodied in paragraph 5
of the Notes exchanged on 19July 1961-hereaftel referred to in short as the
1961 Agreement-were no long;; in force.
Although the arguments advanced by the Government of Iceland in this
respect have not been brought forward in the proper form, namely by way of
pleading them before the Court, the Federal Republic of Germany will,
nevertheless, deal with al1these arguments.
26. It is somehow dificult to grasp the precise juridical meaning of the
arguments pu! forward here and there by the Government of Iceland in ils
various utterances; the statements have been oscillating between diiïerent lines of argumentation and the language used has not always been couched in
precise legal terms. Therefore, it seemsnecessaryat first to list al1 the various
arguments used by the Government of Iceland:
27. The first indication that the Government of Iceland contemnlated the
reiudiation of the Agreement of 1961 was contained in the Policy tat te ment
of the Government of lceland made on 14July 1971when ilhad taken office
after the elections of that year. There il was stated that the Fisheries Agree-
ments with the United Kingdom and the Federal Repiiblic of Germany would
be "terminated". Il was by then not quite clear whether the intention 10
terminale the Agreement of 1961 related only to the substantive provisions
with respect to the 12-miles fisheries limit or whether il would extend to the
compromissory clause contained in paragraph 5 of the Agreement as ~ell.
28. The intentions of the Goveriiment of lceland were soon made clear bv
the aide-mémoire handed to the Ambassador of the Federal Republic if
Germany in Reykiavik on 31 August 1971 : In this document the Government
of lceland declarëd that in ils opinion "the object and purpose of the provi-
sion for recourse to jiidicial settlement have been fiilly achieved". In the tïlks
which followed between a German and an lcelandic Delegalion on 8 and 9
November 1971 in Bonn the leeal adviser of the Foreign Mi-istrv of lceland
ekpl.tincil thdi. i~iihe sieu of rh~,C;diernmcnt of Iccl.inJ. pclragrrlph< of ihe
L\ch:inge oI NOIL., of IYOI \rhcli ct>ni:iin:.l the coiiipronii,*.)cl si.,^,. Ii.id
heeri ihc nr:icwiiLIhs Iccl.1n.1foi the rccoriiiiioi,Iihc 12-in les firl~cr,Ilmit
by the Fiderai ~ep~iblic of Germany at &at lime, and as today the Ï2-miles
fishery limit was a matter of course, the Exchange of Notes had now achievkd
ils ournose.
29. on 9 November 1971,the Prime Minister made arather comprehensive
statement in the Parliament (Alihing) of Iceland with respect to the grounds
for terminating the 1961Agreement.
The following quofations are taken from the brochure Icelatrdo~rdrlreLaiv
of the Sen, published by the Government of Iceland, Reykjavik 1972,
pages 34-36.
He stated that the Agreements with the Uiiiied Kingdom and the Federal
Repiiblic of Gerniiiny would be terminated because these Agreements "had
already attained their main objective as both nations had fully benefited by
the prriod ofadjustment which they were given by the Agreements", andthat
the obligation 10 refer any dispute relating 10 the extension of the fishery
limits to the International Court of Justice in perpetuity, would be an "un-
natural restriction which clearly the lcelanders need to terminale". After ad-
mitting that the Agreements with the United Kingdom and the Federal Re-
nublic of Germanv contained no orovision for terminalion the Prime Minister
of lceland continued that lceland could "not agree that they were made for
eternity", and that it mus1 be possible "10 terminate them by giving proper
notice". The Prime Minister then went on to say that the Agreements were
made "under extremely difficult and unusual circumstances", and that "al1
the circumstances are completely changed from whal they were when the
Aereements were made. both as regards fisheries and fishery techniaues. as
well as legal opinibn o'n fisheries jurisdiction", and that these ~greements
would not have been made if the Government of lceland had "then known
how these matters would evolve".
'O. On 15Fcbruur) 1972the IcelxnJic Parliainent (,\lthiligl :I11sKejol.iiion
by which II rcsol\ed thït the tishçry Ilmit> should he c\tendcd to 50 ni~lej as
froni I Scptenibcr 1971, rcquçsicd the Government of 1cel.iiid to inf<irniaeain the Governments of the United Kinrdom and the Federal Renuhlic of ~ ~-~~.~~. .~
Cermaiiy that "becduse of the vital interests of the Nation and owing to
changed circumstances the Notes concerning fishery limits exchanaed in 1961
are no longer applicable and that their provkions do no1constitiitéan obliga-
tion for Iceland".
31. In pursuance of this Resolution the Government of lceland, by aide-
mémoire of 24 Febrtiarv 1972. informed the Government of the Fcdcra~ ~ ~
Republic of Germany of its dccision to issue new regulations providing for
fishery limits of 50 miles to becomeeffective on 1 Seplember 1972as set forih
in the Resolution of the Althine ad-oted .~ 15 ~ebruarv 1972.and reiter,t~ ~ ~~~~-~~~ ~ ~ ~
in this aide-mémoire that in the opinion of the lcelandic Government "the
obiect and purpose of the ~rovisions in the 1961 Exchanee of Notes for re-
coiirse Io iudicial settlemeni in certain eventualities have bien fullv ac~,~ ~ ~ ~ ~ ~ ~
and that Ïhe Governmen~ of Iceland, thcrefore, "considers the provisions of
the Notes cxchanged no longer applicable and consequently tcrminated".
The text of the lcelandic aide-ininioire of 24 February 1972has been repro-
duced in Annex H of the Application of the Federal Repiiblic in this case.
In the accom~anvin~ Statement read bv the Minister for Foreign Akirs of
Iceland when hé delivered the aide-mémoire Io the Ambds~dor of the
Federal Republic of Cerniany, the Foreign Minister of Iceland added that
this aide-ménioire should be iiiternreted "shoiild the occasion arise as im-
plying al1arguments relative to th; rules of international Iaw in this field in-
cluding al1aspects of the tcrmiiistion of agreements in the light of the aide-
mémoire of 31 August 1971,as wcll as the present aide-mfmoire".
The text of the Statement of the lcelandic Minister for Foreign Afiirs of
24 February 1972has beenreproduced in Annex 1to the Applic;ition of the
Federal Repiiblic in this case.
32. After the Federal Repiiblic of Germany had filed its Applicdtion in the
Registry of the Court on 5 June 1972,the Government of lceland addressed a
letter dated 27 June 1972to the Court whereby it objected to the jurisdiction
of the Court and stated that itwould no1 appoint an agent to represent the
Government of Iceland before the Court. In this letter, the Minister for
Foreign Afïairs, alter referring to the aide-mémoires of 31 August 1971and
24 February 1972 as well.as to the resolution of the Althing of 15 February
1972, reiterated llial the 1961Agreenient "was no1 of a permanent nature",
that "the obiect and Durnoseof the 1961Aereement had beenfullv achieved". , ~ ~ ~ ~
and "that the 1961 ~xcharigc of Notes was no longer applicable and termi:
natcd"; he added that the Government of lceland "considering that the vital
interests of the people of lccland are involved, respectfully infarms the Court
that it is not willing Io confer jurisdiction on the Court in any case involving
the extent of the fishery liniits of Iceland".
33. These arguments covcr a rather widc field of various lccal erou- - for
terminatirif an~nternxiional Iigrcenient. The). jlii>ii. the dcbire of the Govern-
[lient ol Isi4;ind laigel relcaqed froni an undrrtakirig irIiisl11regiirdj no\< :is
unnecessarily restraining ils freedom of action; but al1 these arguments are
merely assertions, no1 accompanied by any fact which might sustain the
validity of any one of these arguments advanced against the continuing
validity of the 1961 Agreement. MEMORIAL ON JURISDICTION 77
34. If one tries to analyse the juridical essenceof the various arguments of
the Government of Iceland, these arguments can be classified under the fol-
lowing headings:
(a) arguments which question the initial validity of the 1961Agreement;
(6) arguments which assert a limited duration of the 1961Agreement;
(cj arguments which assert grounds for terminating the 1961~greement;
(d) arguments which assert the non-applicability of the 1961Agreement be-
cause "vital interests" are affected.
The various arguments of the Government of lceland will be examined in this
order in the foilowing paragraphs. It will be shown that none of these argu-
ments can be sustained, and that the 1961Agreement is still valid and governs
the relations between the Piirties to this dispute.
2. THE LNITIALVALIUITY OF THE 1961 AGREEMENT
35. By alleging that the Exchangc of Notes effected on 19 July 1961 hdd
taken place "under extremely difficult circumstances" the Government of
lceland seems to intimate that the conclusion of the 1961 Agreement had
taken olace. on the oart of the Government of Iceland. under some kind of
pressu;e and not hy'its own free will. However, the Government of Iceland
has failed in so far Io explain to what "difficiilt circumstances" this vague
formulation refers, and has not alleged any fact which might show to what
kind of pressure the Government of lceland had been exposed hefore or
during the negotiations which led tu the conclusion of the agreement con-
tained in the Exchan~e of Notcs of 19Julv 1961.
-
36. The hi,iory or ihc 1961Agrccniciii \r'ch h.is becn rle,zribed in wnie
deiüil iri par,i~r:iph\9 10 24 of lhis hlr,m<>r~<~ l. plsiii esidcniï olihe faci
that ihi, Agreemeiii h:id been frcel? negi>iiaicd hcii\.cen the Go\ernmcnt of
Iceland 2nd the (io\,erninent of ihc Federal Kcpiihlic or Gerniany on the
has~sof perfecr eqiialii). and frccd,om ofd~i\ion on hoth rides. In upport id
.
this the following facts should be specifically mentioned:
37. Rrsr: From 1 Septemher 1958, the date on which the Government of
Iceland had put into effect the Regulations No. 7011958ivhich prohibited al1
foreign fishing within the 12-miles limit, until the date on which the 1961
Agreement had entered into effect, the trawlers registered in the Federal
Repiiblic of Germany voluntarily sbstained, on the recommendütion of the
Government of the Federal Republic, from fishing activities within the
12-miles zone claimed by Iceland. The Federal Republic had not taken any
steps to continue to exercise its traditional fishing rights in the exiended
fisheries zone, which were illegally impaired by the new lcelandic Regulations.
Instead the Federal Reoublic resorted onlv to a diolomatic protest in order to
reserve its rights in vie& of the unilateralénforce&ent meaiures taken by the
Government of Iceland. This attitude of the Federal Republic and of its
trawler fleet could not possibly produce any pressure on the Government of
Iceland.
38. Second:Nearly three years were needed until the Government of the
Federal Republic persuaded the Government of lceland to agree on negotia-
tions for a settlement of the fisheries question. During this lime Iceland had
the full benefit of ils unilaierally proclaimed exclusive fisheries zone. The
attitudeand the various statements of the Government of lceland during this
iinie coniained in ihe h'otes anil aide-mimoires meni~oned 111paragrüphs
16 2nd 17 of lhls hlrn~orial rhoiied that the Goi,ernmcnr i)rIcel;inrl imsmarking lime in the hope that in the United Nations or at the Second Confer-
ence on the Law of the Sea the trend for reconnition of a national 12-miles
lisheries 7une uould eventually materialize in10 ï recognized rule of Inter-
national Lw. Itu,asonly aficr itheiamccvident in 1960that an intcrnattcnal
consensus on such a zone could not vet be reached that the Government of
Iceland reluctantly consented to negotiations for a bilateral settlement in
order 10obtain some form of recognition of ils claim for a 12-miles zone from
the two States whose traditional fisheries had been ~rimarilv aiïected bv the
Icelandic mcïsure. If there \rere sonie c~riumstancss iihich put some kinJ of
prersure on the Governmçni of Icclzind ta>negottïte. thche nere no8 aciioni
of the Fedrriil Kepublis of Gerniany; it \%,asraihcr the siate of intern:iiional
Icgal opinion ilIhat ttmî iihich made the Go\crnnient of Iceland realirc ihai
genrral intcrnitiun~l recognitton of 11sclnim fur ;ln c~rliisivc firheries zone
was no1obtainable.
39. Thid: 11was plainly visible that the Government of lceland approached
the negotiations on the 1961 Agreement with the idea to make a deal in the
sense that the Federal Republic should pay for a settlement of the fisheries
auestion with someeconomicconcessions~~his had been the main iss~ ~~~the
discussions leading Io the 1961 Agreement, and the Government of Iceland
succeeded in extracting from the Government of the Federal Re~itblic a
declaration of good will contained in the Memorandum of 21 J;I~ 1961
(mentioned in para. 20 of this Memorial) which went halfway to satisfy
specific wishes of the Government of lceland with respect to ils fish imports
inIo the Federal Republic and financial and technical help for the development
of ils industry. It follows from this that no economic pressure of any kind
was exercised by the Federal Republic of Germany; on the contrary: the
Federal Republic had to ofFer special economic advantages to lceland in
order to get the same settlement of the fisheries question ashad been agreed
upon between the United Kingdom and Iceland.
40. Forrrrh:It should be noted that ithad been originally an Icelandic idea
that in case of a further extension by lceland of its fisheries jurisdiction,
disputes on the international validity of such extension should be sub-
mitted to arbitration (cf. the lcelandic Note of 5 Aurust 1959. mentioned in
para. 16 of this ~emorial and reproduced in ~nn& E to this Memorial).
This being so, il would be rather strange 10 intimate. as the Government of
Iceland sëems inclined Io do. that theaareement on the iurisdiction of the
International Court of ~iisticécontained-in paragraph 5 if the Exchange of
Notes had been an undue advantage extracted from the Government of Ice-
land by some undefined kind of pressure.
41. Li follows from the considerations in paragraphs 35 to 40 of this
Memorial that there is no valid ground to question the initial validity of the
Exchange of Notes of 19July 1961. Itis therefore respectfully submitted that
the agreement contained in paragraph 5 of these Notes constitutes a valid
agreement which conferred jurisdiction on the Court with respect to any
dispute relating 10 the extension by Iceland of its fisheriesjurisdiction beyond
the 12-miles limit.
3. THE DURATION OF THE 1961 AGREEMENT
42. By asserting that the "object and purpose of the 1961Agreement had
been fully achieved" and that, thereiore, this Agreement was "no longer
applicable" and "terminated", the Government of lceland proceeds from the80 FISHERIEJSURlSDlCTlON
and from their context. The provisions contained in these Notes can be
clearly divided intotwo sets:
(a) Those provisions-as paragraphs 3 and kwhich had orily a transient
character. By these provisions fishing vesselsof the Federal Republic of
Germany were allowed to fish for a transitionalperiod of nearly three
years within areas of the outer 6 miles of the 12-miles fishery zone of
lceland until 10 March 1964. These provisions clearly expired at the
fixed date.
(b) Those other provisions. as paragraphs 1, 2 and 5, which are capable of
application for an indefinite time. Paragraphs 1 and 2 siill require the
Federal Re~ublic of Germanv not to obiect to the 12-miles fisherv zone
claimed b; lceland and to ihe baselinës from which it is meisured,
while on the other hand lceland is required to observe the conditions
contained in paragraph 5 in case of a further extension of ifs fisheries
zone.
46. It cannot be argued that the obligations under (b) are today devoid of
their orieinal vuroose: on the contrarv: if one comoares the settlement con-
tained in-paragraphs 1and 2ofthe 196i Exchange of~otes with the European
Fisheries Convention of 1964, the obligation contained in the 1961 Agree- \
ment still eoesfurther than is cenerallv recoenized in the Eurooean ~isheries
convention; moreover the obligationof lc&nd contained in paragraph 5 of
the Exchange of Notes could not become operative before lceland extended
its fisheries zone bevond the 12-miles limit. It has been lceland that has drawn
most octhe benefit; from the 1961 Agreement during the last 10 years, and it
is only now that the other part of the Agreement, namely paragraph 5 of the
Exchanee of Notes comes into ooera.~~n ~-d mav orovidc someor- -ction
for the Federal ~epublic of Germany. Under theseckcumstances it'is difficult
to seehow one could possibly say that the Exchance of Notes of 1961and in
particular the agreement on Lhe~urisdiction of thiCoiirt contained in para-
graph 5 of these Notes are now devoid of any purpose. The Government of
Iceland seemsto take a rathcr one-sided view if it tries to assert that the 1961
Agreement has served its purpose because, in view of the trend towards the
recognition of a 12-miles limit of the territorial sea, lceland would probably
draw no more benefits from the Agreement in the future.
47. If we take oarasraoh 5of the Exchanse of Notes of 1961alonefor itself.
it cannot be intérpreted'as having the onïy purpose to prevent further ex:
tension of the Fisheries Jurisdiction by Iceland for a limited period, say 5, 10
or 20 years. Neither the travaux préparatoires nor the text of this paragraph
nor the circumstances under which the Notes were exchanged on 19 July
1961, could support the interpretation that such was the intention of the
parties when they concluded this Agreement. As has been rightly remarked
during the discussions between the Government of lceland and the Govern-
ment of the Federal Republic by the Legal Adviser to the Foreign Minister of
lceland (see above para. 28), the acceptance of jurisdiction of the Court in
case of a dispute about the further extension of the Icelandic fisheries limits
was the price paid by Iceland for the readiness of the Federal Republic of
Germany to tolerate the 12-miles exclusive fisheries zone which at that time
was by no means generally recognized, and to abstain from exercising its
traditional fishing rights in this zone for the future. It was the interest of the
Federal Republic to be protected in the future against further unilateralex-
tensions of the lcelandic Fisheries jurisdictionand to get some guaranty that MEMORIAL ON JURISDICTION 81
such an extension would only take place in accordance with the development
of eeneral international maritime law.
y$, Ii foll<ius froiii ihc tent oi pdrsyraph 5 of the Exchange of Noics of
1961 th.ii both püriics çtdrled frdin ilie bdris ihdi ihc Goveriiriicni of Iccldnd
uould ir) io extcnrl ils fishcrics jiirisdisiion heyond the 12-milei limit in oc-
corddncç u,iih ihc gcneral trcnJ ili inicriiational maritime law. Therc wa.; no
indicaiion neiilicr fronl ihc discussion\ u hich led 10 ihis Agrcenienr nor from
the text of paragraph 5 of the Notes exchanged that the purpose was to
---ve~~-th-~~-v-r~ment of lcel~nd~ ~ ~ anv action in this direction. or. to , ~.
put itinto more juridical terms, to create a so-called "stand-still" obligation
for the Government of Iceland. Itwas rather the purpose of paragraph 5 to
-. .~th~-F-d~~~~ Re~ublic of Germanv the rieht to challenee such anexiension
ifit considered it to be contrary to t6e stateof international lakat that time.
Both parties were fully aware that the international maritime law was in 8
st:ite if chanee and that it mieht develoo in such a wav as to allow Iceland to
-
estendits lisheriesjuri~diciion heyond ihc 12-niilss l:m;i in rhc future II is no!
the ohicct and purnose of~ardaraph 5ofihc thchangeof Notes io prevent Ice-
land f;?m exeicising anyiuchright ifit came into ëxistence; it was rather the
purpose and objcct of this Agreement to provide in such a case for a devel-
ooment of the law by consent between the parties concerned, or, in caseof a
d;jpuic, by imp~riial-adj"dicdtii>n in accordlince wiih Article 33of the Uniicd
Sai~onï Chsricr. Therc is noi ilie slighicrt indication in the texi of pdragraph
5 afthc Cx~hdnccof Noics of 1961rhdi ihc p.iriics inicndcd th!\ pr<icedi.re to
apply only for alimited period of time; this is the more so as the parties did
not, in contrast to paragraphs 3 and 4 of the Exchange of Notes, provide
for any time-limit.
49. Ln his letter addressed to the Court, dated 27 lune 1972, the Minister
for Foreign ARairs of Iceland emphasized several times that the 1961Agree-
ment was, in the view of the Government of Iceland, not of a permanent
nature. but he did not add anv facts or considerations which might throw
some light upon the question for what period the parties had inteided that
settlement to remain in force. Fortunately, it is possible to answer this ques-
tion on the basis of the text of naraeranh 5 of the Notes exchanaed on 19July
1961without being forced to have ricourse to subsidiary meanÉof interpreta-
tion: The Federal Republic of Germany does not assert that the Agreement
contained in paragraph 5 of the Notes exchanged is an Agreement which was
meant to remain in force "in perpetuity". The text of this provision clearly
indicates that its application was intended to be limited to the efforts of the
lcelandic Government to imolement the Althing Res.lution of 5 May 1959
relaiing 10 the c\tension of the fi>hcries jurisJiciion of Icelsnrl. ihar i.10 sas,
io ïny aciion or ihe Icelandic u'aivernmrnt 10 exrend ils zons of fisherie.,jiiris-
diction bevond the 12-miles limit to the seaward boundarv of its continental
shclf. but (-ml) to such rrct~on Whilc the scijpr oftheagreci~ent on ihejurisdic-
lion of the Couri is ihcrcby Iiiiiited rorionr niorrrtue ver) strictly. the applica-
bilitv of this nrovision is not liniited ratione tem~oris: itcould not nossibly
ma)<ean) ditT;rcncc nhether ihc Go\,ernrnent of lieland woulrl harcc;\\icnn.icd
ii\ fishcrie\ jiiri*diiiion 5 )wr\ afier the c,~ncl.is:on of thii arrdnycnlent,
or IU or 20 ,e;irj afier. Othcruise ihc underi.ikinc 2onr;iincd in pardgraph 5
of the ~otesexchanged on 19July 1961would have been withoÜi an? value.
50. It followsfrom the foregoing considerations that there is no basis for
the contention of the Government of Iceland that the 1961 Agreement has
already achieved ils objeci and purpose and should, therefore, be considered
as terminated.82 FISHERIES JURlSDlCTlON
51, By arguing that the 1961 Agreement was not of a permanent nature
and that changed circumstances and vital interests of Iceland made it neces-
sary for lceland to terminate the 1961Agreement, the Covernment of Iceland
seems to assert a right of unilateral denunciation of the 1961 Agreement
although itstill is not clear on which of these different grounds the Govern-
ment of lceland wishes to rely, probably on al1of these groiinds. Therefore, it
will be necessaryto examine al1these points.
(a) The Right 10 Denoioice arr I,rrernaiiona/ Agreemetit conlaiiiing
no Provision concerningifs Terrnii~atio~i
52. As the 1961Agreement contains no provision which admits the renun-
ciation of this Agreement by one of the parties, the question may be posed
whether, nevertheless,each party has a right to denounce the Agreement after
a reasonable time and giving reasonable notice to this eiïect. This question
raises important issues such as the principle of porta snrrtserrai~daand the
methods of treatv internretation. In essenceit is orimarilv.a au.stion of the
interpretation oi the iarticular agreement whetiier the obligations of the
parties may be construed in such a way as to allow each part~.a renunciation
of the agreement.
53. Article 56 of the Vienna Convention on the Law of Treaties of 23 May
1969 does not offer much help to solve this question in this case, not only
becauseit is not applicable to the 1961Agreement and it is doubtful howfar it
constitutes a codification of existing international law in al1 its parts, but
foremost because Article 56 makes the answer again dependent upon the
interpretation of the particular agreement without giving any guidelines for
interpretation. According to Article 56, a treaty which contains no provision
regarding its termination and which does not provide for denunciation or
withdrawal is not subject to denunciation or withdrawal, unless:
(a) it is established that the parties intended to admit the possibility of
denunciationor withdrawal; or
(b) a right of denunciation or withdrawal may be impliedby the nature of the
treaty.
While the alternative (a) is certainly in conformity with the existing rules of
customary international law, it is doubtful whether alternative (b) represents
a generally recognized riile of customary international Inw ~inlessreference to
the nature of the treaty is to be understood only as a siibsidiary means of
interpretation in order to ascertain the otherwise undisclosed intention of the
parties and if such an intention of the parties may then be cledrly inferred
from the nature of the treaty.
That was also the.opinion of Lord McNair, Lniv of Treaties, 1961, p. 511,
when he wrote: "Just as there is nothing juridically impossible in the
existenceof a treaty which is incapable of termination except by the consent
ofal1parties, so also there is nothingjuridically impossible in the existence
of an implied term giving a party the right to terminate it unilaterally by
denunciation. It is a question of the intention of the parties which can be
inferred from the terms of the treaty, the circumstances in which it was
concluded, and the nature of the subject-matter."
54. It is important to note that the International Law Commission had, in
its draft Articles on the Law of Treaties, only proposed the alternative (a)becausethemajority of the Commission did no1 regardthe nature of a treaty
without recurring to the intention of the parties, as a suficient basis for
aliowing a party to denounce a treaty unilaterally.
SeeSummary Record of the 689th Meeting of the International Law Com-
mission (29 May 1963), Yearbook of the Inrernorional Law Commission
1963, Vol. 1, pp. 99-106, and of the 709th Meeting (27 June 1963), ibid., pp.
239-241.
The tex1 adopted at the 717th Meeting on 9 July 1963(ibid., p. 294) read
as follows:
"A treaty which contains no provision regarding its termination and
which does not provide for denunciation or withdrawal is not subject to
denunciation or withdrawal unless it avvears from the character of the
..
treaty and Irnm the circumst:inccs tif ils conclu\ion or the \tatcmcnts of the
parties thal the parties intendcil to admit the possibility oa denunciation
or withdrawal".~
After re-examination of this tex1at the 829th Meeting (12 January 1966),
Yearbookofrlie Jnrrrnarional Law Commission1966, Vol. 1, pp. 43-48, the
Commission adopted the following shortened tex1 in its 841st Meeting on
27 January 1966 unanimously (ibid., p. 122):
"A treaty which contains no provision regarding ils termination and
which does not vrovide for denunciation or withdrawal is not subiect to
denunci3rion or uithdraiial unlesr it other\iise appedrs that the parties
inlended IO adniil the possibilit> of denunciation or withdraual."
55. Thus, the view prevailed arnong the members of the International Law
Commission that the existence of a right of denunciation or withdrawal from
the treatycould no1beimplied from the character of the treaty alone, and that
such right may not be implied iinless il appears from the general circum-
stances of the case that the parties intended to allow the possibility of uni-
lateral denunciation or withdrawal.
Sec the Commcniary of the International Law Commission to Article 53
(ivhich later hei:imc Article 56ofthe Vicnna Coni~cntionJofitsdraft Articles,
contained in the Reoort of the International Law Commission 10 the
United Nations ~eieral Assembly, Ycarbook 1966, Vol. 11: "(4) Some
Members of the Commission considered that in certain types of treaty such
as treaties of alliance. a rieht of denunciation or withdrawal after reason-
. --
able notice should be irnplied in the treaty unless there are indjcations of a
contrary intention. Other members took the view that, while the omission
of any provision for it in the treaty does no1 exclude the possibility oim-
plying a right of denunciation or withdrawal, the existence of such a right
is not to be implied from the character of the treaty alone. According to
these rnemhers. the intention of the oarties is essentiallv a auestion of fact
to he determincd no1 merel) by teferince ta the chorïcier of the treaty but
by rcfcrence IO 311the cirsumrtsnccr of the case. This view prevailed in the
~ommission.
(5) The article states that a treaty not making any provision for ils
termination or for denunciation or withdrawal is not subject to denuncia-
fion or withdrawal unless 'it is established that the parties intended to
admit the possibility of denunciation or withdrawal'. Under this rule, the
character of the treaty is only one of the elements to he taken into account,
and a right of denunciation or withdrawal will no% be implied unless it appears froni the general circumstances of the casethat the parfies intended
toallow the possibility of unilateral denunciation or withdrawal."
56. When the United Nations Conference on the Law of Treaties in its
First Session (26 Maich to 24 May 1968) at the Committee stage discussed
this Article as proposed by the International Law Commission, several
amendmeiits werc tabled to the elfect that a right of denunciation or with-
drawal could be implied already from the charactcr of the treaty alone;
among them was the amendment submitted by the United Kingdom
(A/CONF.39/C.I/L.31I) according to which at the end of that Article the
following words should be added:
"...or unlessthecharacter of the treaty issiich that a right ofdenunciation
or withdrawal may bc iinplied".
In the discussion on the Article o~.~os.d bv the International Law Commis-
sion and on the amendments submitted thereto opinions were very much
divided as Io the advisability to allow the nature or character of a treaty 10be
an indeoendent basis for an-imnlied rieht of den~ ~iati~ ~which did noi make
it necessaryto establish the exktGce if ajoint intention of the parties to thir
eiïect. On the one hand, several delegations were reluctant to admit the
oossibilitv of denouncine a treat~~ too easi~.~sinc~ ~hat would endaneer ~he
Stabiliiy of treaties, while other delegations stressed the necd for allowing to
terminale treaties which had lost their DurDose and, therefore, advocated a
more flexible riile: other del~-at~~ ~ ~ointed to the diiiicultv to ascertain the
intention of the parties. The Unitid Kingdom ~ele~ition defended its
amendment by argiiing that its amendment purportcd to strike a balance be-
tween the bindinli character of a treatv and the necd Io terminale il in certain
circuii1,iances; uli Ic thc it:ihil.iofirr.:itichad icihc cn5iirr.diiiihc inicreii\
uI'inir'rii:~t~uiisl peiie anil sec.irtty. "pro\'ijihad IO bc III~JC lur p.irt.cs to
withdraw from treaties which. ilthoueh of indelinitc duration. ~were in-
trinsically temporary in charac<er", andyhat it should be taken into account
that "in certain casesthe character of the treaty was the only guide".
Seediscussion al the 58th (paras. 18-38)and 59th (paras. 1-56) Meetings of
the Commiitee of the Whole, United Nations Conference on the Law of
Treaties, First Session, Oficial Rrcord~ (UN Piibl. E 68.V.7), pp. 336-343.
When the amendments were put to the vote, the United Kingdom Amend-
ment was adopted by the narrow margin of 26 votes to 25, with 37 absten-
tions.
See ibid., p. 343.
57. When the amended Article which had been slightly redrafted by the
Drafting Committee of the Whole, was again submitted to the Committee of
the Whole, the Finnish Delegation asked for a separate vote on the provision
now contained in subparagraph I (b) of Article 56 according to which the
right of denunciation or withdrawal might be implied solely from the nature
of the treaty, in the hope that the previous version ofthat Article as proposed
by the International Law Commission would thereby be restored. However,
subparagraph I (6) was approved by 56 votes to 10with 13abstentions.
See Summary Record of the 81st Meeting of the Committee of the Whole
(22 May 1968), paras. 11-17, United Nations Conference on the Law of
Treaties, First Session, Ofici01 Records, p. 477.
Io the plenary meeting of the Conference doubts were again expressedagainst the advisability of allowing to infer a right of denunciation from the nature of
the treaty. The Australian Delegation which had raised this point, did not
however press for a separate vote, and Article 53 was then adopted without
change in the version as it had already been adopted at the Committee Stage
of the Conference.
See Summary Record of the 20th Plenary Meeting (12 May 19691,paras.
83-88, and of the 21st Plenary Meeting (13 May 1969), paras. 1-9, United
Nations Conference on the Law of Treaties, Second Session, Oficial
Records,pp. 108-110.
58. Thus, it seems rather doubtful whether, under general international
law, the nature of an international agreement alone can be recarded as a
suflicicnt bssis to asTume :in inil>licd right tu denounce th31 ;igréemcnt uni-
I~terilly Ilowever. it\vil1iiot be nrcesary in the present cjse to ducll on 1h.s
intricate question of treaty interpretation any longer; even if one would
accept the rule contained in Article 56 of the Vienna Convention as being now
part of general international law, no other result will follow in the present
case: As far as the 1961 Agreement is concerned. neither can it be established
that the parties intended 6 admit a unilateral right of denunciation nor is it
possible to infer siich a right from the nature of this Agreement.
(b) The Narrrreof rhe 196/ AgreemeiilProvi(1esrroEasis
for a,>Impli<,dRiglrtof Denunciarion
59. If it woiild be assumed. for the ouroose of areument. that the soecial
. .
nature of a treaty nlone, without reqiiiring the proofof a respective intention
of the parties, could in certain casesimply a right of either Party 10terminate
such a treatv unilnterallv al its discretion. then the auestion irises whether
fhere are a& elements in the 1961 ~greekent which'would justify such an
interpretation. For the DurDoseof the examination of the 1961Agreement in
this resoect. we have toitart from the followine basic conside~ ~i~n~:
60. ~he a~su&~tion that the nature of a tyejty implies a right of either
party to terminate the treaty unilaterally, is an exception to the general rule
that a treaty which does not by its express terms provide for a right of denun-
ciation by either party, may only be terminated by consent of both parties.
The exceptional character of such an implied right has been clearly brought
out in the formulation of Article 56 of the Vienna Convention on the Law of
ïre~iics. 1hersfore. the oiiu$ of prwf ir on the side (if thosc uho cldim qiich
3n cxccption~l right. .Asone <,fthe pre\ii,u\ R4pporte.irj i>fthc Intern;itiunil
Laa Commi>sion (S.r Gerild fitzni.iiiricchd\ pointcd out in his report on
this queilion. such :in interprct:iii~in ol'the tredtisml! permissible \ihcre the
ver) nature <if the trr.31) "imposes such an impli~'.ition ar 3 necejsary chrlri1c-
teristic of the type of obligation involved".
"Second Report on the Law of Treaties", Yearbook of rhe Irrrer~~atiorral
'Law commis si o r957, Vol. Il,p. 39.
61. The nature of a treaty can imply a right of unilateral denunciation only
if it has not been possible to ascertain the intention of the parties whether or
not such a right should be admitted; a treaty cannot be interpreted in contra-
diction to the intention of the parties. This means that the nature of a treaty
could imply a right of denunciation only in those cases. where each party; if
the parties had thought of the matter andhad made an express stipulation to
this effect, would have readily consented to provide for such a right. Or, to putil diflerently, a treaty cannotimply a right of denunciation where it is obvious
10 one of the parties that the other would no1 have consented 10a unilateral
rieht ofeither~artv 10terminale the treatv al anv lime at ils discretion
-62. In view of the& basic con\idcratiok it sc&s rather doubtf~l whether it
mi~ht be po$siblc at al1 IO dcfine csrtain abstrïct cïrcgoric% of trcatics \ihich
bvtheir verv nature imnlv a rieht of unilateral denunciation bv either oartv:
ii at all, sich an impfication-could only test on the speciai features and
character of the obligations contained in a particular treaty. It was these
considerations which had led the members of the lnternational Law Commis-
sion 10avoid the listing of certain types of treaties which should be generally
considered asallowina their unilateral denunciation by each of the parties.
63. Originally. theiast Special Rapporteur of the International ~aw Com-
mission on the Law of Treaties (Sir Humphrey Waldock) had set out four
classesof treaties which by their nature appeared 10 him 10 raise a presump-
lion that thev were 10 be reearded as essentiallv of a limited duration. and he
proposcd thit thcsc tre3tie,;hould heconsiderid 10beterminable upo" giving
12-months' notice. These four categories of ireaites included
(a) commercial treaties, other than one establishing an international régime;
(b/ treaties of alliance or ofmilitary CO-operation:
fc) treaties for iechnical CO-operation in economic. social, cultural, scientitic
communications or any other ,uch maitcrs;
(d, treatics of arbitration, cunciliütion or judisial sertlement.
64. In the International Law Commission obiections had been raised
against thegencrality ofthij propasal. I',,rticularlstrongobjection iras voiced
by niost of the members of the Inrcrnationïl Lan Comniission agatnit the
inclusion of treaties of arbitration. conciliation..or -udicial settlement in the
lis1 of treaties which might be terminated unilaterally by one of the parties.
See Discussion al the 689th Meeting (29 May 1963) and Yearbookof the
InternarionalLaw Commission1963,Vol. 1,pp. 99-107.
In view of this opposition, the special Rapporteur replaced ils original Article
by a new Article which did not mention anv cateeorv of treaties. but the uro-
puscd rule was restrtcted to thow cïsei \rh;re it ap&arcd from the nxtuk of
the treïty and from thc clrcumçiance, ofits conrlusion that the pxtics did not
intend 10exclude the possibility of the denunciation
See 709th Meeting (27 June 1963) and Yearbookof the lnfernafional Law
Commission1963, Vol. 1, p. 239.
One mighi. thcrefore. sdfcly conclude. thïr 111snc~trhc t)pe ofa trcaty but the
particular nature of a treaty and ihe pariicular character of the ohligatiuni
contained in such a treaty from which it miaht be inferred that a va.tv s.ould
havethe right to terminate the treaty unilat&ally.
65. Turning now ta an examination of the 1961 Agreement il is obvious
that the compromissory clause contained in paragraph 5 of this Agreement
cannot be classified under the tre~ ~es~ ~ a~bitration or iudicial settlement
uhich the Special ~apporkur (Sir Humphrcy ald dock had In mind.namcly
treaiies designed for the settlement of disputes of diflerent kinds for an in-
definite period. The Soecial Rannorteur had been induced to include this
type of ireaties under'the cate&ry of terminable treaties by the trend of
modern State practice in this respect, according ta which such treaties are
almost invariably concluded either only for a fixed term, or for renewable
terms subject to a right of denunciation, or made terminable upon notice. It cannot be denied that State practice has tended to accept only limited obli-
gations to submit to arbitration or judicial settlement: while during the time
of the Permanent Court of lnternational Justice declarations und'r the ~~-
tional Clause contained no time-limit, it had now becornethe normal practice
to make such declarations only for a limited time, normally five years. or to
reserve the rieht to terminate them uoon notice. The Euro~ean onv vent ion
for the ~eaczul Settlement of ~ispuies of 29 April 1957 allows a party to
withdraw from the obligation to submit a dispute to judicial settlement after
five vears from the date of its entrv into force for that Dartv (Art. 40). The
reason for this regrettable development mus1 be sought'in the'reluctance of
States 10 submit beforehand to some form of arbitration or judicial settlement
without knowine the subiect-matter. the scoDe and the circumstances of a
future dispute ivhich will have IO be ;ubmitted to such procedttrc. ThereTore
thcconclusioi~ of the Special Rapporteur. if ai al]. that iiviciv ofthis practice
treaties ofarbitration or judicial settlement must be regarded asessentially of
a terminable characler. could apply only to those treaties of arbitration or
judicial settlement which cover al1 sorts of disputes within an indefinite
time: his conclusion could not aoolv to the 1961 Anreement hetween the
1'eder;il Repiiblic of Gcrmsity anii iciland reldting on6 to the judicidl ~ettle-
nient i~f dispute ahi)ui a riirther extenston i~fthe fishery liniits i~fthe Icc-
Iaiidis lisherics i~riidictionbeyond the 12 miles alreddv antir.iiiated bv hoth
parties at the tjme of the conclusion of that ~greemént. ~e;e, each party
knew perfectly well what would be the kind of dispute that would have to be
submitted to the lnternational Court of Justice for adjudication, and the
scope of this obligation was at the same time clearly defined and limited to
this specific kind of dispute.
66. While the indefiniteness of the oblinationsinvolved in eeneral clausesof
arbitration and judicial settlement mighijustify a right of either contracting
party to reconsider ils commitment after a reasonable lime in the light of
chanacd circumstances. there is no such iustification here for the Government
of lciland ro uithdrda fruni the ncll-defincd ;,nd limiied obligatit>n to have a
furthcr eitr.n\ion of its firheries jiirisdisiionre\,ieu,cd by the Internaiional
Coiirt a~fJu>ti<c. As the hihtors (if the 1961 Arreement showï. the tii~vern-
ment of Iceland was perfectly well aware that icwds the main purpose of the
compromissory clause contained in paragraph 5 of the 1961 Exchange of
Notes togive the Federal Republic of Germany the assurancethat any further
extension would be effected in accordance with International Law as inter-
preted by the lnternational Court of Justice. Ln view of this.purpose of the
Agreement, and as it cannot he assumed that the Federal Republic of Ger-
many would have consented 10 a unilateral right of denunciation of this
obligation which would have deprived this Agreement of al1its value, there is
no basis for an interpretation of the 1961 Agreement to the effect that it
im~lied a rieht Io terminate the Aereement unilaterallv before the antici~ated
extension orthe fisheriesjurisdictin by Iceland had taken place.
67. In this connection the fundamental difference between general clauses
of arbitration or iudicial settlement and the com~romissorv clause contained
in the IV61 ~~r&ment <hoiild ricithe overlooked: ira geierdl clliuse which
provides Torarbiirdiion or judicial seitlement is terniinated under the express
or im~iied terms of the ~éreement. such termination normallv affects 0niv
futur;disputcs. the scopeah suhject-matter of which are no1 )ét known, but
doer not afict a right of the other party IOhavea partisular dispute submitted
to arbitration or judicial settlement. The 1961Agreement, however, gives the
Federal Republic of Germany a right to have a particular dispute which had88 FISHERIEJ SURlSDlCTlON
already been anticipated by the parties submitted to the International Court
of Justice; the compromissory clause contained in that Agreement gives the
Federal Republic of Germany a right to ask for a review of any extension of
Iceland's Fisheries Jurisdiction bv the International Court if the Federal
Rcp~blic wiiuld considcr siich ;in e\teii\i<in 3, not bcing in conformit). n,iili
Intcrw~tional I.a\r. II-iinn.>t k inipl\cd froin the icrm, and nlit.,ie of the lOOl
Acrccment ihxt this r.rht oi thc I;rdcrl Rcpiiblic cciulJ hc t,tkcn a%r:iyat %:Il
bythe other contracting party. The terminalion ofa general clause of irbitra-
tion andjudicial settlement works both ways, releasing both parties from the
same obligation; the termination of the 1961Agreement, however, would take
awa~~2 rie-t of the Federal Reoublic of Germanv which had been the auid
Pro quo for the toleration of the 12-miles fishery limit proclaimed by lceland,
and which was mcant to protect the Federal Republic of Germany against a
~ ~ ~ ~ ~ ~lateral extension bv lceland of its fisheries limits in case &ch an
extension were no1 in harmony with the development of lnternational Law.
(c) Tlie Defi~iireOhjecr of rhr 1961 Axrermcirr
68. The main argument which is put forward in support of the contention
that the nature of a treaty alone, irrespective whether such an intention of the
parties could be esttiblished, may justify a right of unilateral denunciation
after a reasonable time, is the fact that the parties to a treaty could in al1
probability not have intended a treaty of this nature to last perpetually. This
argument, however, is by no means convincing under al1circumstances:
Even if the parties did not intend to set up a permanent régime (such as
boundaries, special international régimes for a particiilar waterway or an
economic union), and even if they were aware of the non-permanent character
of the obligations created between them, this does not mean that the parties
were preoared to admit the unilateral denunciaiion of such obligations.
They kiiht rather have been convinced that in view of the friendly relations
between them, the treaty would, if ifhad outlived its purpose, be terminated
by mutual consent. It is more in line with the reci~rocal character of treaty
relations that it should be established not by unilatiral action, but by consen-t
of the parties whether the obligations under the treaty have achieved their
purpose and that the treaty should, therefore, be termintited.
69. Thére may have been various reasons why the parties did not insert a
definite lime-limit or a deni~nciation clause in the treatv: the. mav .ot have
been able to foresee how long the treaty would be needed, or they may have
differed as to the conditions under which the treaty shoiild terminate. or they
may have. for ~olitical reasons, ourooselv avoided toiichinc on that issue. It is
no defencefor'the assumption oia ;nilateral right of denincialion that, if a
treaty cannot be terminated, the obligations contained in this treaty may
eventuallv turn out 10 be an unbearable burden for one oartv upsetting the
balance of reciprocal obligations. Such a case, however. does notcall for an
implied right of denunciation but rather for an examination under the rule
relatinc to a fundamental chance of circumstances Iclarisnlarebrissic sranri-
bus). we shall revert to this aspëct later (seeparas. 72 to 77 below).
70. If the 1961 Agreement between the Federal Republic of Gerinany and
Iceland is examined in this respect. the circumstances under which this Agree-
ment bad been concluded do not in anv wav indicate that the oarties had for
. .
some special reason or by inadvertence omittedto regulate the duration of the
obligations under the Agreement; nor is a character of the Agreement con-Law of Treaties, which Article is generally recognized as codifying existing
general international law, allows a Party to invoke a change of circumstances
as a ground for terminating an agreement only under the following four con-
ditions, which al1must be present, namely if:
(1) the changeof circumstances is fundamental, and
.2. the change.was no1foreseen bv the varties. and
(3) the cxistcncc of thow circumstance\ constituted an esseniiül baris <ifthe
consent of the parties 10 be huund by the tredty. and
(4) the clTcci of the changc is radiciillv to iransform the extent of ohluati-ns
still tobe performed Ünder the treaty.
It is obvious that theseconditions are not fulfilled in the presentcase.
74. The arguments used in the Prime Minister's statement of 9 Nove~n~er~ ~ ~......
1971are in niway affecting the basisof the 1961Agreement and the extent of
the obligations to be performed under the 1961 Agreement: That fishery
techniques have developed quicker and have become more efficient than anti-
cipated may be a groundfor intensified efforts for conservation measuresand
may have prompted the Government of Iceland to take earlier action towards
a further extension of its fisheries jurisdiction. But it has already been stated
that paragraph 5 of the Exchange of Notes of 19 July 1961 leaves it to the
Government of Iceland when and to what extent it miaht think it rieht to
extend ils fisheries limits in accordance with lnternationa<~aw, the obligation
to submit a dispute relating to such extension to the International Court of
Justice remaining the same. As far as the develovment of international leaal
opinion on lisheiies jurisdiciion 1sconçerned, to uhich the Prime hlinisÏer
rcferred on 9 Novembcr 1971. itis diriicult to sechow ihis Jcvclopmeiit could
have ~Ifectcd the basisof the 1961tigreenlent and the scopc of the obligations
contained therein. If the Prime Minisier's remark was meant in the \ense th31
under ihc presentstaie of International Law. ituould not have beennece>i;iry
to conclude an agreement on the de facto recoanition of the 12-miles fisherv
limit, this may Gel1 be doubted; although international legal opinion now
generally admits a 12-miles fishery zone, the question of the treatment of
traditional fishing righls exercised within this zone bv foreian fishermen is still
unresolved. By secuhng an exclusive fisheries zone in the lq6l Agreement, the
Government of lceland has certainly gaincd an advantage which was not a
matter of course at that time, and still derives some benefit from this Agree-
ment .
75. The primary consideration which has motivated the Government of
Iceland to repudiate the Agreement on the iurisdiction of the International
Court of Justiceseemsto haie beenthe realization that a consensusamong the
States has not yet emerged which would sustain the claim of Iceland for an
exclusive fisheries zone up to 50 miles without regard to existing traditional
fishing rights. In a brochure. entitled Icelandand the Law of the Seo, distrib-
uted by the Government of Iceland in the beginning of 1972it was explained
why the Government of Iceland did not want to take the issue to the Inter-
national Court of Justice:
"The question is sometimes asked whether it would not be wise for
Iceland to submit its claim to the International Court. These sueuustions -
are jrimeu,hat unrealisiis hecaiise. as ue have seen. 31 prescnt ihere arc
no provisions in Intcrnïtional Lüu uhish sover the widih of the terri-
torial seaor the fishery limit. Ituould. thereforc. be extremls dillicult for
the International court to render judgement in'a dispute ;ver a fishery limit. Due to Iack of recognized rules in International Law on the terri-
torial sea and fishery limits and due to the diversity of opinion on the
matter expressed in different multilateral treaties, itwould function as a
court of arbitration rather than as an Iiiternational Court of Justice if it
were to rule on the width of the fishery limit."
76. It might well have been that the Government of Iceland, when itcon-
cluded the 1961 Acreeiiient. had exoected that some lime later international
legal opinion and iracticc would sistain a further extension of ils fisheries
jurisdiction. Thot this expectation had, however, not materialized as early as
the Government of Iccland would have wished. or that it felt forced to act
before it could rely in this respect on settled rules of Internalional Law, is
ccrtainly not a relevant element iinder the rule of the clarisnlo rebrrssic ston-
tibi,sassuch expectations were not the agreed basisunder which both Govern-
ments acted when thcy concludcd the 1961 Agreement. It was rather the
common understanding that a further extension of the fisheriesjurisdiction of
lceland should beeffected in accordance with International Law andthat the
International Court of Justice sho~tld be the competent organ to decide a
dispute between the parties in this respect. There is no reason to question
todav the comnetence and abilitv of .he Court to Drotcct the leeitimate
righcr and inte& of both parties.
77. It follows from the foregoing considerations that since 1961no funda-
mcntal change of circunistances has taken place which would entitle the
Government of Iceland to terminate the 1961Agreement.
78. The Prime Minister of Iccland is reported in the Icelandic Parliament
(Althing) on 9 November 1971 Io have made the following statement with
respectto the submission of the present dispute to the Court:
"But most important of ail is that the nature of this issue touches the
right of existence of the Icelandic nation. And the lcelandic nation
cannot agree to give to others, neither to an international body nor to ,
other States, the right to decide on its right of existence" (reported in the
brochure Icelandoir<i flic Low ofrhe Seo,published by the Government of
Iceland, Reykjavik 1972, p. 34).
On 15 February 1972 the lcelandic Parliament (Althing) requested the Gov-
ernment of lceland to inform the Governments of the United Kingdom and
the Federal Republic of Germany that-
". . .because of the vital interests of the Nation and owing to changed
circumstances the Notes concerninr fisherv limits exchanged in 1961are
- -
no longer dpplic~blc and that thcir provisions JO no1 conititutc an
ohligntion for Iccland" (the text of the Rcsoliition hasbccn reprodi~ccd in
full in Anrie.;Ci to the Aoolic;liron of the CsderAl Rcooblic filrd 5 Jiinc
1972 in this case).
The Minister for Foreign Affairs of Iceland in his letter addressed to the
Court and dated 27 June 1972,stated:
"The Government of Iceland, considering that the vital interests of the
people of Iceland are involved, respectfully informs the Court that it is92 FISHER~ES JUR~SO~CTION
not willing to confer jurisdiction on the Court in anv case involvina the
cxieni of tIie li\hcr) l;iiii<if IcelinJ. and spîi~ficall[~ iiithe case soiiyht
10 hs~njtltuied hy thc Go\.crnmeni of tlic FcJcr~l Rcriuhlii of Gcriii:iny
on 5 June 1972."
79. It is not quite clear from the foregoing quotations whether the assertion
of the "right of existence" or of "vital interests" is meant as an argument for
terminating the 1961 Agreement under the aspect of changed cir&mstances
or whether it is alleged to be a legal groiind which excludes the application of
the judicial settlement clause in the present situation; the forrnulation in the
letter of the Minister of 27 June 1972 may possihly be ~inderstood mereiy as
refusing to recognize the jurisdiction of the Court by way of forum proro-
gatum. Be it asit may, the assertation of "vital interests" is, under no circum-
stances, a valid ground which could entitle the Government of Iceland to
regard paragraph 5 of the Exchange of Notes of 19 July 1961 as being not
a. .icable in the oresent case.
80. Under theaspect of changed circumstances, the argument that the 1961
Agreement in so far as it conferred jurisdiction on the Court could he ter-
minated because the Government of Iceland now considers the auestion of
the further extension of its fisheriesjurisdiction asa matter of "vital interest",
must fail for the simple reason that the Government of Iceland had always
re-arded the auestion of its fisheries iurisdiction as heine of vital interest to
the Iiel~nili~ nation. 1.iirihcrniore the siibjcciivc :ippre<iati<>nhy one pcirty <ii
it\inicrc5ts ivhiih tiredi stikc a hen :iire:ii) is ~.oncliiJc~l1snc1i.r the hssis dn
which both ~arties have aiven their consent in concludine the treatv unless
such a subjective element 7sexpressly made a condition for-the application of
the treaty. When the Government of the Federal Republic of Germany and
the Government of Iceland agreed that any further extension by Iceland of its
fisheriesjurisdiction should be suhject to review by the International Court of
Justice, both parties acted on the basis that the Court would be the most
comuetent body to adiudicate on the lesal and factual issuesinvolved and to
recoinire the légitimacy of any claim oflceland for a further extension of its
fisheriesjurisdiction. Nothing has changed since in this respect.
81. The ara-rnent that. if in a disoute interests are al stake which are con-
sidered "vital" hy one of the parties, such a consideration may forma legiti-
mate ground for the refusal to submit the dispute to the Court in pursuance
of an otherwise applicable judicial settlement obligation, must equally fail. It
is true that States are reluctant to submit disputes on issues which they con-
sider "vital" to their existence, to arbitration or judicial settlement by special
agreement. and it is also true that in auite a numher of arhitration treaties
which hadbeen concluded in the first part of this century, a party was specif-
ically authorized to refuse to submit a dispute to arhitration if it considered
the matter as affectine its vital interests. This. however. is onlv a descriotion
of the practice of ~ta&s under what conditions they weie preiared to s;hmit
to arbitration or judicial settlement. No authority in international law asserts
that matters which are considered bv one or both ~arties as afictine. their -
vital intcrcsts, are per >cin~ip~blc of belni: suhmiticil to ;irhitr.iii<in or juJ!ci;il
~elilcmeni cl~iise. As long as a Staie i, frcc io rlcridc \ihetticr or ntitii \iill
agree to submit a dispute with another State to the Court, it is a legitimate
political consideration to decide this question in the negative if itconsiders its
vital interests as being affected; but if a State has bound itself to submit a
certain dispute to the Court, this has become a legal obligation which may
only be terminated under the recognized rules concerning the termination of treaties. None of these rules does~D..Y..as we have seen. in the oresent case.
andnone of them entitles the Government of Iceland to regard iis obligation
arising out of paragraph 5 of the Exchange of Notes of 19 July 1961 as in-
annlicable in the oresent case. It mav be undtrstandable. althouih rearettable
- -
thatstatessomet;mes regard it moréadvisable to take the protection of their
vital interests or what they consider to be their vital interests, into their own
hands. But there is no valid ground to assume that the International Court of
Justice, if it bas jurisdictioto deal with the dispute, is not competent Io
take account of the legitimate vital interests of a nation.
82. -t follows from the foreeoina considerations that the assertion of
"vital interests" by the Governhenl of lceland is irrelevant and does not
affect the legal basis of the Court's jurisdictiin the present case.
83. In view of the arguments put forward in paragraphs 25 to 82 il is
respectfully submitted that there is no valid ground which would entitle the
Government of Iceland to regard the agreement on the jurisdiction of the
Court contained in paragraph 5 of the Exchange of Notes of 19July 1961as
invalid, terminated or no1applicable to thedispute presently submitted to the
Court. Therefore, this agreement forms a valid basis for the Court's jurisdic-
tion in the present case.
IV. The Declaration of the Federal Republic of Germany recognizing
the Jurisdiction of the Court in Pursuance of the United Nations
Security Council Resolution of 15 October 1946
84. The Federal Republic of Germany not heing a party to the Statute of
the Court has to comply with the conditions laid down by the Security
Council Resolution of 15 October 1946 in order to be entitled to appear
hefore the Court (Art. 35 of the Statute of the Court). In accordance with this
Resolution, the Government of the Federal Republic of Germany has, by
Declaration dated 29 October 1971and filed in the Registry of the Court on
22 November 1971, recognized ipso facto and without special agreement the
jurisdictionof the Court in respect of al1disputes which may arise between the
Federal Republic of Germany and the Republic of lceland envisaged in
oaraara~h 5 of the Exchanae of Notes of 19 Julv 1961. The full text of the
~eclàraiion has been reproduced in Annex A -to the Application of the
Government of the Federal Republic of Germany filed in the Registry of the
Court on 5 June 1972.
85. According IOArticle 36 of the Kulcs of Court, a State uhich 1sno1 a
part)' to the St;itutc of the Court has to satiify the Court thaIIhas complied
u,ith îny condition prcscrihcd by the United N~tions Security Council for its
;idmission to the Court. In accordancc with Article 36 of the Rulcs of Court.
the Gaivernment of the Fcdersl Rcpublic of Cicrniany has set forth in ils
Annlication dated 5Junc 1972that the conditions orescribcd bv th? Securitv
coincil in its Resolution dated 15 October 1946'for the admission to the
Court of States not parties ta the Statute have been complied with hy the
Declaration of 29 October 1971, transmitted to the Court on 22 November
1971.The requirements of Article 36 of the Rules of Court havetherefore beenfulfilled within the time-limit prescribed in that Article. The Federal Republic
of Germany is therefore entitled to be a party before the Court. lceland being
a party to the Statute of the Court is under Article 35, paragraph 1, of the
Statute ipsoiure entitled to be a party before the Court. Thus, the Court has
jurisdiction rotiorre personae with respect to both parties in the present
case.
86. The Government of Iceland has. in the telenram of ils Minister for
loreign Alïairs tr~nrniiticd ro the Court on 28 ~uly-1972. directed the atten-
tion of the Court td rhe faci that the Federal Kcpiiblic of Gcriiian) had liled
its Decldration of 29 Octobcr 1971 ai a hte after iihad hcen notificd bv the
Government of Iceland, in its aide-mémoire of 31 August 1971, thai the
object and purpose of the provision for recourse to judicial settlement con-
tained in the Exchanee of Notes of 19 Julv 1961 had been fullv achieved. Bv
pointing ta the date of the Decliiration thé <io\,crnmcnt of 1cel;ind seenis t;~
inriniate that thc b~ndingforce of the ngrecment conta~nerlin paragraph 5 of
the Exchange of Notes of 19July 1961 might bc regarded ;is irnperfcit as long
as the Ciovernment of the ~ederal Kepublic of Gerniany had not elïcctcd this
Declardtion and that thc Governmçnt of lcelnnd hiid denouiiccd an iniperfcct
aereement. If this were the contention of the Government oflceland. it would
mi\understand the reldtion\hip ixt\ieeii the ut~nipromi~sory clause in the 1961
Acrecinent and the Dcc1ar:iti~in required by the Securits Council Resoliition
of29 October 1946.
87. The agreement between two States ta recognize the jurisdiction of the
Court for a particular kind of dispute and the declaration which forms the
basis of the caoacitv to be a oartv before the Court are leeal acts on diiïerent
levels which aie oniy indirecily rélated ta each other. ~he>greenient between
the two States confers jurisdiction on the Courtwith respect to this pnrticiilar
kind of disoute ratior,e materiae: the declaration orescribed bv the United
Nations ~ecurit~ Council ~esoluiion of 150ctober'1946 siihjecl; those States
which are not parties to the Statute of the Court ta the Statute and the Rules
of Court, i.e., it establishes the jurisdiction rario,repersoiracof the Coiirt over
such parties.
Cf. H. Blomeyer, "Der Internationale Gerichtshof und die Nichtmitglied-
staalen des Statuts", Zeitschri/r fiir assl/iii(li.rclres/iferrlliches Rechr riiid
Vilkerrecht, Band 16 (1955), S. 256-276, who deals with the position of
States which are not parties to the Statute, in relation to the Court und
reflects particularly on the legal situation of the Federal Republic of Ger- .
many.
If two States aereeto submit a oarticular kind of disnute7bet~ ~ ~ ~em to the
Court, such a commitment constitutes a contractual relationship between the
two States. Therefore, such a commitment may only be terminated in confor-
mitv with the rules relatine to the termination of Ïreaties. Should ilhaooen
thai orle of rheseStares 15n01a part). to the Statiite of the Coiirt, that SI;& is
under an aiicillary obligation iihich rcsiilt~ froniitimain obligation IO submit
a disnute to the court. to take the necessarvstem to becomeentitled to aooear
befoie the Court. hi; will be effected by ihe aiorementioned declaration'and
has to be done at the latest when a dispute is submitted to the Court.
Cf. Article 3 of the European Convention for the Peaceful Settlement of
Disputes of 29 April 1957, which specifically obliges a contracting party
which is nota Party ta the Statute of the Court to take the necessarvstem . .
for securing admission to the Court, but does not prescribe a lime-limit when this should be done. Article 3 reads as follows: "The High Contract-
ing Parties which arc no1 parties to the Statute of the International Court
of~ustice shall carry out the ineasures necessary to enable them to have
îccess thereto."
Th< dc<l;tr.tiion prcwribcd hg ~hc Unitcd Nxticins Se:i.rit) Couii:il mxy be
cither pdrt~:.ilitir gcnr'r.il. II:IIlhe dis..retion oi the SI.JI~in m:~kiiig such
a declaration eithcr to restrict ifs eilect to the oarticular kind of disoutes cov-
crid hy the ~greenicnt on.iiiJic.:il ~ctilcmcnt~ir ioi,siin theformofagcncr~l
dccldrdtion corrcspondind to ;iiIcclar.iliounder i\rt.cle 36. piragrsph 2.of
the Statute of the Court. It follows from these considerations that the Decla-
ration of the Federal Republic of Germany, dated 29 October 1971.was not a
constitutive element of the 1961 Agreement but merely the fulfillment of an
ancillary obligation resulting froin this Agreement which could he eilccted at
any lime until a dispute would be submitted to the Court. Article 36 of the
Rules of Court reliects lhis legal situation fully.
88. It follows from the foregoing considerations that the binding force of
Agreement did not depend on the Declaration required by the
the 1961
Security Council Resolution of 15October 1946.
V. Conclusions
In view of the facts and arguments put forward in this Memorial the follow-
ing conclusionsare respectfully siibmitted:
(1) Paragraph 5 of the Exchange of Notes of 19July 1961conslitutes a valid
and binding agreement which has conferred jurisdiction upon the Court
with resnect to anv disoute betweenthe Parties relatina to an extension bv
Iccland of itsfirh~r~er)urirdiciion begond the 12-niilc; limti;
(2) The dispuic suhmitted 11,the Court by the Applicatcon of the tederiil
Keniihlic of Gcrnians i>f 5 Jianc 1972 and sihich relaics Io the chtcnsiilii
of ihe Icelandic fishiries jurisdiction beyond the 12-miles limit effective'
from I September 1972. falls within the scope of the agreement con-
tained in .araa-.oh 5of the Exchange of Notes of 19July 1961:
(3) The various arguments of the ~overnment of Icelandthat the agreement
contained in paragraph 5 of the Exchange of Notes of 19 July 1961 had
been void ab initio, or had lapsed or had validly been terminated by the
Government of Iceland before the institution of the proceedings in this
case, are unfounded;
. (4) The assertion repeatedly made by the Government of Iceland that the
subject-matter of the dispute submitted to the Court by the Federal
Republic of Gérmany ailected vital interests of the lcclandic nation, does
not exclude or limit the jurisdiction conferred upon the Court by para-
graph 5 of the Exchange of Notes of 19July 1961;
(5) The agreement contained in paragraph 5 of the Exchange of Notes of
19 July 1961 is therefore valid and remains applicable between the
Parties; it forms, together with the Declaration of the Federal Republic of
Germany of 29 October 1971 accepting the jurisdiction of the Court
in accordance with the United Nations Secority Coilncil Rcsolution of 15
October 1946, the legal basis for the exercise of the jurisdiction by the
Court in the present case. VI. Submission
Therefore, the Federal Republic of Germany respectfully requests the
Court to adjudge and declare:
That the Court has full jurisdiction Io entertain the Application submitted
by the Federal Republic of Germany to the Court on 5June 1972and to deal
with the merits of this case.
13 October 1972.
(Sipied) Günther JAENICKE,
Professor Dr. jur.
Agent for theGovernme~rt
of the FederalRepi~blicof Germafry. MEMORlALONJURISDICTION
ANNEXES TO THE MEMORlAL ON JURlSDICTlON
Annex A
VERBALNOTE OF THE EMBASSY OF THE FEDERALREPUBLIC
OF GERMANY IN REYKJAVIK OF 9 JUNE1958
The Embass~~of~-he~Federal Re~ublic of Germanv nresents its coniuliments
to the Ministry for Foreign fi airsf the Republk'of Iceland and has the
honour under instructions received to communicate the following:
On June 1, 1958, the Icelandic Government published its intention to
amend on June 30, 1958, the Law of March 19, 1952, regulating the fishing OR
the Icelandic Coast.The amendmcnt is to reserve the right of fishing within an
area of 12 miles from the baseline exclusively to lcelandic fishermen from
Sentember 1. 1958. Furthermore the Federal Government understands from
th; ÿnnouncrnicni ihai the Icclandic Goi,crnmcnt rcrsrves itself ihc right io
exicnd ihc fishing ?one beydnd these liniiti b) mo<lificstioi~ of thc hlscline.
The rcJcr.il C;ov,~rnmcnt Jcclîres ihat thc prop~ired dc~rcc uf itic Iccl.indis
Goicrninrnt doc.; na :inèct ihc righiof oihcr indiions io firh in ilie aras of
the high jcli\ son;crncd by thcw ztcp;. Th', rni~~rnlit:ondl I;ia JOCSnoi enitle
anv nation to brina-.arts of the hieh seas whollv or partially . .iinilaterdl
.ic;iso under ils~~risdici on .iiiJ thii;mp.itlie right, oi'oilicr nti( onr.
Fiirllicrmorcflic Fcrler~l Gi>vcrnmi.ni h:is thc honsur io drau the ïiicriti.in
to the fact that since manv decades German fishermen have been fishing un-
rcstr:iinîJi? th< dreir of ihc hlgh vxs nliich in I;.iturç :~reex~l.iitvel) bc
rescrved !IIIcelandi~.lishernien b) the intendcJ sicps of ille 1ccl:indi: C;o\,crn-
meni. In the ODinlOii of [hi Fcd~.rîl Cio\ernnieni the <;ernidn iijhind vesscli
are also in the future notto be interfered with fishing in this zone6. a uni-
lateral act of the Icelandic Governmsnt. Moreover the interdiction of fishing
in the extended zone of 12 miles as intended by the lcelandic Government
would considerably encroach on the interests of the German deep-seafishery.
The Federal Government is conscious of the fact that economicülly the
lcelandic people is in a great measure dependent on fishing. Owing to this
special situation of Iceland the Federal Government is and will be rcady to
enter into negotiations aiming at an agreement. The Federal Government is
convinced that ifwould be possible to reach a settlement which will be con-
venient to al1interested nations and at the same time will take into consider-
ation the special Icelandic interests. Such a friendly settlement would further-
more guarantee the maintenance of good relations which have always existed
between the Federal Republic of Germany and Iceland.
Reykjavik, June 9, 1958.
To the Ministry for Foreign Alïairs
of the Republic of Iceland,
Reykjavik. FlSHERlESJURISDICTION
Annex B
REGULATION lSsu~o BY THE GOVERNMEN OF ICELAND
ON 30 JUNE1958
(Icelandic text published in the official Icelandic
law gazette Sljornorridindi.No. 70 of 30 June 1958)
Botschaft
der
BundesrepubReykjavikchland
Regulations
concerning the Fisheries Limits off lceland
Article1
The fisheries' limits off Iceland sliall be drawn 12 nautical miles outside
base lines drawn between the following points:
1. Horn ................. 66'27'4 N., 22'24'5 W.
2. Iraboôi ................ 66'19'8 - 22'06'5 -
3. Drangasker .............. 66'14'3 - 21'48'6 -
4. SeIsker ................ 66"07'5 - 21°31'2 -
5. Asbuôarif ............... 66"08'1 - 20'11'2 -
6. Siglunes ................ 66"11'9 - 18O50'1 -
7. Flatey ................. 66"10'3 - 17"50'5 -
8. Ligey ................. 66'17'8 - 17'07'0 -
9. Rauôinupur .............. 66'30'7 - 16'32'5 -
10. Rifstangi. ............... 66'32'3 - 16'11'9 -
II. Hraunhafnartangi ...... < .... 66'32'3 - 16°01'6 -
13. Skilatoarsker.................. 65'59'7 -- 14'32'0 -
14. Bjarnarey ............... 65-47'1 - 14'18'3 -
15. Almenningsfles ............. 65'33'1 - 13'40'6 -
16. Glettinganes .............. 65'30'6 - 13"36'4 -
17. Norôfjarôarhorn ............ 65'10'0 - 13'31'0 -
18. Gerpir ................ 6904'7 - 13'29'8 1
19. Holmur ................ 64"58'9 - 1330'7 -
20. Setusker. ............ .,. . 64"57'7- 13'31'6-
21. Pursasker ............... 64'54'1 - 13'36'9 -
22. Yztibodi ................ 64'35'2 - 14'01'6 -
Selsker .....
Hvitingar ....
Stokksnes ....
Hrollaugseyjar . .
Tvisker .....
In-6lfshofôi ...
Hvalsiki .....
Meôallandssandur 131. Meôallandssandur II .......... 63O30'6 N., 18°00'0 W.
32. Myrnatangi .............. 63'27'4 - 18'12'0 -
33. Kotlutangi ............... 63"23'4 - 18'43'0 -
34. Liindadrangur ............. 63"23'5 - 19'07'6 -
35. Geirfuglasker ............. 63O19'0- 20°30'1 -
36. Einidrangiir .............. 63'27'4 - 20'37'2 -
37. Selvogur ............... 63'49'1 - 21'39'4 -
38. Hopsnes ................ 6j049'3 - 22'24'6 -
39. Eldcyjardrongur ............ 63O43'8- 2Z059'6 -
40. Galuvikiirtangi ............. 64'4.4'9 - 23'55'3 -
41. Hraunvor ............... 64'49'6 - 24"01'0 -
42. Skilasnagi ............... 64'31'3 - 24'02'6 -
43. Bjargtangar .............. 65'30'2 - 24'32'3 -
44. Kopanes ............... 65'48'3 - 24'06'3 -
45. Bardi ................. 66'03'7 - 23'47'6 -
46. Straumnes ............... 66'25'7 - 23'08'5 -
47. Kogur ................ 66'28'3 - 22'55'8 -
48. Horn ................. 66'27'9 - 22'28'5 -
Besides,limits shall be drawn arolind the following points, 12nautical niiles
outside:
49. Kolbeinsey .............. 67'07'5 N., 18'36'0 W.
50. Hvalbakur ............... 64'35'8 - 13"16'7 -
51. Geirf~igladrangur ............ 6j040'6 - 23'17'3 -
Finally, limits shall be drawn around the island of Grimsey, 12nautical
miles oiitside its outermost points and rocks.
Each naiitical mile shall be equal to 1852metres.
Article 2
\Vitliin the fislierie,' IiniXII li\hing :icti\ii!hy ioreign \e\\els sliull be
proliibttcd iii :iccoril;iiicc \iitIi the provnioiis ofNo 32 of Jtiiic 19, 1922.
conzcrnng Fshing in Trrritori;il \\':ifers.
Article 3
lcelandic vesselsiising bottom trawl, floating trawl or Danish seine-netting
shall be allowed to fish within the fisheries' limits but outside the limits deter-
mined by Regulations No. 21 of March 19, 1952.
Before these Regulations become effective special provisions about such
licences shallbe promulgated stating further about fishing zones and periods.
Arlicle 4
Trawlers shall have al1their fishing gear properly stowed aboard while stay-
ing at places where fishing is prohibited.
Article 5
Fisheries' statistics shall be forwarded to the Fiskifélag islands (Fisheries
Association of Iceland) in the manner prescribed by Act No. 55 of June 27,
1941,concerning Catch and Fisheries' Reports.
If the Ministry of Fisheries envisages the possibility of overfishing the
Ministry may limit the number of fishing vesselsand ihe maximum catch of
each vessel. Article 6
Violations of the provisions of these Regulations shall be subject 10 the
penalties provided for by Act No. 5 of May 18, 1920,concerning Prohibition
against Trawling, Act No. 45 of June 13, 1937,concerning Prohibition against
Danishseine-nettinginTerrilorial Waters, Act No. 33 of June 19, 1922,con-
cerning Fishing in Territorial Waters, as amended, or, if the provisions of said
Acts do not apply, to fines from Kr. 1,000.00to ICû.000.00.
Article 7
Thesc Regulations are promulgated in accordance with Act No. 44 of
April 5, 1948,concerning the Scientific Conservation of the Continental Shelf
Fisheries, as amended by Act No. 81 of December 8, 1952. As soon as it be-
cornes operative Regulations No. 21 of March 19, 1952,concerning Conserva-
tion of Fisheries off the lcelandic Coasls shallase to be effective.
Article 8
These Regulations become elïective on September 1, 1958,
Ministry of Fisheries,Reykjuvik, Jtorc30, 1958. Annex C
VERBAL NOTE OF THE EMBASS VF THEFEDERALREPUBLIC
OF GERMANY IN REYKJAVIK OF 16 JULY 1958
The Embassy of the Federal Republic of Germany presents ifs compliments
to the Ministry for Foreign Affairs of the Republic of Iceland and has the
honour, under instructions received, to communicate the following:
According to articles 1and 8 of the decree published by the Icelandic Gov-
ernment in the official law gazettSljdnrorridindiNo. 70, of June 30th, 1958,
the fishing limits off the Icelandic coast are tbe 12 nautical miles counted
from the base-line from September Ist, 1958. As directed by article 2 of the
said decree foreign fishermen are lo be prohibited from any fishing within
these fishing limits.
Through its verbal note of June 9th, 1958, handed over to the Secretary
General of th~ ~c~landic Ministrv for Foreign Affairs on June 10th. 1958. the
Girman Embassy conveyed the~ederal Government's point of view on thé
unilateral extension of the fishing limits off the Icelandic coast12nautical
miles as made o.blic bv the lcelandic Government alreadv on June 1st. ,958.
The Federal Governmint regrets this one-sided procedure extremely and is
compelled toexpress its profound disappointment about the fact that the Ice-
landic Government has now taken the above-mentioned unilateral steas
without having accepted the suggestions of the Federal Government pre;iI
ouslv to seek an agreement on fishing off the lcelandic coasby friendly nego-
tiations with the ~ederal Government or other interested nations. ~he situa-
tion created by these steps compels the Federal Government to confirm its
unchanged legal standpoint outlined in the verbal note of June 9th. 1958.
Furthermore, it expressesonce again ifs urgent hope that the Icelandic Gov-
ernment will now declare ils readiness to enter immediately into negotiations
in which should also participate the governments of al1 nations who were
hitherto fishine off the Icelandic coast. In the o~inion of the Federal Govern-
ment the aimof the negotiations should be io bring about an iigreemerit
before September 1st. 1958,taking into account as well the principles of Inter-
national ~aw as the historic interests of al1nations concerned1" the opinion
of the Federal Government only thus can be avoided the rising of a situation
which might create a serious strain of the up ta now sa friendly relations be-
tween the Federal Republic and the Republic of Iceland.
Reykjavik, July 16th, 1958.
To the Ministry for Foreign Affairs
of the Republic of Iceland,
Reykjavik. Annex D
The Ministry for Foreign Alïairs presents ils compliments to the Embassy
of the Federal Republic of Germany and has the honour to refer to the
Embassy's Notes of June 9th and July 16th 1958 relative Io the question of
the lcelandic fishery limits.
During the period which has elapsed since the Embassy's Notes were
received the Icelandic Government in various international organisations
has endeavoured to explain the vital importance of the fishery limits to the
lcelandic people whose economy is based on the coastal fisheries and to work
toivards a solution of the problem of fishery limits. At the last session of the
U.N. General Assembly, the lcelandic Delegation suggested that the Assem-
bly itself should deal with the problems of the extent of the territorial sea and
fishery limits, since these problems had in fact ken before the Assembly for
almost a decade, on the basis of an Icelandic proposal submitted in 1949.
This suggestion was not adopted but instead it was decided to cal1a second
Conference on the Law of the Sea early in 1960. In the opinion of the Ice-
landic Government the discussion in the Sixth (Legal) Committee showed
once more that an increasing miijority is in favour of a twelve-mile limit,
even where no special considerations are involved. Also, il was clear that
in almost al1 cases the extent of coastal jurisdiction has been unilaterally
determined bv the State concerned. The views of the lcelandic Government
are explained in the enclosed memorandum.
Althouah the Icelandic Government regrets that the Assembly itself did not
deal withihese auestions assueeested. it hooes that the forthcomine Confe-
rence will be able to deal suc%sfully with ihe task submitted to itand that
irirerolia the interests of people who are dependent upon the coastal fish-
eries for their livelihood will be fully safeguarded.
The Ministry avails itself of this opportunity to renew to the Embassy of
the Federal Republic of Cermany the assurance of its highest consideration.
Ministry for Foreign AlTairs,
Reykjavik, February 26, 1959.
The Embassy of the Federal Republic of Germany,
Reykjavik. FlSHERlES JURISOICTION
Annex E
The Embassy of lceland presents ils compliments to the Ministry for
Foreign AiTairs of the Federal Republic of Germany and has the honour to
submit the following for friendly consideration.
As the Ministry knows there will be held a Conference on the Law of the
Sea in the spring of the year 1960 to deal with questions of the extent of the
TerritorialSea and Fishery Limits.
Thisquestion hasbeenexamined by a Commission of Experts of the United
Nations, u,hose findings were presented to the General Assembly of the
United Nations in 1956, which decidcd to convene a United Nations Con-
ference on the Law of the Sea, which was held in Geneva from 24th of
February to 27th of April 1958. In spite of the good work of this Conference
it unfortunately failed to reach an agreement on the extent of the Territorial
Sea.
11could however beascertained that the three-mile territorial limit seemed
iinsatisfactory and the proposais suggesting twelve miles as a limit received
a majority but no1 the 2:1 majority to make il a binding rule of international
Iaw.
For Iceland this problem of the Fishery Limits is a problemof ils existence.
Il has no mines or forests. Ils land is barren and the climate harsh. lts
agricultiire cannot compete with that of more favoured regions. The mainstay
of ils economy is the fishery and ils products are 97% of its exports. Its
industry is ancillary ta the fishing, such as netmaking and freezing the catch.
This means that it kas only fish to pay for its imports with. And it must
import many vital necessities. If the lcelanders cannot fish and seIl their
catch they will be iinable Io buy the industrial products they have been
iniporting and so tbat much buying power will be lost to the world markets.
As a means of subsistence fishing is not only a dangerous trade, and
hazardous occupation. lts ivhole basis can be ruined by unsuitable fishing
methods. Nol only have the whale fisheries in the Northern Atlantic been
ruined, but al1 such fisheries that have as its basis slow growing fish. The
spawn and fry has been destroyed by intensive fishing with heavy trawls, as
these destroy many times more undersized fish than those fit for consumption.
The policy of the lcelandic Government has therefore been to try to
conserve the fisheries for the good of al]. Lt works on the theory that if the
spaivn and fry can bespared the fisheries of not only lceland but of the whole
of the North Atlantic will henefit. Experiments with bottles thrown in the
sea north of Iceland show that the great swirls in the ocean formed around
lceland by the Gulf Stream carry these not only to Norway but to the coasts
of Denmark, Germany, Holland, Ireland, France and Greenland. Young
fishes are carried by those same ciirrents al1over the North Atlantic and fish
marked nt Iceland have been caught in Norwegian waters and in the North
Sen as well as at the West Coast of Greenland.
This matter of conserving the life of the seaaround lceland has taken on a
new urgency with the improved methods and apparatus of fishing in the
last ycars.
Since 1920Iceland has tried ta reach an agreement to conserve the breeding grounds and nursery areas around Iceland, but England has consistently
refused to take part in even a discussion of the matter. As England has more
trawlers than al1 the other fishery nations of the North Atlantic Area put
together, a conference without them would be futile.
The fishery limit of lceland used to be 16 miles. This was recognized by
England, which made several attempts to get the right to fish closer to the
coast. In 1901a treaty was made between the British and the Danish Govern-
ments, allowing British, and therefore aII other nations, to fish up to three
miles from the coast of lceland.
This agreement terminated in 1951 after notice had been given three years
before, as stipulated in the Treaty. As the lcelandic Government did not
wish to have any doubt about the legality of its action il did not extend the
fishery limit immedialely back to 16 miles, but waited for the decision of the
lnternational Court in The Hague in the Anglo-Norwegian Fisheries Case
(1951).
The decision of that Court was clearly for Norway and the Court decided
that Norway had the right to decide not only "the breadth of her territorial
sea. but also to the manner in which it is to be reckoned".
[celand therefore in 1952established a fishery zone of four miles asNorway
and çlosed the bays of lccland agüinst al1 trawl fishing. This meant also trawl
fishing by lcelandic trawlers. ~his was of course a sévereloss for them, but
the Ciovernment hoped it would effect a recuperation of the fisheries and that
they would be recompenscd by better fishing a few years Iater.
Even though there could be no dispute about the legality of this action
the decision of the Court was circunlvented by Britain, which instituted a
boycott against the landing of fish caiight by Icelanders. This caused great
harm to the countrv which had sold a main oart of their catch in Britain.
The lnternational iaw Commission chosen b; the United Nations in 1949
laid its findings before the General Assembly of 1956. Their opinion is that
lnternational ~~awdoes not recognize a limit over 12 miles.
This would mean that a fishery zone of 12 miles would be legal.
The Government of lceland did however not extend its fishery zone
immediately, but waited for the results of the Geneva Conference in 1958.
This did not reach an agreement on the question of territorial lirnits or
fishing zones, but it showed a greater support for a 12-mile limit than for any
other proposal.
As the situation of overfishiog was urgent, and there was no certainty
when an agreement would be reached the Government of lceland issued a
regulation on June 30th, 1958, declaring a fishery limit of 12 miles from base
lines.
This move has been protested against by a few Stales, as a unilateral
act and against international law.
In the above-mentioned Anglo-Norwegian Fisheries Case the International
Court States: "the act of delimitation of the sea area is necessarily a unilat-
eral ûct of the coastal State". AIso it mus1 be kept in mind that Iwo inter-
national conferences in 1930 and 1958 have failed 10 reach an agreement.
The lcelandic Government could have no hope of reaching an agreement in
forseeable future. Therefore it had to act on ils own, as al1other States have
done in decidina the linlit of its firhins zone.
Regarding thle question of the ixteRt of the fishing zone, it seemsdifficult
to concur in the opinion that the 25 States or more which have proclaimed
a fishery limit of i2 miles have al1 acted contrary to international law, and
only the 10-15 States that have upheld the three-mile limit are right. This isin106 FlSHERlES JURlSDlCTlON
spite of findings of the International Court of The Hague and the United
Nations Commission of experts.
The Icelandic Government trusts thatil is only a question of lime before
the 12-mile limit will be accepted as a general rule, and would greatly appre-
ciate if the Government of the Federal Republic of Germany would consider
the special situation and wishes of Iceland.
1. It has been suggested al the Geneva Conference that a coastal State
should exerciseexclusive fishing rights up to a maximum of 12miles, provided
that such rights were subject to the right of the vesselsof any State whose
vessels have fished regularly in that portion of the zone for the period of
five years.
In the opinion of the Icelandic Government such departure from the
12-mile rule would be disastrous for the preservation of the fisheries of
Iceland and its economy.
II. The Icelandic Government thinks that where a nation is overwhelmingly
dependent upon fisheries if should be lawful to take special measures, and
decide a further extension of the fishing zone for meeting the needs of such a
nation.
This idea was sympathetically considered by the third committee of the
Geneva Conference even though some representatives feared that such
departure from the general rule might open the door for abuse. The Icelandic
delegation therefore proposed that a possible disagreement should be settled
by arbitration. With this addition it was carried by the committee, but
rejected a1 the plenary meeting.
A similar thought was however expressed in a resolution proposed by
South Africa and carried with 67 votes with none against.
The Icelandic delegation however pointed out that this resolution could
only apply to areas of the high seas outside the generally accepted fishery
limits, as they might be at any given period.
It is necessary that the Coastal State can unilaterally include an adjacent
area in ils fishing zone, subject 10arbitration in caseof disagreement.
III. The lcelandic Government also most wholeheartedly agrees with the
thought expressed in the resolution proposed by South Africa:
"That where for the purpose of conservation ilbecomes necessary to
limit the total catch of a stock orstocksof fish inan area of the high seas
adjacent to a coastal State any other States fishing in that area should
collaborate with the coastal State to secure jus1 treatment of such
situation by establishing agreed measures which shall recognize any
preferential requirements of the coastal State relating to its dependence
upon the fishery concerned while having regard to the legitimate interests
of the other States."
On the other hand il does not think that this can satisfy the need of Iceland
of an adjacent fishing zone as suggested under II.
So far il seems impossible Io diversify the economy of Iceland. Therefore
the people of Iceland and ils Government see with apprehension the great
increase in the efficiency of the fishing fleets around Iceland.
If the efficiency improves with the same speed as it has done in the las1
years, il might cause overfishing to such anextent as to make lceland unin-
habitable. Therefore the Icelandic Governrnent urges fr.endly States to consider ils
spcc:al riiiilition and~CCCPI mc.i\ures lhcy woiild othcr\viss ihink unnecesssry
and iin;iccep~liblc a, .igcnerJl rulc of inicrniiiionril 13i<,.
The Embassy avails itself of thisopportunity to renew to the Ministry for
Foreign Affairs the assurances of ils highest consideration.
Bad Godesberg, August 5ih, 1959.
To the
Ministry for Foreign Affairs
of the Federal Republic of Gerrnany,
Bonn. Annex L.'
['ïr~~~rslorio11
The German Federal Foreign Ministry presents ils compliments to the
Lcelandic Embassy and has the honour to reply as follows to the Embassy's
Note of 5August 1959.
I. The Federal Government, too, deplores the fact thtt the First Inter-
national Conference on the Law of the Sea in Geneva, 1958, did not settle
the ouestion of the breadth of the territorial sea. The Federal Government
fails.'however, to understand the conclusions which the lcelandic Govern-
ment evidently draws from the discussions and results of that Conference.
(a) It is correct that during the 1958 Geneva Conference a proposal to
concede to coastal States fishing privileges in a zone of up to 12sea miles off
thc coüst received more votes than any other proposal discussed and voted
Lipon. But this proposal, which was made by the United States (A/Conf.l3/
L.29) contained a qualification to the effect that States which previously
used to fish in the zone between 6 and 12 sea miles would be allowed to
continue to do so. Only because of that qualification did the majority of
NATO States(encept Iceland and Canada) vote for the United Statescompro-
mise proposal.
(hJ The Federal Government cÿnnot agreeeither to the conclusion drawn
in the lcelandic Embassy's Note of 5 August 1959 from the interpretation
by the lnternational Law Comiiiission ".. .that international Inw does not
~ermil an extension of the territorial sea bevond 12miles"(Article 3. uara. 2.
8r the Report by the International ~aw~otknission). For this interb;etation
docs not mean that the extension of the territorial sea up Io 12 miles or a
unilateral claim to a fishing zone of 12 sea miles are consistent with the
applicable international law. Apart from the fact that the conclusion drÿwn
from Article 2, para. 3, of the Report of the lnternational Law Commission
is inconsistent with the wording of para. 3 of the same Article, the Rapporteur
of the lnternational Law Commission stated explicitly during the negotiations
in Geneva (at the 2lst meeting of the First Commission on 19 March, 1958,
Conference document A/Conf.13/C.I/L.I0, pp. 8 and 9) that the inter-
pretalion in Article 3, para. 2, of the Report, as quoted in the lcelandic
Note of 5 August 1959, "ne produit pas l'intention de la commission". The
Rapporteur continued to say ".. .en ce qui concerne une délimitation entre
3et 12milles, la commission s'abstint de la déclarersoit légitime soit illégitime;
elle ne se prononce pas là-dessus".
It is no1 possible. therefore. to invoke the interoretation of the lnternational
Lau, ~oinniissioii hr the purpose of siib~tïnti~tin~ the Icelandic vicupoint
that the ehten\ion of the territorial seï 10 12 rra miles is consistent tviih the
applicable internationallaw
(cJ II ISthe trderal Government's opinion thst neithcrthe discussions hcld
during the 1958Geneva Cunfcrence nor the votes on proponals rcliiting to the
Original tex1no1reproduccd. MEMORIAL ON JURISDICTION 109
various draft Conventions, particularly such proposais as fell short of the
necessarv two-thirds maiori-. eiïected anv chance in the ao~licable inter-
national-law. The unilateral proclamation-of claims is equali; incapable of
overriding the applicable international law, and it is therefore of no leral
relevance that a number of States have unilaterally proclaimed a fishing zone
of 12sea miles. For, accordingtotheapplicable international law, no State is
entitled to subject any part of the high seaseither wholly or partially to its
jurisdiction and thereby prejudice the rights of other States. The Federal
Government must therefore emphaticallycontradict the view expressedin the
Icelandic Embassy's Note of 5 August 1959 that a coastal State ". ..can
unilaterally include an adjacent areainits fishing zone, subject to arbitration in
caseof disagreement".
2. The lcelandic Note of 5 August 1959furthermore refers to the decision
of the lnternational Court of Justice in The Hagiie on 18 December 1951
in the British-Norwegian fishing dispute, comrnenting thereon as follows,
". ..the Court decided that Norway had the right to decide not only 'the
breadth of her territorial sea, but also to the rnanner in which il is to be
reckoned' ".
The Federal Foreign Office regrets having to point out to the Icelandic
Embassy that the lntcrnational Court of Justico made no such decision in
the said litigation, and that the phrase quoted in the Note of 5 August 1959
is not contained in the ReportsofJndgrneir~,Adi'isory Opiirioirsand Orders
1951, pp. 116-143, published by the lnternational Court of Justice. In fact,
the quoration appears to have been taken from the dissenting opinion of
Judge Alvarez (p. 153, /oc. cit.).
The decision of the lnternational Court of Justice or 18 Decembcr 1951
does not deal with the breadth of the territorial sca or of a contiguous fishing
zone (p. 126, lac. cil.) but merely with the question whether the methods
prescribed in the Norwegian decree of 12July 1935for the determination of
the baselinesare consistent with international law. On this point the Inter-
national Court of Justice savs on oa.e -32. [oc. rit.:"The delimitation of sea
lircss h~sli1v.t)~ lin iniernit.un.is\peci: itcannoi be depcndcni mercly upon
the irill of ihc co:isi:il Stak a, r..\prcsscd in its ni.iniciIJU. ,\lthough itis
true that the act of delimitation is necessarily a unilateral act, because only
the coastal State is competent to undertake it, the validity of the deliniitation
with regard to other States depends upon international law."
Hence the lnternational Court of Justice holds that the validity of the
delimitation of the territorial sca made by a coastal State depends upon
international law.
3. In substantiation of the lcelandic claim to a fishing zone of ,12 sea
miles il was stated in the Note of 5 August 1959 that owing 10 the growing
number and capacity of foreign fishing fleets the fish stocks in the \vaters
around Iceland were being increasingly over-exploited, the country thiis being
more and more deprived of the natural foundations of its economy.
The Federal Government is of the opinion that the available statistics on
fisheries do notjustify such a conclusion. Nor is that conclusion corroborated
by the results of other scientific studies. It is triie that the stocks of al1 fish
speciesare subject to considerable fluctuation becauseof continuous biologi-
cal and hydrographical changes; but so far it has not been possible, for
technical reasons, to exploit more than a fraction of the marine food re-
sources.
The economic limits to fishing in any given seaarea are far narrower thanthe biological ones, and thus nature will always restore the balance between
the intensity of fishing and the stocks of fish.
This is no1 Io deny, of course, that the stocks of certain species of fish
(e.n.. salmon. halibut. or other Rat fish) have in the oast been. or mav in
be, over-exploGed at limes. ~owéver, Io meet iuch a danger, arian-
gements can be made by way of international conventions on fishing that
would be acceptable to~all fishing nations parties to them. Such regional
conventions on fishing were concluded already before and soon after World
War II, and experience shows that this is the best way of dealine with the
problem of over-exploitation of fish stocks.
4. The Federal Government does not fail Io see that the question of the
Icelandic fishing zone is of the greatest importance to Iceland. It has repeat-
edl. .xoressed Io the Icelandic Government its ereat u-derstandine for the -
problems of ihc Icelandic ccononiy Nevcrthclcss. withoui nanting IO cxamtnc
the qucsiii)n of the interprc.taiiun and a~plication or the Kcsolution propùsed
bv the South African -n~ ~ al the ~~;st~~-neva Conference on the- L~ ~ ~ ~ ~ ~
of the Sea with regard to regions particularly dependent on fisheries, the
Federal Government must point out that that Resolution, too. does in no
c;isc justiry :iny unilaterdl lcçlandic mcxsurcs. since il incrïl) proiidcs Tor the
clïboration of ngrecd medsiircs and explisiily 13)s down ihlt ci,njidcraiion
muhi bc givcn Io the iiltïrcsis ufotIlcr SI.ltïs.
The Fcdcral Foretgn Onicc ïvails itself or [hi\ i~pporiiinit) tu rcnca to thc
Icelandic Enibasry the assurance, of ils htgh considcr<ition.
Bonn, 7 October 1959.
(L.S.)
The Icelandic Embassy,
Bad Godesberg. MEMORIAIO . NJURlSDlCTlON 111
Annex.C
AIDE-MÉMOIRE OF THEGOVERNMENT OF THEFEDERALREPUBLIC OF GEKMANY
01:12 APRIL 1961
From th~~-er~al~Note of the lcelandic Ministrv for Foreien Afiairs. dated
Marih 13, 1961, the Government of the ~edeki~epublic of Germany has
learned with interest that the Giwernment of the Republic of Iceland has
settled an agreement with the Government of Great Britain concerning the
question of fishery limits. This fact induces the Embassy, according to
directions received from ils Government, to submit to the lc,elandic Ministry
for Foreign Alfairs the propordl also Io discuss this question with the Govern-
ment of the Federal Republic of Germany in order to come to an Icelandic-
German agreement. Il may be recalled that the Embassy already had sug-
gestedsiich disciissions, altaining a peaceful and appreciativesettlement of the
fishery dispute, in its Verbal Notes from June 9th and July 16th. 1958-501-
82-.
From the above-mentioned Verbal Note of the lcelandic Ministrv for
Foreign Afiairs the Government of the Federal Republic of~ermany~ikewise
learned that the Government of the Republic of Iceland hdd issued new re-
eulations concernine the fisherv limits of Iceland. in which the new base-line.
Xpposite IO the old base-line, has been changed o'n several points so that the
fishery iimits now became still more enlarged.
The Embassy of the Federal Repiiblic of Germany regrets, according to
instructions given by its Govcrnment, ta have to inform the Ministry for
Foreign Afiairs that the Federal Republic of Germany not earlier can regard
~hes~ ~ ~ ~sherv limits aswell asthose limits ordained on June 30th. 1958. as
valid in law for-itself lhin both ~iovernments will come to an undeistanding
about this question. Moreover, the Embassy begs to remind of the fact, that
the l~-al .oints of view of the German ~ederal ~overnment to this auestion
hïw heen Idid down in ihe aboie-nientioned Verbal Notes of ihe Enibï,sy
irim Jiine 9th and July 16th. 1958. Ar irell as In the Verbal Noie of the Ger-
man Forcicri Oltice irom Oci»ber 7th. 1959-500-80.52 1-. rl~rcctcrl to the
Einh:jsiy oïthe Rcpubli; <ifIcelanJ in R<inn.
Airxiiing a .<ion conilusion of such 3n ïgreenicnt and isr the purposc of
3)aidiny nny incldents. the Government <ithe Fcdcral Keiiublic. ho%rc\er. 1.;
prepared to recommend to the German deep-sea fishini-boats to observe
the fishery limits, also with its new base-line, claimed by the Icelandic Govern-
ment. But. in order not to continue this state of uncertainty too long time. the
Embassy asks the Ministry for Foreign Afiairs to take into consideration a
soon beginning of discussions about this question and would be thankful for
an information about date and place of those talks.
Reykjavik, April 12, 1961. Annex 1-1
The lcelandic Delegation alrcady has explained the dificulties with which
the lcelandic Government would be faced if the rights already established for
British trawlers in lcelandic waters were 10be extended to German trawlers.
It was then said that, on the 0-ï harid, we were more or less forced into
making concessions Io the British and ihr!, on the other hand, il would be a
foregone conclusion that other nations would make similar demands, as
indeed they have already done.
The lcelandic Delegation would submit, in view of the difficuliies involved,
that the future settlement of this question, as far as German trawlers are con-
cerned, should be based on a realistic endeavour which woiild take into
accountthe interestsofour twocountries. On this basis and realizing the good-
will which the Federal Government has showi in this matter the lcelandic
Government is now prepared to grant a period of adjiistment to Gcrman
trawlers in lcelandic waters, but in that connection the following points should
be kept in mind.
(1) Base-lirresI.t is quite clear that tU.K. Government, from their point
of view, made certain concessions in this field. The British negotiators
realized that this was a relatively easy matter for the U.K. Government
becausethe Geneva Confcrcnce on the Law of the Seaadopied a raiher vague
formula in this respect. We know that German trawlers, generally speaking,
fishfarther off shore than the British do and, therefore, it might bc possible
for us to agree on other base-lines which would no! unduly harni the inter-
ests of German trawlers. What we have in niind in this connection woiild be
ü further straightening out of the base-lines for instance along the south
Coast.
(2) Tlie dtiratioi~oIII?ailj<istt~r~rtriod. The period of adjustment would
come to an end at the time provided for in the Anglo-lcelandic Agree-
ment.
(3) RefererrreIo theIiiterirarioirolCortrrof JrlsriIt.is only fair to say that
it should not be necessaryfor the Federal Republic to insist on this point for
the obvious reason that if lceland were to extend the limits beyond 12 miles
the U.K. Government certainly would refer that matter to the Court, on its
own initiative.
(4) Ecoirornicprobletns.It is a matter of great concern to the lcelandic
Government that the present groiipings ofthecountries of Western Europe
into the Common Market and EFTA will make lcelandic exports of fish
products to Europe increasingly diiTicult. In this connection we would mention
especiallr the outer tarifl of the Common Market wbich is due to be intro-
du~cedshortly and will greatly aflect the Icelandic trade with the countries of
the Common Market.
It would be of great interest to us to know to what extent the Federal
Republic would be prepared Io take our interests in this field into account.
The Icelandic Government is now implementing a programme of stabili-zation in close co-operation with theOEECand the IMF.In this connection
the Icelandic Government is preparing plans for the diversification and
strengthening of the lcelandic economy. This, inuropinion, would provide
a fertile field forclose co-operation between Ourtwocountrieswhichweindeed
look forward Io and hope for.
Bad Godesberg, June ZOth,1961 Annex J
1. In connexion with plans for the development and diversification of the
basisof the Icelandic economy the FederalGovernment is prepared to give
sympatheticconsideration to ?ny wishes the lcelandic Government may
have for technical and economic assis1:rice.
In particular the Federal Government isprepared toexamine favourably,
and oossiblv to send to Iceland exoerts for thi..ouroos.. Iwo. .oiects in the
field; of ele~.lr.ficati<in and exten\'i<inof hydru-clccand iherm.il pouer-
stations uhich hii!,c alrciiJ) bccn Jiscu>,cd niih the compcicnt :igen:ics uf
the Federal Government. and concerninp. which the lcelandic Government
\iiIsubmit documcnt~ to the FcJcraI ~;&crnnieni.
2. Should ihc Iccl~ndic Go\ernmcni considcr ds5ocidiion uith the EEC. the
Federal Government would be ore~ared to advise itas to the oossibiiities
envisaged for associatiiin in theEEC treaty.
3. Therc 1sno renron IOsuppi)se ihat the prcsent degrce of Iiberalizatii)n of
tradc in fiih and fibh orodi~ctsin the Feder31Hcoublic will hî reduccd. unleis
the conditions for s;ch liberalization underg; profound changes.
4. The Federal Government shall continue to take a favourable attitude
towards future direct landines bv lcelandic fishinn trawlers in German har-
bours. It requests, however,-thai lceland follows fhe marketing recommen-
dations of the German Marktbeschickungskommision (Market Supply
Commission). in order to avoid an undesirable deDression of orices
5. The ~edera1'~overnment has already, with regaid to the EEC Commis-
sion, taken the possible steps under the EEC treaty to ensure a salisfactory
supply of fish and fish products from third countries to the German mar-
ket.
1 Original text no1reproduced MEMGRIAL ON JURISDICTION 115
Annex K
EXCHANG EF LETTERB SETWEEN THE ICELANDIC FOREIGNMINrsTER AND THE
[Translarion1)
Reykjavik, 19July 1961
Excellency,
In connexion with the Agreement between the Government of the Republic
of lceland and the Government of the Federal Republic of Germany which
was concluded today and is to take immediate effect, 1 have the honour to
inform you that this Agreement requires the approval of the Althing and will
be submitted to the Althing when it meets in the autumn.
1 would request Your Excellency to communicate Io me your agreement
with the contents of this letter.
Accept, Excellency, the expression of my highest consideration.
(Signed) Gudmundur J. GUDMUNDSSON.
His Excellency
the Ambassador of the
Federal Republic of Germany
Hans-Richard Hirschfeld
Reykjavik.
Reykjavik, 19July 1961.
Excellency,
1 have the honour to confirm the receipt of your letter of 19 July 1961,
which reads as follows:
"ln connexion with the Agreement between the Government of the
Re~ublic of Iceland and the Government of the Federal Republic of
Ge;many which was concldded roday and tr to takc immcdiate effect, 1
have the honour to inform you that this Agreement requtrcq the approval
of the Althin-. and will be submitrcd to rhe Althtng wheilmeets in the
autumn.
1 would request Your Excellency to communicate to me your agree-
ment with the contents of thisetter."
1Originaltext not reproduced. 1have the honour Io communicate 10 Your Excellency my agreement with
the contents of the above letter.
Accept, Excellency the expression of my highest consideration.
His Excellency
The Minister for ForeignAtfairs
of the Republic of Iceland
Mr. Gudmundur J. Gudmundsson
Reykjavik.
Memorial on Jurisdiction submitted by the Government of the Federal Republic of Germany