INTERNATIONAL COOF JUSTICE
PLEADlNGSORALAKGU MENTS, DOCUMENTS
FISHERIESJURISDICTION CASES
VOLUME 1
(UNITED KINGDOMOFGREAT RRITAIAND NORTHERN
IRELAND VICECAND)
COURINTEKNATIONALE JUSTICE
MÉMOIRES,PLAIDOIRIET DOCUMENTS
AFFAIRES DE LA COMPÉTENCE
EN MATIÈRE DE PÊCHERIES
VOLUME 1
(ROYAUME-UNIDE GRANDE-BRETAGNEET
D'IRLANUEDU NORDc.ISLANDE1 ORAL ARGUMENTSON KEQUEST FOR
THE INDICATION OF INTERIMMEASURES
OF PROTECTION
MLNUTESOF THE PUBLIC SLTTINGS
helrlnt tlie PeacePalace, TlreHagrte,
orr1and 17 Aitgrrsr1972,PresidetrtSir
Miil~utnZafrirllaKlranpresifilg FIRST PUBLIC SITTING (1VI11 72, 10 a.m.)
Prescrit: Presiderit Sir Muhammad ZAFRULLAKHAN; Vice-Presidcrit
AMMOUNJ;rtcjgesSir Gcrald FITZMAURICP E, DILLANERVO,FORSTERG , ROS,
BENGZON, PETRÉN,LACHS,ONYEAMA D,ILLARD,IGNACIO-PINTO D, CASTRO,
Mo~ozov, JIMÉNEZ DEARECHAG ARe~istrur AQUARONE.
Also present:
For (lie Goi~errirofrtlre UriitedKirigrlorn:
Mr. H. Stccl, Legal Counsellor, Foreign and Commonwealth Office, us
Agerrr;
Rt. Hon. Sir Peter Rawlinson, Q.C., M.P., Attorney-General,
Mr. J. L. Simpson, Second Legal Adviser, Foreign and Coinrnonwcalth
Ofice,
Professor D. H. N. Johnson, Profcssor of International and Air Law,
University of London,
Mr. G. Slynn, Member of the English Bar,
Mr. P. Langdon-Davies, Mcn~berof the EnglishdBar, us Coiriuel;
Mr. P. Pooley, Assistant Secretary, Ministry of Agriculture, Fisheries and
Food,
Mr. G. W. P. Hart, Foreign and Commonwealth Office, as Advisers. OPENING OF THE ORAL PROCEEDINGS
The PRESIDENT: The Court meets today to consider a request for thc
indication of interini nieasures of protection, under Articlc 41 of the Statute
and Article 61 of thc Rules of Court, filcd by the Unitcd Kingdoni of Grcat
Britain and Northcrn lreland on 19 July 1972, in the Fislieries Jtrrisdictiotz
case, between the United Kingdom and the Republic of Iceland.
Thc proceedings in this case were bcgun by an Application 1 by thc United
Kingdoiii, filcd iiithe Registry of the Coi~rt on 14 April 1972. Thc Appli-
cation founds the jurisdiction of the Court on Articlc 36, paragraph 1, of the
Statute, and an Exchange of Notes bctween the Govcriiinent of the Unitcd
Kingdoiii and the Government of 1.cclaiiddated II March 1961. The Appli-
cant asks the Court to declare that thcre is no foundation in international law
for the clainl by Iceland to be entitled to extcnd its fisheries jurisdiction by
establishing a zone of exclusive fisheries jurisdiction extending to 50 nautical
miles from the relevant baselines, and that that claim is thcrefore invalid, and
that questionsconcerningtheconservation of fish stocks in the waters around
lceland are not susceptit$e in international law to regiilation by unilateral
extension of exclusive fisheries jurisdiction but are iiiatters that inay be
regulated by arrangements between the countries concerned.
The Goveriinient of lceland was infornled forthwith by tclcgrain 2 of thc
filing of the Application, and a copy thercof was sent to it by airiiiail the
same day. On 31 May, a letter 3was rcceived in the Registry froin thc Minister
for Foreign Affairs of Iceland, dated 29 May, in which it,was stated (inter
dia) that there was on 14April 1972, the date on which the United Kingdoin
Application was filed, no basis undcr the Court's Statute for the Court IO
exercise jurisdiction in the case, and that an Agent would not be appointed to
represent the Governnient of Iceland.
On 19July 1972, the United Kingdom bled a rcqucst 4 under Article 41 of
the Statutc and Articlc 61 of thc Rules of Court for the indication of interim
nleasures of protection. 1 shall ask the Registrar to read froni that request the
details of the nleasures which the United Kingdoni asks the Court to indicatc.
[The Rcgistrar reads the dctails'of the rneasurcs 5.1
On 19July, the day on which the request was filed, details of the ineasurcs
requested were coininunicated to the Governnient of lceland by tclcgram 6,
and a complete copy of thc request was sent to it the same day by esprcssair
niail. In the telegram and the lettcr enclosing the copy of the request, thc
Governiiient of lceland was inforined that in accordance with Article 61,
paragraph 8, of the Rules of Court, the Court was ready to receive the obser-
vations of lccland on the request in writing, and that the Court would
Secpp. 1-10,supra.
2 II,D. 371.
3 II,p. 374.
Secpp. 71-78, supra.
See pp.77-78, stipra.
6 II,p. 385. OPENLNG OF THE ORAL PKOCEEDINGS ON INTERIM MEASURES 93
hold hearings, opetiing un Tucsday, I August at 10 a.ni., in ordcr to give the
Partiesthe opportutirty of prescniing their observiitions on the rcqliest.
On 29 luly 1972,a telegram 1dated 28 July waç rcceived Troin the Ministcr
for Foreign Affaiss of Iceland, in wliiçli,üftcr reiieraling tliat therwas no
basis undcr the Statutc for the Couri to excrcise jurisdiction, he statcd that
there wüs no basis for the reqiicst tif the United Kingdom and that. witho~it
prejudicc to any OF its previous argiiiiietits, the Governinent of lccland ob-
jected specificallyru tlie indicatioii by the Court of provisional rileizsureun-
der Articlc41 of the Statute and Article 61 oT the Riiles of Co~irr ivlicre no
'basisfor jurisdiction is cstablished.
1 note the piesence in Court of tlieAgent and Çounsel of the United
Kingdom, and declare the oral proceedings on the rcquest Tor thc indication
ofintcrirn nwasilrcs or protection, open.
II,p. 388. FISHERIESJUKISDICTION
ARGUMENT OF SIR PETER RAWLINSON
COUNSEL 1:OR THE GOVERNhlENT OF THE, UNITED KINCDOM
Mr. STEEL: May it please thc Court; with the Court's permission, the
Attorney-Ccnernl, Sir Petcr Rawlinson, will put the submissions of the
United Kingdoin Government.
Sir Petcr RAWLINSON: May it plcase the Court:
In this request, Hcr Majesty's Govcrnrnent are sceking froni tliis Court an
indication of interin? ïneasures of pratcction. Iidoes sr?at a tinie when the
Court has nat considcred the merits of the case and whcn the respondent
Party 1s not beforc the Couri and appears to be chüllcnging the righi of the
CotirE to exercisc jurisdiction. Her Majesty's Goveriiiiient are fiiily conscious
of thc graviiy uf this reqiiest, athey are üpprcciarive of the steps whicli the
Court has iakcn, under Article 61 (2) of its Rules, to give the rcqucst priority
and to treat itas a math of Lirgency,
In theabsence of any representa~ivc of the Iceland Governriient, it is rny
duty to the Court not only to explain the facts and circuiiistances which make
ilncccssary 10 niüke rhis application bul also to set o~irthe legal priiiciplcs
which, in my subiiiission, mükc it a proper case for the exercisc ofthç Cwurt's:
poiver.
The rcason why Hcr Majesty's Government lias been forced ro institute
ttiese proccedings is tlrat Iceland has tlireatened tu cxterid the limiis of her
fiatieries jurisdicrion unilaterally ru ü distance of 50 iiiiks from baselines
drawn round her coabts aiid thereüfter to exclude froiii tiiat part of the high
seas included within ihosc cxtended lin-iits al1fishingvesselsof other nations,
includiiig those of the United Kiiigdoirr. This, iii the submission of Her
l Majcsty's Governnient, 1swithout any justificatioii in international law.
Moreaver, iiotwithstanding the pendcncy of ihese proccedinçs before the
Court, Icelünd, lias persisted in her deterniinaiion to pui thc restrictions into
efïecl un ISeptembcr next.
The fislring vessels of the Unitcd Kingdon-i and other nations havc for veiy
iiiany ycürs shared witli those of Lccland the valuable fishiiig çruunds in the
high seas in tlic area of Içcland.
On 11 Marcli 1961 Her Majesty's Governtiient entcrcd into a fornial
açreernciit with thc Governmcnt of lceland that, in view uf thc cxccpt\oniii
dependcnce of Ihc Icelandic nation iipon coastal fisherics for theii livclihood
iind econoriiic dcvelopment, Her Majcsty's Governinciit woiild no loiigcr
objtct to a 12-niile Ming zone around Iceland, nieasured frorii certain
speçificd baselines. This agreement was contained in an Exchançe of Notcs,
which are setout in full EnAnnex A to the Application initiaiing pioceedings
- in this case,
The Icelandic Noie, thc contents of wt~ichwcrc accepied by 1-lerMajesty's
Governnient, contained the rollowing passage:
"The Icclandic Covcrnment will conLinue to work for ihe implement-
ation of thc Althing Rcsolution of May 5, 1959, regarding thc extension
of fisherics jurisdiction around Iceland, birt shall givc to the United
Kingdoiii Governinent six nionths' notice of siich extension and, in case ARGUMENT 01: SIR PETEK KAWI-INSON 95
of a dispute in relation to such extcnsion, the niatter shall, at the request
of either party, be referred to the International Court of Justice."
The resolution of tlic Althing (\+(hichis the Parliament of Iceland) to which
that Note referrcd had declared that a recognition of the rights of lceland
to fislicries liinits extending to the whole continental shelf "should be
sought".
In the submission of Her Majcsty's Governiiient, the meaning of that
agreement is beyond doubt. If lccland should scck to extcnd her fishcries
liiiiits beyoiid the agreed 12 miles, and should any dispute arisc, the rnattcr
should,at the rcquest of cithcr party, be referred to this Court.
Now Icelaiid has sought to extend her j~irisdiction. She has given due noticc
of her intention. A dispute has ariseri.
On 14 July 1971, the very day on which they took ofice, tlic lcelandic
Govcrnnient issued a policy stateiiiciit aiinouncing thcir intention toextend
fishery liniits to 50 niiles with eiTect from I Septeiiibcr 1972. This announ-
ceniciit was iiiadc witho~it aiiy prior consultation witli the Unitcd Kingdoin
Govcrninent.
Since Her Majesty's Governmcnt have at al1 tiincs denied the right in
international law of Icelaiid to exteiid the liinits of licr fisheries jurisdiction
unilatcrally, a dispute, in iny subiiiission, thcre~ipoii arose. It is a dispute
within thc definition of the Court in the 1i4rivrotzrtnrifasc (P.C.I.J., Series A,
No. 2, p. II), namely "a disagrecnient on a point of law or fact, a cotiflict of
lcgal vietvs or of interests betwecn two pcrsons". The Icelandic Goveriiincnt
havc recognized that their proposcd action would cause great diniculties for
the United Kingdoin fishirig industry and professed IO be willing IO discuss
what tliey have callcd "a practical sol~ition of the problems involved".
Accordingly, Her Majesty's Governiiient did not iinincciiately rcfer the
inatter to thisCo~irt. 011 thecontrary, tlicy first sought to scttle the matter, if
possible, by agreement.
The first round of telks betwccn officials of tlic two Governments was held
in London on 3 and 4 Noveiiibcr 1971. In vieiv of Iceland's professcd concerii
about the danger to fish stocks of ari cxpaiision in fishing by foreign vessels,
the United Kingdom delegatcs at that very carly stagc thereupon proposcd
that the solution of the problciii which Ii~idariscn betwecn the IWO Govern-
ments inight be a catch-limitation schcine iinposed on tlic United Kingdom
fishing fleet. This would. in the firstinstance, be a bilatcral Anglo-lcelandic
agreement; but it would stand a vcry good chance of subsequcnt approval by
the meinber States of the North-East Atlantic Fisheries Commission if il
were an alternative, and not coiiipleiiicntary, to the extension of lcelandic
limits.
This proposa1 was elaborated at a ineetiiig in Rcykjavik on 13 and 14
January 1972when the British delegation proposed spccitically that the British
catch in the lcclandic arcLiniight be limitcd to 185,000 tons a year, a rcduciion
of 22,000 tons from tlic 1971 levcl.
At this stage, the eiidcavour of the United Kingdoin ncgotiators was to
persuade the lceland Governincnt that, even if lccland rcgarded hcr fishery
interests as of over-riding importance, thcre was no need IOrenege upon the
1961 Agreenicnt, and to dcny that this Court had jurisdiction and to proceed
to an extension of liinits which would have no basis in iiitcrn~itioiial law.
Iccland's fishcry interests could bc safeguarded by an agreement 144thH'er
Majesty's Government which there was every reason to think could and would
be followed by agrccments tvith other governmerits; but hopcs th211lcclandmight choose the path of agreement rather than that of conflict were doomed
to disappointinent.
On 15 February 1972, the Althing passeda resolution which reiterated the
intentionto extend Iceland's fisheries limits to 50 miles. On 24 February 1972,
the Governinent of lceland delivered an aide-mémoire to Her Majesty's
Governinent which in effect served six iiionths' notice on Her Majesty's
Governinent that the extension of fisheries liniits to 50 miles would be put
into cffect notlater than 1Septcmber 1972.Aftcr receipt of this aide-mémoire,
negotiations had, in the words of the Court in the Right of Passage case
(I.C.J. Reports 1957, p. 145), "reached a deadlock". Accordingly, the United
Kiiigdom Government filed the Application instituting these proceedings on
14 April 1972.
However, discussions 1 between the two Governments did continue; but
on the British side they now had a different objective. Although Her Majcsty's
Government Iiad concluded that thcy must contest before this Court the
legality in international law of the purported unilateral extension by lceland
of fishery liinits to 50 iiiiles, they sought to reach an interiin arrangcinent
which would apply iintil the judginent of this Court in the prescnt pro-
ceedings. Such agreement would have made it unnccessary for Her Majesty's
Government to request the indication of provisional measures.
The Governinent of lceland was informed tliat the catch-limitation plan,
which the British d'clcgation had put forward in January, was to be regarded
as a formal British proposal to foriii the basisof an interini arrangement, and
that Hcr Majesty's Govcrnment awaitcd the considered response of the
Government of Iceland. The considered rcsponse, when it came, was rejection.
Among the Icelandic objections \vas that a catch-limitation scheme would not
be capable of supervision and verification by the lcelandic authoritics. Only ,
by the operation of controls of ports of landirig in the United Kingdoni would
it be possible to establish whcii the catch lirnit had becii reachcd.
In order then to nicct this objection, the United Kingdoni delegation next
offered ü schctne of "effort limitation", that is to Say, a sclicnie whicli \vould
restrict the tiine spent on the fishing grounds by United Kingdom fishing
vesselsof differing efficicncy. The restrictions would be devised so as to limit
the anioiint of fish caught to the Jevel of 185,000 tons proposed under the
catch-limitation schenie, and the Icelandic authorities would be in a position
to check indcpendeiitly, froiii their own observations, that the agrecd res-
trictions were being observed. This proposal too was rejected; apparciitly
because, although the lcelandic authorities would be able to check for thcin-
selves,they would not be able to show the public that British ships were bcing
visibly restricted in their activities.
In an endcavour to mecl this latcst objection, Hcr Majesty's Govcriiiiient
discusscd with tlic Icelandic Governnient yet a third proposal, by which
ccrtain areas would, at ccrtain scasons of the year, be closed to United
Kingdoin vessels. Her Majesty's Government \vere willing to coiiteinplate
such an arrangemcnt so long as it could bejustificd on conservation grounds,
or on grounds of the preference which Iccland, as a coastal State dependcnt
on fisheries, niight claim.
The negotiations failcd, because again and again tlic Unitcd Kingdoni
negotiators \vcre inet with somc lcelandic requireinent which was inconsistent
with the prcservatioii of tlic rights of both Parties pending the judgnient of
1 II,pp. 391-392.on the nierits, to uphold the contention of the United Kingdom that such
unilateral excl~~sionby the lceland Governinent is unlawful.
Accordingly, circunistances have arisen which, in iiiy subniission, require
the indication of provisional nieasurcs by the Court, under Article 41 of the
Statute, to preservc the rights of the Parties. The right of the Court to indicate
such iiieasures in the appropriate circumstanccs is firnily grounded: first, in
the Statute of the Court; sccoiidly, in the Rules which the Court has made in
furtherance of its Statute; and, thirdly, in the practice of the Court. To sub-
stantiate tliat subniission, 1 invite the Court to consider the principles and
'
law whicli should guidc its decision upon this Application.
Article 41 of the Statiite recites that the Court "shall have the power to
indicate, if it considers that circuiiistances so rcqiiire, any provisional
measiircs which ought to be taken to preserve the respective rights of eithcr
party". As with siiiiilar reinedies in municipal law, the Court eiijoys a dis-
cretion, but it is a discretion which niust be exercisedjudicially.
Thlis the Court will not iiiake ail Order: first, if it considers tliat in the
circunistanccs there is no need for intcriiri iiieasures; aiid, secondly, if, in the
opinion of the Court, thcre is no real urgency. Moreover, the Court itself may,
al any tirne, inciicatc interini mcasuresproprio motrc.
Witli regard to the principlc that an applicant must satisfy the Court iipon
thc urgency for an interini order, 1cite the Irlr~rllutirlelcase (I.C.J. Reports
1957, p. 105): that casc concerned the possible sale of some shares in the
General Aiiiliiie and Filin Corporation by the United States Governnicnt.
Those shares, which had beconic vested in the United States Governnicnt as
the rcsult of trading-with-the-eneiny legislation, were bciiig claimed by the
Swiss Governnient as the propcrty of ils nationals. The lattcr Government,
fearing tliat the United States Government was about to sel1 the shares,
requestcd the Court to prevent it froiii so selling, "so long as the procecdings
in this dispiitc are pending" (p. 106).
In principle, that casc wascertaiiily a suitable casc for the grant of interiiii
relief; biit thc Court declincd to grant such relief on evidciicc being produced
that the sharcs could not be sold until after the tcrrnination of judicial pro-
ceedings in the United States, in respect of which there was no likeliliood of a
speedy conclusioii; and furthcrmore, upon the United States Government
giving an undertaking that it was not taking action at that tiiiie even to fix a
tirne schedule for the sale of the shares.
On thosc facts, thcrc clearly was no urgency in that case, and the Court
understandably denied iiitcriin relief.
Contrast thosc facts with the facts in this dispute. Herc the Governnicnt of
lceland is preparing to take within a iiionth action which, if the Court should
find in favoiir of the United Kiiigdorn's claini on the merits, would rcnder
largely nugatory and inenèctive any jiidgment of the Court.
Moreover, although Iceland's proposed mcasures only take efcct on
I September, in view of the necd for fishing coiiipanies to plan in advance the
grounds to which they direct thcir vessels,and that a voyage to lceland takes
perhaps three wecks to prcpare and undertake, such iiieasures already
impedc the operations of the United Kiiiçdoiii fishing industry. Thcrefore,
on the issiie of urgency, I subniit, there could hardly exist a clearer case.
Thc next condition for the granting of interiin relief is that the rileasures
reqiiestetl niiist be for the piirpose of preservinç the rcspcctivc rights of the
parties. It wqs because the Permanent Court dccided, oii the facts, that this
condition was not prcsent that it denied Gerniany interiiii relief in the Polish
Agruriun Reforrn case in 1933 (P.C.I.J., Series AIB, No. 58). In that case AKGUiCfEN TF SIR PETER KALVLINSON 99
Geriiiany asked the Court to declarc that Poland had, through its agrarian
reforiiis, coniniitted violations of thc Polish Minorities Treaty of 28 June
1919. Gerniany also reqiicsted the Court to indicate interini incasures "in
order to preserve the status qiro until thc Court lias delivcred final judgnient
in thc suit subiiiitted by the Application". Thus Gcrniany was asking the
Court to order Poland to suspend its agrarian reforni prograinine as it
applicd to Polish nationals of German race.
The Court dcclined to niake an Ordcr on the ground that the essential
condition, which iiiust ncccssarily be fulfillcd in order to justify a request for
the indication of iritcrim riicasures, is that such riicasures "should have the
effect of protecting the rights forming the subject of the dispute submittcd to
the Court" (p. 177).
Taking what Profcssor Vcrzijl has described in The Ji~risprrirlerrceof rlte
Worlrl Corrrr (Vol. 1, p. 34j) as a "fornialisticview of the iiiatter, the Court
held that interini measures werc not appropriate in a case wlicrc the subject
of the dispute submittcd to thc Coiirt concerricd only past violations of a
treaty.
Baron Rolin-Jaequeiiiyns however declarcd that iiiterim iiieasures should
havc been ordered, since thcir indication "would considerably facilitatc the
reparuiioir-so far as may bc necessary-of these riglits in the foriii of their
preservatioii, rather than by conipeiisation for thcir loss" (p. 180).
Judges Scliücking and Van Eysinga also disagreed with the rnajority. They
said:
"Having regard to the coiitinuo~is character of the acts impeached, tlic
undersigned consider that any atternpt to read into tlic words forniulating
the object of the disputc, in thc Application instituting procecdings, a
definite distinction betwcen.acts wliich have alrcady becn accoinplished
and thosc which belong to the future, wo~ild be ail utter distortion of tlie
clear nicaning of the Application." (P. 186.)
In a powerful opinion, J~idgeAnzilotti said tliat the Gcriiian.Applic:ition
was open to different intcrpretations, and on a point on which perfcct clarity
was cssential. He could, he said, "readily understand that the Court should,
on tliat ground, refiisc to grarit the reqiicsi for interiin iiiensures of protec-
tion". But. and this is important, Juclge Anzilotti hcld that "this slioiild not
prejudice the Gcrman Goverriiiient's right to subniit a fresh application
indicating the siibject of the suit with thc necessaryclearness and prccisioiis,
and to follow it iip by a fresh Reqciestfor the indicatioii of interiiii nieastires
appropriate to thc rights claimed" (p. 182).
The Judge considcred that "if thcrc was evcr a casc in which the application
of Article 41 of tlie Statute woiild be in cvery way appropriate, it would
certainly be so in the case beforc us".
This was becausc the groiiiid of tlic coiiiplaint \vas acts of expropriation
involviiig discriniinatory treatnicnt of Polish citizens of Gcriiiaii race,
contrary to the Minorities Treaty.
"Founding itself on this rcason [the leariicci Judgc continucd] it [tlie
German Goverriiiicnt] asks that thc expropriations now in progress
should bc suspendcd, as an interiiii measurc of protection, until the
Cocirt has finally dccided whcther the said cxpropriations arc lcgal or
illegal.
If the s~rmt~~uriaogrii~iowhich is characteristic of a procedurc of this
kind, enabled us to take into account the pos.si/~ilitj~of thc right claimed
by thc Gerinan Government, and the possi/~iliry of the danger to wliich 00 FISHERIES JUHlSDlCTlON
that right was cxposed, 1 should Find it dillicult to iiiiaginc any rcqucst
for the indication of intcriiii rneasurcs inore just, more opportune or
iiiorc appropriate than the one which we are considering." (P. 181.)
Tliat then \+lasa case wlicre the Application iiistitutingproceedings was
deposited oii 3 July 1933and was accoiiipanicd by a rcquest for the indication
of interini incasures dcposited on the saiiie date. Certain observations werc
rnadc by the Partics bcforc the Court lcss than three wccks latcr, and in the
course of these observations, thc rcpresentativc of the Rcspondeiit challenged
both the admissibility of thc Applicant's claiiiiand tlic jurisdiction of the
Court (P.C.I.J., Serirs C, No. 71, pp. 41, 54). Jiidgc Anzilotti on a preliiiiinary
vicw in that casc, and takiiig into accouiit iiierely a possiblc danger to a
possiblc right of thc Applicant, was preparcd to order thc Respoiidcnt to s~is-
pend a major prograiiiinc of agrarian reforni tüking placc in its own tcrritory.
Thesc scparate opinions, 1 submit, are important becaiise al1 the Icürned
judges wlio expresscd thein obviously took a bfoad vicw of the Court's
functioii on the principle of intcrini relief.
A iiarrower vicw of the Court's fiinction may be found in the preaniblc of
the Order iiiadc by Presidcnt Huber in thc Sirio-LIel&~iaTirrentycasc in 1927
whcrc he suggcsted that ail infraction of Belgium's rights uiider the Treaty
of 2 Novembcr 1865 inight occur; that "such infraction could not be made
good siniply by thc payiiient of an indeiiinity or by coiiipensation or res-
titution in somc other matcrial form"; and tliat "thc object of the iiieasurcs
of intcriin protcction to bc iiidicatcd in the present case niust be to prevcnt
any rights of this iiaturc froiii being prcjudiced" (p. 7).
Tlic cautious approach of President Hubcr, who at 'firstideclincd to inakc
an Ordcr but latcr changcd Iiis opinion on receiviiig iiiorc documentary
cvidence, is ~inderstaiidable wheii it is rcciilled that this was the first request
for the indication of iiiterim iiicasLires to coiiie beforc the Pcrinanent Court,
and that under thc Court's Rulcs, as thcy tlicn werc, the Court, and evcn the
Presideiit aloile, hüd power to ordcr inieriin iiieasures witliout eveii hearing
the Partics.
Evcii so, thc Presidcnt did in fact inakc an Order in that case, granting
protcction, itrter ali"against any scquestration or scizure not in accordancc
with gcncrally accepted principles of international Iaw and against any des-
truction other thaii accidental". Moreovcr, that prirticular rncasurecoiiccrncd
protection against scqiiestration or seizurc of propcrty and shipping, injuries
which could Iiavc becn iiiade good "sirnply by the paynient of an indemnity
or by coiiipensatioii or restitiition in soine othcr material fortn".
F~irthcrmorc. thc Presideiit !vas prepared to niakc an Ordcr dcspitc the
fact that he had not heard argurneiit on China's conterition that thc Treaty of
1865had ccased to be cnèctivc. It is to be noted that the President's Order led
to a rcsuniption of iiegotiatioiis betwccn the Partics which provcd succcssful.
In thc present casc, acccpting thc narrowest possible vicw of the function
of interini rneasures, namely protcction against irremedirible damage on'ly,
the Unitcd Kingdoin, for rcasons whicli have been set o~it in the written
request, and which 1shall cxplain fiirthcr, is cntitled to relief. But the Court
has actcd upon a iiiuch broader view of its function and rolc under Article 41
of its Statutc.
This broader vicw was clcarly stüted by the Perrnanciit Court in the
casc of the EIectricity Cornparli,nJ Sofia atirl R111gnrir(1P.C.I.J., SeriesA/B,
No. 79) in 1939 whcn it süid that Article 41 of the Statute applied "the
principle universally accepted by international tribunals", viz.: ARGUMENT 01: SIKPETEKKAWLINSON . 101
"The parties to a case ni~ist refrain froni any ineasure capable of excr-
cising a prcjudicial efict in regard to thc esecution of the decision to be
giveri and, in genernl, not allow ariy stcp of any kind to be~takeii which
iiiight aggravatc or extend thc dispute."
This broad languagc would appcar to extend the Coiirt's rolc beyond the
strict tcriiisof Articlc 41 which rcfcrs siniply to preserving "thc respective
rights of cithcr party".
Nevertlielcss it is a logical conseqiicnce that, if rights are to bc prcserved,
action should not be takeii pe~irleltr~ lite which is capable of excrcising a
prejudicial effect in regard to thc cxecution of any decision of the Court on
thc iiierits which has for its objcct the protection of thosc rights. As 10
allowing steps to be takcn whicli iiiight aggravatc or extend the dispute, it is
rcasoiiablc to assLiiiie that any s~icli aggravation or extension might havc
prejudicial cfïect in regard to the esccution of thc Co~irt's dccision on tlic
tiierits.
Iii tliis context it is signifiant tliat Article 41 provides tliat notice of thc
nicasurcs suggestcd by the Co~irt is to bc givcn forthwitli to the Sccurity
Council as well as to the parties theniselvcs, and in Article 38 of ils Statute
thc Court is giveii the function of dcciding "iii accordance with international
law such disputes as arc s~ibniittcci to it".
The Court, which was specifically creatcd by thc Charter as one of a teaiii
of agencies of the Unitcd Nations liaving as their purpose tlie settlement of
international disp~ites, cannot bc cspected to discharge tliis wide rcspon-
sibility to thc international coiiini~iiiityil'it has not the right to cxpect of the
parties, and thc power to cnsure, tliat during the procccdings they shall
abstain from actions capable of prejudicing tlic execution of the Court's
cvciitual dccisions and of aggravatiiig or extending thc disputc subiiiittcd 10
thc Court.
In tlie case conceriiiiig Sorirh-E(~.~rriG.~riee~tlrr~iPl.C.I.J.,Ser.ic~.sIB, No.
48) in 1932,the Periiiancnt Coiirt clearly took tlic vicw that thc prevcntion of
"regrettable events" \vas niainly tlic responsibility of the Partics thcniselves,
especially since they had both bouiid theiiiselvcs to avoid incidents in de-
clarations "oflicially proclainicd bcfore the Coiirt" which the Court foiind
to be "eiilinenily rcassuring" (pp. 286-287).
Another renson givcn by the Court for declining to graiit rclicf was thal
"even adoptiiiç the broader iiitcrpretation of Article 41 of the Statiite, therc
would sccni to bc no rcnson to fear that the incidents contcniplated by thc
Norwcçian reqiicst will nctually occ~ir" (p. 285).
Indccd, in a straightforward territorial dispcite, as in tliat casc, the Court
would not noriiially bc cxpected to inake an Order for interin1 iiieasurcs,
becaiisc itwoiild clccirly be the duty of the party against wlioiii'thc Court's
dccision on sovcrcignty \vent to vacate tlie tcrritory, and the othcr pcirty's
title co~ild not be affectcd by any actioii Iiis opponent iiiight take in thc
nieantiiiie.
If, liowever, one of thc parties werc to coiiinicnce opcratioiis on thc
tcrritory in dispiiie capablc of rciidering the tcrritory of lessvalue to tlic othcr
party, should iheit other party cventually be awarded the tcrritory by the
Co~irt, thcn itis to bc expcctcd tliat the Coiirt wo~ild order intcrim relief.
As thc Pcriiianent Court piit itin tlie Sorltlt-Errsrci~ri.~~~itlu~ctase:
". .. the incidents whicli thc Norwcgian Govcriiiiicnt aiiiis at preventing
cnnnot iii any event, or to :iny degrce, anéctthe existence or value of the
sovereign riglits clciinicd by Norway over thc tcrritory in qiiestion, wcre these rights to bc duly recognizcd by the Court in its futurc judgmcnt on
the mcrits of thc disputc" (p. 285).
The present case before the Coiirt, although it concerns an extension of
fishcrics jurisdiction around Iceland, is not in thc normal sense a territorial
dispiitc. lccland is not clainiing an cxtension of hcr tcrritory. She clainis only
an cxtension of her fisheries jurisdiction over what is admittcd to bc a portion
of the high seas. Neither is the United Kingdom clainiing any territory.
The point at issue is sirnply whether the United Kingdoin's continued
enjoynient of frccdom of fishing in this area of the high seas, which it expects
to be confirmed by a decision of thc Court on the merits of its claim, will be
prejiidiced by action taken during tlic proceedings against ils fishing fleet by
Iceland. If, as 1shall show latcr, such prejudice is likely to occur-and indeed
is in fact already beginning to occur-then 1submit that the Court inust in
law grant interiin relief.
Thc United Kingdoni fully realizes that in any Order the Court iiiay make,
the Court has the responsibility of protecting the rights of lceland just as
iiiiich as the rights of the Unitcd Kingdom. This is so cven if lceland does not
appear before the Court to givc the Court the benefit of her views as to how
tliese rights iiiight best be protcctcd in the mcantiiiie. Thus it niay well be
that Iceland, as a iiation cspecially intercstcd in thc yield of the fishcries of the
area in qiicstion, is entitlcd to some interiiii protection in case thc Court
should find in füvour of her claini to extended fisheries jurisdiction.
For this reason thc United Kiiigdoii-i has subiiiitted a suggestion, which L
sliall explain Iatcr, as to how Iccland's rights might be protected. Lcmphasize
that this is trot a territorial disputc where, for thc rcasons 1 have given,
intcriiii nieasurcs may sometimcs not bc üppropriatc. It is a disputc about the
vülidity of a purported extension of fishcrics jurisdiction wherc intcrim mea-
surcs to protect the rights, ccrtainly of one of thc Parties, and pcrhaps of both
of thciii, are not only appropriate but csscntial.
The finaltcst, which a reqiiest for the indication of interin] mcasurcs must
satisfy bcfore theCourt can ordcr interinl protection, is that the Court should
have jurisdiction to make such an Order, and here it is necessary to iiiake a
careful distinction.
In any contcntious case tlic Court, bcfore giving a decision on tlic mcrits,
niust satisfy itsclf that it has jurisdiction under Article 36 of its Statute, or,
as thc case iilay be, cinder Articlc 37 in addition. Thc Court's jurisdiction 10
indicatc intcriiii iiieasiires cinder Article 41 is rclatcd Io, but not wholly
dcpcndent upoii, its jurisdiction iinder Article 36. The position lias bccn
clearly stated by Sir Hcrsch Lautcrpacht when he said, in the liirerhntidelcasc:
"ln dccidiiig whether it iscompetent to assui~iejurisdiction with regard
to a rcqiicst niade under Article 41 of the Statute the Court need not
satisfy itsclf-either proprio t>iotccor in response to a Preliiiiinary Ob-
jection-thnt itis coiiipetent with regard to the merits of the dispute. Thc
Coiirt has stated on a nuiiiber of occasions that an Order indicating, or
refiising to indicatc, interin1 nieasures ofprotection is indepcndent of thc
aflirniatioii of its j~irisdiction on the mcrits aiid that it docs not prcjudge
tlic question of iiierits. . Any contrary rule would not be in accordance
wifh the nature of the rcquest for iiieasures of interini protection and thc
factor of iirgency iiilicrcnt in the procedure under Article 41 of the Sta-
tiite." (I.C.J. Reports 1957, p. 118.)
The capacity of the Court to order interim incasures, if necessary in advance ARGUMENT 01: SIR PETER KAWLINSON 103
of confirmation of itsj~irisdiction to deal with the nierits, was closely examined
by my predeccssor as Attorney-Gcneral, Sir Frank Soskicc, in the spccch he
made beforc tliis Court ovcr 20 years ago on 30 J~inc 1951 and which is
rcported in the Atiglo-Iratriori Oil Comparry case. I refer the Court to that
spccch, especially pages 407-418, although 1 do not propose to take up the
tiiiie of the Court by reading the wholc of the passages now. L would, how-
cvcr, rcfer to three particular passages, which 1think niay be of assistance to
read at this stage. In the first the then Attorney-Gcncral is reported as saying
as follows:
"It will bc convenient, Mr. President and Mernbcrs of the Court, if,
in the first instancc,1 recall the jurispr~idencc and pronounceinents of the
Court on the subjcct. On 8th January 1927, the Presidcnt of the Court
issucd an Order for intcrini nieasurcs of protection in the case betwecn
Bclgiuni and China arising out of thc denunciation of the Treaty of 1865
between those two countries. At the time whcn the order was madc,
China had not cxprcssly acceptcd thcjiirisdiction of the Coiirt. Iiiiiiaking
the order, the President indicated: 'proi~isioircrll~p,erir/irrg llre fjtrrrl
rlc~ci~iotorf rlre Cortrt irr the crrsesttht?i/'yetlie Applicatioir of No\~einher
25fl1, 1926-II)! ii~lriclirlecisioi, /lie Coirrt ivill eitlrc~rrleclrtreitself'to lrrr~le
rrojrtri.srlictio~ior giiv j~trl~ttrrtlrcmerils .. .', the various riicasures of
protection. Iiithe second Ordcr in the saiiic case, the Court once niore a
put on rccord the îact that the Order for Interirn Mcasures of Protection
was madc indcpendently of the question whether thc Court Iiad juris-
diction to deal with the case on the iiierits. It rccalled 'that the present
suit has been brouglit by unilatcral application and tliat, as tlic tiiiie
allowcci for the filing of the Countcr-Case has not cxpired, the rcspon-
dent liastrotlrarlcrrropportrrilityof irrrlica~iiigivlretlierlie ncccptstlie Corrrt's
jrriiscliclioir irr 1sase'."
"Anotlier casc in which an order relating to intcrim iiieasures of
protection was made before the Court acccpted jurisdiction on tlic nierits
was tliat madc on I lth May 1933 in the case conccrning the Aclr?iinis-
rratiotr oJ'tlrr Pritrce i.otP/e.ss(P.C.I.J., Sc~.ic-.s lB, No. 54, at p. 153).
The last reciial prcccding thc opcrativc part of the Order \vas as follows:
'Wliereas, furtherii~ore, tlic prescnt Ordcr iiiiist in no way prcjudgc
either the qucstion of the Court's jurisdiction to adjudicate upon the
Geriiiaii Government's Application Institutin!: Procccdings of May
IStli, 1932, or that of ttic adniissibility of that Application.' " (I.C.J.
Plc~rrrlirr~~r,al Aigrtrneirts, Uocrtr?ierrts,p. 407, 408.)
Sir Frank Soskicc then referred iiIiis argunient to passages in tlic work by
I'rofcssor H~idsoii and in the Polis11Agrrrricrri Rcforrri orlrl tlic Geirricrtry
~Mirroiit)casc. Hc citcd a niiiiiber of dccisions of thc Mixed Arbitral Tribunals,
which lie subiiiiticd ill~istrated and afiriiied the sanie principlcs. And he
contin~ied in Iiis arçLiiiient:
"The Couri will find a statcnient of the effcct of the dccision of the
Mixed Arbitral Tribunals in this matter iii tlic followiiig passage in
Dr. Diinibaiild's book oii iiitcrini nieasures of protcction:
'Anotlicr important principlc cniphasized in the jurispriidence of the
Mixed Arbitral Tribunals is that in ordcr to grant intcrini meastires it is not ncccssary to dccidc whcther thetribunal has jcirisdiction in the
main procccdings on its nicrits, but it suffices that prinio facie there is a
possibility of a decision in favour of the plaintiff and the tribunal's
lack of jurisdiction is not iiianifcst.' (Ititerim Measltres of Protecriori
1932, p. 140.)
In the saine work, Dr. Diinibauld states the principle as being of
general application. H.esays:
!Equally fundamental is the rule that the principal proceedings
(Hcrript.sr~clrr)are in no wise affected by interiiii nicasures. Thc action
in chief and the action with a view to security are altogether indepen-
dent of each other. In rendering its final judgiiient the Court is not
boiind by its interlocurory decisions, and Inay disregard it entirely.
Consequently jurisdictioii to grant protection petidente lire is not
dcpcndent iipon jurisdictioii in thc principal action. Froni this it
follows that interim ineasures iiiay bc grantcd bcforc a plea to the
jurisdiction is disposed of; aiid that one court niay provide a remedy
petidetire lite in aid of an action of which anothercourt has cognizance.'
(At p. 186.)
The author of anothcr book on the same subject, published in 1932,
expresscs the saine view even inorc clearly. I rcfcr to the monograph, in
Geriiian. of Dr. Niemeyer, entitled Provisiorial Orclers of the Worlcl
Cortrt. Their Object crtrdLimits. He rejects eniphatically the view that a
decision on jurisdiction is necessary before the Court can iiiake an
order for interini protcction. He says:
'This would necessitate an exhaustive examination of the casc; it
' would iiiake necessary an exainination of the evidcncc. In bricf, the
exact sitiiation would arise which iiiust be avoidcd: a protracted
- argument which would waste tiiiie, tvhich would dcprive the pro-
visioiial incastircs both of thcir truc charactcr and of their urgency,
and which would prcjudgc the cvciitual outcome of the final decision
which is in no way connected with the object of provisional iiieasures.
A provisional order çivcn in that way would achieve only a negligible
dcgree of its intcnded cffectiveness. It is, therefore, clear that, for
reasons of practical convenience, there is no rooni for an examination
of the question of jurisdiction on the merits in conncction with a
request for intcrim protcction.' (P. 70.)
In the Iatcst edition, piiblished in 1943,of his treatise on the Periiianent
Coiirt of lntcriiational Justice, Professor Hudson suiiiniarizes tlic lcgal
position as follows:
'Nor isjurisdiction to indicate provisional iiieasurcs dcpcndent upon
a previous dctcriniiiation of the Court's jurisdiction to dcal with the
case on the nierits.'" (At p. 425.)
1 niay add . .. that thcre is, so Par as I aiii aware, no writcr who has
on this qucstion cxpressed a view differing froiii that which 1 am now
subinitting to tlic Court.
Qiiitc apart froiii the opinions expressed by writers on the subject,
there are, I siibinit, Mr. President the strongest practical reasons to
support the view which 1 have prescnted IO thc Court. To conccdc to a
party the right to ask, before aiiy iiitcrinl ordcr can be iiiadc, for a
dccision on the question of jurisdiction-a inatter whicli, as the cx- ARGU~IENT OF SIRPETER RAWLINSON 105
perience of the Court has shown, iiiay necessitate weeks, if not inonths,
of oral and written pleadings-would altogether frustrate the object of
the request for interiin nieasiircs of protcction. Undoubtcdly, it is
conceivable that a party inay abusethe right to ask for interim measures
by asking for them in a case in which it is apparent that the Court has
no jurisdiction on the merits. If that were to happen, the Court would
find means to discourage any such abuse of its process. It may wish to
satisfy itself that there is a prirnafacie case for the exercise of its juris-
diction. There is no such difficulty in the present case."
In my subniission thcre is ccrtainly no dificulty in this present case before
the Court this inorning. Finally, rnay 1refer to a short passage in the ürguinent
advanced to the Court in 1951 in which Sir Frank Soskice referred to the case
of the Wectricity Cornpariyof Sofia airrlB111goria.He set o~itthe Order which
\vas inade by thc Court in tlic following ternis and commented as follows:
" 'Thc Court,
indicates as an interiiii meastire tliat, pending the final judgment of the
Court in the suit subiiiitted by the Belgian Application on Jaiiuary 26111,
1938,the State of Bulgaria shouldcnsurc tliat nostep of any kind is taken
capable of prejudicing the rights clainicd by the Belgian Governnicnt or
of aggravating or extcnding thc disputc submitted to the Court.' (P. 199.)
1subniit [said Sir Frank] that this is the most completestatement of the
principlcs on which thc Court should act in granting interini relief. 1
submit furthcr that tlie principlcs so ciiunciated precisely cover the
circuiiistances which the Court is now considering."
So much then, Mr. President, for the argument in 1951, in the Arrglo-
Iraniar~Oil Cor?ipaiiycasc. In that case, despite the fact that the lniperial
Govcrnnicnt of Iran had appointcd no agent, but had confined itself to
sending a tclcçram stating that'that Governnient hoped that the Court would
declarc that tlic case was not within ils jurisdiction, the Court ruled that it
could not bc acccptcd n priori, that thc claiiii based on the United Kingdom's
coniplaint of an alleged violation of international law fell completely outside
the scope of international jurisdiction and that this consideratioii sufficed
"Io einpower the Court to entertain the request for interiin mcasures of
proieciion" (p. 93).
Altliough in the subniission of Her Majesty's Goieriiincnt thc law was
clcür beforc 1951, 1 subinit that there is no doubt whatsoever that it has been
dcfiiiitivcly clarified by.thc Ordcr iiiadc by this Court on 5 July 1951 (I.C.J.
Reports 1951, p. 89).
Mr. President and Members of the Court, there are three views on the
capacity of the Court theii to order interiin iiicasurcs bcforc confirming its
jurisdiction to deal \vitIl thc iiicrits. Thc first, and possibly thc widcst. vicw is
that of thc Court itsclf, as cxpresscd in tlie Arrglo-lrrrriiOril Cortiparrycase.
And according to this view itappearsto be sufiicient for theappellant toshow
that a priori his claiiii docs not fall "outsidc the scope of international juris-
diction".
This statcnient was of course niade in the contcxt of that particular case,
but it clcarly shows that, in considering a rcqucst for the indication ofintcrim
nieasurcs of protection, the Court docs iiot rcqiiire tlie applicant to do iiiorc
than show that prima facie there are reasonable grounds for believiiig that
the Court possess jurisdiction to deal with the inerits. This I submit iiiiist be
right in principle.1repeat that passage froiii Sir Hersch La~iterpacht: "Any contrary rule would not be in accordance with the naturc of the
request for iiieasures of interim protection and the factor of urgcncy
inherent in the procedure under Article 41 of the Statute."
Sccondly, there is the view of Sir Hcrscli Lautcrpaclit wherc, discussing the
principlcs ~inderlying thc suggestion in a morc gcncral way tliaii thc Coiirt
undcrstandably was able to do so in tlic contcxt of a particular case, he said
that interim measlires ought not to be ordered "in casesin \\?hichthere is no
reasonable possibility, prima facic asccrtained by the Court, of jurisdic-
tion on the merits"; and that the correct principle is that:
". .. the Court may properly act cinder the ternis of Article 41 provided
that there is in existence an instrument such as a Declaration of Accep-
tance of the Optional Clause, emanating froiii the Parties to the dispute,
which prima facie confers jurisdiction .cipon the Court and which in-
corporates no reservations obviously excluding its jurisdiction" (Itrtcr-
lr«ticlccase, I.C.J. K(.liort.s 1957, pp. 118-119).
Thirdly, there is the view expressed by Jiidges Winiarski and Badawi in
their disseiiting opinion in the Atrglo-lratticrri Oil Cot~ipurrycas(I.C.J. Reports
1951, pp. 96-98), where they said:
". . .the Court ought not to indicatc intcrini nieasures of protection
~inlcssits conipetence, in the evciit of this being cliallciiged, appears to the
Cocirt to be nevertheless reasonably probable".
In the subiiiission of H'er Majcsty's Governnient, that view is wrong iii
principle. For that view would nccessarily involve the Court in prejiidging
the q~iestion of its jurisdiction without having heard proper arguinent, and it
could have a serious prejudicial efïect on the applicant's position if he were
denied interini relief on the ground that the Court, on a purely summary view,
had coiiie to the coiiclusion that ilwoiild probably hold later on that it tvas
not entitled to exercisejurisdiction.
But iiotwithstaiidingg aiid, cvcn so, in thc subiiiissiori of Hcr Majcsty's
Govcrnmcnt, whiclicvcr of thcsc three tcsts is applicd, altliough 1repcat, the
third view is in iiiy subiiiission clcarly wrong, it mattcrs not in the prcscnt
case. For, in my suhmission, the Court hasjurisdiction IO deal with the nierits
oii ail tlirec tests. First. the United Kingdom's clairn is certainly based on a
cornplaint of a violation of iiiternational law and it certairily "carinot be
accepted rrpriori that a claiiii bascd on such a complaiiit Falls completely
outside the scope of internationaljurisdiction". Sccond, itcannot be argued,
to adapt Sir H'ersch Lauterpacht's phrase, that "there is no reasonable possi-
bility prittrri f(rcic ascertainable by the Court, of jurisdiction .on the nierits".
Third, and finally, even if tlie Coiirt wcrc to follow tlic stricter view of Judges
Winiarski and Biidawi, thcrc is cvcry rcason wliy it should appear to the
Co~irt, upon "a consideration, entircly suniniary in character", to borrow
their phrase, of the grouiid upoii wliicli tlic Govcrnnicnt of the United
Kingdoiii alleges that the Court hasj~irisdiction tliat "ils conipctence, in the
eveiit of this being challcngcd, appcars . .. to bc iicvcrthclcss reasoiiably
probable".
As 1 liavc said, Mr. Prcsideiit aiid Mcinbers of the Court, H'cr Majcsty's
Govcriiiiicnt fouilds thc jurisdiction of tlic Coiirt on thc pciiciltiiiiatc para-
grapli of the excliaiige of Notes of I I March 1961 between the Governinent
of tlie United Kingdom of Great Britain and Northern lrcland and the GO-
vernnient of Icelnnd. That Note, after refcrring to the intention of the Ice- ARGU~IENT OF SIR PETER RAWLINSON 107
landic Governnicnt Io continue to work for the iniplenientation of the Althing
Resoliition of 5 May 1959 regarding the extension of fishcries jiirisdiction
around Iceland, providcs, and 1repeat again, "in case of a disputc in relation
to such extensioii, the matter shall, at the rcquest of either Party, be referrcd
to the International Court of J~isticc". Tliis exchange of Notes contains no
tcrmination clausc, and it is therefore covcrcd by what Lord McNair has
rcferred to in Tl~eLow of Trroties, 1961,as the "general presuniption agaiiist
tlic existence of any right of unilateral terininatioii of a treaty".
I should no\+),Mr. Prcsident, refer briefly to tlic lcttcr sent to the Rcb?'istrar
of thc Court of 29 May 1972 by the Minister for Forcigii Affairs of Iceland.
In that lcttcr thc Foreign Minister gavc a nuniber of reasons why his Govern-
iiient were iinwillinç to recognize the jiirisdiction of the Co~irt in this casc or
to appoint an agent, as they would norinally havc bccn expected to do uiider
Articlc 35 (3) of the Rulcs of Court.
It is the underst:indiiig of Hcr Majesty's Govcrniiient that this lettcr docs
not constitute a prcliniinary objection witliin thc mcaning of Article 62 (1)
of thc Rules. It does iiot thcrcfore have the cffcct of suspending thc proceed-
.iiigs on the merits. Accordingly Her Majcsty's Governnient have the right to
expect that after the Coiirt has given its ruling al thc conclusion of the prcsciit
hearings, it will givc directions for the filing of the Meniorial and Countcr-
Meniorial of tlic Partics, as rcclciired by Articles 37 and 41 (2')of the Rules.
Her Majesty's Govcrnnient believc tliat it is not only unnecessary, but
woiild also be wrong in principle, for tlic Court Io examine at this stage the
arguments on tlie qiicstion of jurisdiction proffcred by the lcelandic Forcign
Miiiister in his letter of 29 May. Such an cxaniinalion would bc cntircly
iiicoiiipatiblewith the iirgciicy of the present procccdings.
Thc Co~irt will have read that tclcgraiii froiii the Foreign Miiiistcr of lceland
filed with tlic Registrar of the Coiirt on 29 Jiily, j~ist three days bcfore this
hearing. If this tclegrani is directed to suggest that the Keqiiest for the In-
dication of Intcrini Measures is iiiadniissible, then 1emphasize that the rights
for \vhicli tlic United Kingdoin has rcquesteci protection under Article 41 of
the Statiitc arc the rights of the Unitcd Kingdoni, that is to say its rights as a
State uiider public international law to ensure that its fishirig vessels be
pcriiiittcd to fish on the high seasiii the neiglibourhood of Iccland outside the
12-mile lirnil os açrccd cipon in the Exchange of Notcs of II March 1961.
If, on tlic other hand, the telcgraiii is intcnded to suggest that tlic claitii as
foriiiiilated in the United Kingdoiii Applicatioii of 14 April 1972 is inad-
missible, then, first, tlic Uiiitcd Kiiigdoni is claiiiiing its right undcr public
international lebvas a Statc and second, even if it wcrc found to be proceeding
or1bclialf of tlie private intercst of ils natioiials, this it is entitled to do, iiiider
public international law, and third, questions of adriiissibility, like those of
jurisdiction should bc dealt with at a later stage of the procecdinçs.
H'er Majesty's Govcrniiicnt. in any event, contciid that thc Icelandic
arg~iiiiciits arc ciitircly \+~itIio~itfo~indation aiid do not affcct in aiiy way the
right of the Court to cxercise jurisdictioii in tliis casc. Ncveitlieless, if it is the
wish of the Court to accclcrate the norinal proccdurc and to take up the
qiiestioii of jurisdictioiibefore the Parties havc filcd plcadinçs on tlie nierits,
we are at the disposal of thc Court and stand ready to do so at a convenicnt
lime.
I siibniit tlicrefore tliat thcre are no consideratioiis relatinç to the juris-
diction of the Court wliich should inhibit the Court froiii indicatiiig ititcriin
nicasurcs in this case if, iii the opinion of the Court, circuriistances req~iire
tliat sucli measures bc taken. It is abundantly clcar that "the indication of such iiicasiires iiino way prejiidges the qiiestion of the jiirisdiction of the
Coiirt to deal with the iiierits of the case and leaves unanècted the right of the
Respondciit to subinit argiiinents against such jurisdiction" (Arrglo-lroriiur~
Oil Cot~ipurry case, I.C.J. Reports 1951, p. 93).
Tliere is thus no reason to fear that the rights of lceland woiild in any way
be prcjudiced if the Court were to exercise its jurisdiction under Articlc 41 of
its Statutc and so wcrc to iiidicate iiitcriiii iiicasurcs as soiight by Her Ma-
jcsty's Goveriiiiicnt.
. 1 iiow tiirn to the efïect which the proposed regulations, if iiiiplen~ented,
woiild have on the United Kingdoni fishing industry and on the public.
The rcgiilations proiiiiilgated by Iceland to take effect on 1 Septciiiber,
arc set oiitiiiAiinex A to the reqiiest.
Articlc 1 starts 11sfollows: "The fishing liinits off lceland shall be drawii 50
nautical niilcs outsidc basclines drawii bctwecii the follo\viiig points."
Thc regulations tlicii spccify soine 31 points by nariic and by reference to
geographical co-ordinatcs. These baseliiies appear to diîïer in certain respccts
froin thosc wliicli wcrc agrecd iipon betwcen the United Kingdoni and lccland
in the 1961 Exchange of Notes as the basis for the 12-iiiile liniit. This is a
matter to which we rnay have to revert at a later stage in thesc proceedings
but it does not affect our present case.
The article continues: "Liniits shall also bc drawn round the following
points 50 nautical niiles scaward."
Two olhhore points arc then dcfined, onc to thc north and one to the
east of Iceland.
Article 2 is quitc cateçorical: "Within the fishery limits al1fisliing activities
by foreign vessels shall be prohibited in accordance with thc provisions of
Law No. 33 of 19June 1922,concerning Fishing inside the Fishcry Liiiiits."
Articles 3, 4 aiid 5 concern the regiilation of Icelandic vessels withiii the
50-mile limit.
Articlc 6 providcs that violation of the provisions of these reg~ilations is to
be siibject to certain peiialtics iiicluding fines of up to 100,000 lcelandic
Kroiiur.
Articlc 7 providcs that:
"Thcse rcgulatioiis are proiniilgated in accordance with Law No. 44
of 5 April 1948,concerning thc Scicntific Conservation of the Continental
Shelf Fisheries, cfr. Law No. 81 of 8 Dcccniber 1952. Wheii these regu-
lattons beconie ekctive, Regulation 3 of I 1 March 1961,concerning the
Fishery Liniits off lceland shall ccasc to be cfïective."
Tliose, MF. President and Meiiibcrs of thc Court, are the regulations iniposing
the 12-iiiile limit which fornied thc siibjcct of the 1961 agrceiiient betwecn
Icclniid and the United Kingdom.
Law No. 44 of 5 April 1948, which is rcferred to in the Article 7 which 1
have just read to thc Court, is set oiit in enclosure 2 to Annex H of the Appli-
cation initiating thesc procccdings, at page 45. and Article 2 of that Law
'provides that "the rcgiilations proinulgatcd under Articlc 1 of thc prcsent
1aw"-which now by virtue of Article 7 includc thcse reçiilations-"shall be
enforccd only to the extent conipatible witli agrcciiietits with other countries
to wliich Iccland is or niriy beconic a party". ARGUMENT OF SIR PETER RAWLINSON 109
Since, howcver, Iceland has made it clear that she proposes to repudiate
the 1961agreement, United Kingdoni vesselshave nothing to hope from that
provision.
Article 8 of the regulations provides that the regulations bccome effective
on 1 September 1972.
In the request, Her Majesty's Government has recited in some detail the.
econoniic results which would flow from such a drastic exclusion froni these
very important fishing grounds. Hcr Majesty's Government has shown the
impossibility of redeploying any considerable portion of the fishing fleet in
other areas. We have referred to the unemployment and the permanent loss
of vessels which would follow, and to the financial and economic conse-
quences. 1 hope that thcre has been sct out therein sufficient detail for the
purposes of this application.
In essenceOur case is very simple.
If a nation such as the United Kingdoiii, with a large and important fishing
industry, is abruptly deprived of fishing grounds which her vcssels have
fishcd for niany years and which, over a long period of time, have provided
nearly one-half of that nation's distant water catch and approxiinately one-
fifth of her total catch of al1 fish, deinersal and pelagic, in al1 waters, that
fishing industry must inevitably suffer grave dislocation, which will have
disastrous econoinic efïects on that industry and on other industries depen-
dent upon it.
Apart from the hardship to the industry, there would arise widespread
hardship to the population as a whole. Fish is an important part of the diet
of the population of the United Kingdom, and in particular as a source of
protein. If the proposed regulations are enforced, the popiilation of the
United Kingdom would be deprivcd at once of a source of fish supplying,
on the 1971figure, which is shown in coluinn 9 of Annex C, something over
£22 million worth of fish to thc United Kingdom market. This is the landed
price. The retail value is of course much higher.
This would undoubtcdly lead to an imniediate shortage and, we fear, a
dramatic rise in the pricc. The supply of fresh wet fish through the fishii-ionger
and processedfish such as fish fingers would beseriously affccted. Housewives
would find fish scarce in the shops. Tf it were obtainable, the price could well
soar bcyond the budget of the housewife for whose family fish is a traditional,
important and regular item of food. Morcover niuch of the fish from the
Iceland area and other distant water fisheries lias for a long time been taken
by the traditional fish and chip shops which are a popular feature of British
towns and espccially industrial towns, and at least one of which is usually
round in most neighbourhoods, whcre fish is sold fried and hot, to be taken
away and eaten of the preiiiises. A large proportion of thc population would
at once feel the consequences of the proposed Icelandic regulations. As Her
Majesty's Government has pointed out in the request there is no available
alternative source of supply.
Let thcre then be no doubt that thc icelandic regulations, if impleniented,
would exclude fisherinen of other nations, including thosc of the United
Kingdoni, froiii al1 but a minute part of the fishing grounds. This is,1hope,
clearly shown by the map which is before the Court at Annex BI 1 to the
request for interim measures and, if L inay, Mr. President, 1 invite the Court
to st~idythat map, so that 1 niight shortly explain sonic of the features of the
map.Io00
metr
tOllS III
62 63 64 65 66 67 68 69 70 71 112 FISHERIES'JURISDICTION
It is described thereon as the Iceland fishing grounds related to statistical
rectangles. The innermost line is the Coast line of Iceland. The next outer
lines are the baselines which were agreed between the United Kingdom and
Iceland in 1961for the purpose of drawing the agreed 12-milelimit of fisheries
.jurisdiction. The broken line shows the If-mile liniit. Now there are of
course many valuable fishing grounds within that limit, but they are not
shown on the map because we arenot concerned with them in this case.
The thin continuous black line outside that represents the 50-mile liinit
now claimed by Iceland. The fishing grounds outside the 12-mile limit are
indicated by the shaded areas on the map.
The heavy broken line is the 400-metre isobath. That is a line similar to a
contour line joining al1points at which the sea reaches a depth of 400 metres,
a figure which is sometiines taken arbitrarily as marking the limit of the
Continental Shelf around Iceland.
Now, deniersal fish are caught at varying depths by difïerent methods of
fishing, for example, by drift nets and purse seines near the surface, and by
long lines and trawls on the bottom. The use of trawl nets which, with negli-
gible exceptions, is the only method used by United Kingdom fishermen in
the lceland area, is restricted to grounds where the bottom is relatively free
from obstructions which would impede or daniage the trawl. While the prin-
cipal trawling grounds froin which the catch has been taken are indicated by
the shaded areas on the map before the Court, their limits cannot be precisely
defined, and a certain amount of fishing takes place from time to tiine in
other places which are not fished with suficient regularity to be regarded as
established fishing grounds.
For the purposes of the International Council for the Exploration of the
Sea, the whole area is divided into the statistical squares indicated on that
map, and after each voyage trawlers are required to state the squares from'
which their catch is taken. The figures for 1971 have been used to form an
estimate of the proportion of the catch taken outside the 50-mile limit. When
thc limit linc-asyou will see it does on occasion-crosses a square, a notional
apportionnient of the catch inside and oiitside the liii-iithas been made, ac-
cording to the proportion of the area of the square which lies outside or
inside the limit line. This shows that only 4 per cent. of the total United
Kingdoin catch in the Iceland area was taken outside the proposed 50-mile
limit.
This method of assessnient can only be applied to fresher trawlers, bccause
freezers are not required to attribute their catches to particular squares within
the area, but there is no reason to supposethat their pattern of fishing difiers
significantly froni that of the fresher trawlers, and in any event the freezer
trawlers accounted for only 6 per cent. of the United Kingdoin catch in thc
lceland area.
These fishing grounds have, as 1 have said, been a very iinportant source
of fish for the United Kingdoin over very inany years. Not only has this
source been important both in absolute ternis and in ternis of the percentage
of the total United Kingdoni catch it has supplied, but the catch obtained has '
remained reniarkably consistent from year to year.
In Annex G to the request the court will see figures derived from the B~illerin
statistique despêchesmaririmes which go back to 1950,that is to Sayabout the
period when conditionsreturned to noriiial aftcr theSecond World War.This
table shows year by year the total deniersal catch in the lceland area and how
much of that catch was taken by Icelandic and Unitcd Kingdoni vessels
respectively. ARGUMENT OF SIR PETER RAWLINSON 113
Whatever fears the lcelandic Government may express about the future,
there is no doubt that the picture which emerges from these figures for 21
years up to and including 1971 is of remarkable stability. This is illustrated
by the graph of those figures (see pp. 110-1Il), copies of which have been
put before the Court and, if 1 may, 1 would once again invite the Court to
look at thedocument and to look in particular at that graph.
It is simply a graphical representation of Annex G which is among the
Court's papers, but this is just a simple graph which 1 think will illustrate,
1hope clearly, to the Court, the point that 1 am submitting. That document
-the graph-is headed "Total catch of fish in the Icelandic area by al1
countries .. ."and so on.
The top line in the graph shows the total catch. Now that in itself is a
remarkably consistent record. The lowest figureis 616,000 tons in 1950, rising
to the highest figurerecorded so far of 881,000 tons in 1954. That is the total
catch. Since then, the total catch has varied very little from year to year and
has certainly shown no tendency to decline in recent years. On the contrary,
thecatches for 1970and .197 1are the highest since 1958.
Now the second line down from the top shows thecatch taken by lcelandic
vessels. Their sharehas consistently been larger than that of anyother nation,
and in 12out of the last 21 years, including each of the last 4 years, has been
larger than that of al1the other nations put together.
The general trend of the Icelandic catch is upward, and the drop in 1971
from the high peak of 1970 is no greater than the fluctuation in the past
between one year and another. There is certainly nothing in these figures
which suggests any tendency to a decline in the lcelandic catch.
Well below the lcelandic graph are two intertwining lines. They represent
the catches of the United Kingdom and al1 other nations respectively. The
United Kingdom catch has consistently been higher than that of any other
nation except lceland. By and large, United Kingdoni vessels have usually
taken about half as much as those of lceland, and about the same amount
as the vessels of al1 other nations put together. The straight line, in heavy
black ink, represents 185,000 tons which is the average United Kingdoni catch
forthe years 1960to 1969which 1shall refer to later when1 refer to the interim
measures which 1 invite the Court to indicate.
In my submission, the figures in the Anncx and as represcnted on this graph
show conclusively: first, that if the United Kingdom fishing vessels were to
be excluded as is proposcd by Iccland, the effect on the United Kingdom
fishingindustry would be immediate and disastrous; second,that if thestatus
quo were allowed to continuc for the period which must elapse before the
Court gives its finaldecision on thc merits, the Icelandic fishing industry will
not be affected.
So, in terms used by the English courts in such niatters, the "balance of
convenience" is heavily in favour of maintaining the present position pendetire
lite. ln terms of the Statute of this Court, tha; is the way in which "the rights
of the parties" will best be "preserved". ln terms of the French text of Article
41 of the Statute, such measures would be in the truest sense "mesures
conscrvatoires".
The first of the interini measurcs which we ask the Court, then, to indicate
is in subparagraph (O) of paragraph 20 of the request, and it is, if I rnay read
it, as follows, "that, pending the final judgment of the Court" in this suit,
"(a) the Government of lceland should not seek to enforce the regu-
lations referred to in paragraph 4 above against,. or otherwise interfere or threaten to interfere with, vessels registered in the United Kingdom
fishing outside the 12-milelimit agrced on by thc parties in the Exchange
of Notes between the Government of the United Kingdoni and the
Government of Iceland dated II March 196,l (as set out in Annex A
to thesaid Application)".
This deals with the direct interference with the vessels fishing or threats of
such interference. But it is not only on the high scas that nicasures inay be
taken to enforce a fishing ban. The Government of Iceland niiglit, for example,
attempt to arrest a United Kingdom fishing vessel which was perfectly
lawfully sailing. within the 12-mile limit on the grounds not that it had been
fishing within that limit but that it had been fishing on the high seas outside
that liniit contrary to their regulations. Or the lcelandic Governinent niight
take mcasures against a fishing vessel which, whether in distress or in the
ordinary course of business, put in at an Icelandi~:port, on tlie groundsthat it
had in the past infringed the regulations. Furthermorc, the possibility of
other methods of interfering with the freedom of fishing such as measures
against sistcr ships or the attenlptcd organization of boycotts cannot be ruled
out.
Accordingly, the mcasures set out in subparagraph (a) which 1 have just
read are not enough in theniselves to ineet ihe requirements of the case. In
niy submission they should bc supplementcd by those set out in subparagraph
(6) namely :
"(6) the Government of lceland should not take or threaten to take
in their territory (including their ports and territorial waters) or inside
the said 12-mile limit or clsewhere nieasures of any kind against any
vessels registercd in the United Kingdoin, or against pcrsons connected
with such vesscls, being mcasiires which have as their purpose or eflèct
the iinpairnient of the freedoin of such vesscls to fish outsidc the said
12-ii~ileliniit."
Subparagraph (c), thc third of the subparagraphs of paraçraph 20,
requires further cxplanation.
The Govcrnrnent of lceland have said that they fcar that the United
Kingdoin fishing fleet intends to increase its cffort in the I.celaiid area in thc
near future to the detrimcnt of the lcelandic catch and of fish stocks. If this
is their fear, it was ofoiirsc perfectly opcn to thein to coiiie to the Court and
ask for intcriin measures which would prcvcnt this happening. Thcy have not
chosen to do so.
Hcr Majesty's Govcrninent docs not acccpt that lceland has any valid
grounds for fcaring a significant increase in tlie elTort by United Kingdom
fishing vessels. But as it appears that thcsc fears may exist, however ill-
founded, Her Majesty's Governmcnt are willing that thcy should bc allayed
pending the decision of tliis casc. Accordingly, H'cr Majesty's Govcrnineiit
have includcd in their request for the indication of inteiiiii iiieasurcs, in sub-
paragraph (c), a request that tlie Court shoiild indicate that the Unitcd
Kingdom should itsclf place ccrtain restrictions oii its fishing vessels while
thcse procccdings arc pending.
The full tcxt of the subparagraph runs as follows:
"(c) in coiiformity with sub-paraçraph (a) above, vcsscls registeicd in
the United Kingdom should be free, Save iiiso far as riiay bc provided
for by arrangements between the Govcrniiient of the United Kinçdom
and the Govcrnnient of lceland siich as are rcferred to in paragraph 21 ARGUMENT OF SIR PETER RAWLINSON 115
(b) of thc said Application, to fish as heretofore in al1 parts of the high
seas outside the said 12-iiiilc liniit, but the Government of the United
Kingdom should ensure that such vessels do not take more than 185,000
inetric tons of fish in any one year froin the sea area of lceland, that is to
Say, the area defined by the.International Council for the Exploration
of the Sca as area Va and so iliarked on the map attached hereto at
Annex B2".
This figure of 185,000 tons is the average United Kingdoni annual catch
in the Lcelandarea over the decade 1960to 1969and it was shown on the heavy
black line on thegraph which the Court recently examined. lt is less than the
United Kingdoni catch last year which was 207,700 tons.
Moreover, while the United Kingdom invites the Court, if it considers it
appropriate, to place United Kingdom vessels under this limitation pei~denre
lite,Her Majesty's Government does not propose any correspondinç restric-
tion on Lcelandic vessels. The ineasures requcsted in subparagraphs (cl) and
(e) are of a more general naturc. Thcy are based on the general measures
indicated by the Court in the Aiîglo-lrniriai~Oil Co.case and are, in Our sub-
inission, nieasures which itis desirablc that the Court should indicate. In
subn~itting these proposais, Her Majesty's Government have sought to adapt
the form used by the Court in tbe Anglo-Irrrnirrr~il Co. case to the require-
nients of the present case.
To return now to the nieasures requested in subparagraph (b), it will be
notcd that Her Majesty's Govcrnnient does no1 claiin absolutely and without
qualification that United Kingdoiii vesscls should be free to fish as heretofore
in the water outside the 12-mile limit. The claiin is that they should be free
to doso "save in so far as may be provided for by arrangements between the
Government of the United Kingdoni and the Governinent of Lceland such as
are referred to in paragraph 21 (b) of the said Application", which is the
Application instituting proceedings in this suit.
Now paragraph 21 (b) of this Application asks the Court when it comes to
deal with the case on the merits, to declare that :
". .. questions concerning the conservation of fish stocks in the waters
around lceland are not susceptible in international law to regulation by
thc unilateral extension by lceland of itsexclusive fisheries jurisdiction to
fifty nautical inilcs froin the aforesaid baselines but are matters which
inay be regulated, as between lceland and thc Unitcd Kingdoni, by
arrangements agrced between those two countries, whether or not
together with other interested countries and whether in the form of
arrangenients reached in accordance with the North-East Atlantic
Fisherics Convention of 24Janiiary, 1959,or in theform of arrangements
forcollaboration in accordance with the Kesolution on Special Situations
relating to Coastal Fisheries of 26 Aprii, 1958, or otherise in the form
of arrangeiiients agreed between them that give cffect to thecontinuing
rights and interests of both of them in the fisheries of the waters in
question."
1advise the Court that Her Majesty's Governnient attaches the greatest
importance to this part of the case. 1 do not assert that no control of fishing
in the lccland area is, or evcr will be, necessary. Far frorn it.
Her Majesty's Governinent's case is that any control which is required can
be effectively carried o~itby international agreement by the machinery set upunder the North-EastAtlantic Fisheries Convention, and that if it should be
necessary to adopt measures restricting the total catch in the area, as may
well happen, the undoubtedlystrong claim of lceland to preferential treatment
can be adequately met. The text of that North-East Atlantic Fisheries Con-
vention is set out in full at Annex F in the Application. The preanible is as
follows:
"The States Parties to this Convention
Desiring to ensure the conservation of the fish stocks and the rational
exploitation of the fisheries of the North-East Atlantic Ocean and adja-
cent waters, which are of common concern to thcni;
Have agreed as follows:".
The area covered by the Convention is sliown on the niap al Annex B2 to
Our request and includes Iceland. It is the uiishaded portion of the ocean on
the east side of the niap which is divided into areas indicated by ronian
figures. The lceland area isarea Va.
The 14contracting States include Iceland, the Ilnited Kingdom, the Federal
Republic of Germanyand al1the States whose vesselsfish to any extent in the
Icelai~d area. Under that Convention, a permanent coniniission has been set
up with ils headquarters in London. This Conimission is advised on scientific
questions of fish conservation by the Iiiternational Council for the Ex-
ploration of the Sea(ICES).
Acting on this scientificadvice, the Commission has recommended to the
contracting States, and the contracting States have accepred and imposed on
their fishing vessels, various conservation measures of the type described in
Article 7 (1) of the Convention, naniely measures, such as the regulation of
the size of mesh of fishing nets or for the niiniiniiisize of fish Io be landed,
falling short of regiilating, however, the aiiiount of catch. Thesc measures
apply, aniong others, to the!celaiid area.
Even inore important, the Coiiiiiiission, which consists of representatives
of al1 the contracting States, has proposed to the contracting States under
Article 7 (2) that the Coiiiiiiission should beempowered to reconlnicnd niea-
sures which include limitation of catch and of fishing effort, aiid this proposal
has now been formally approved by al1the contracting Statesexcept Belgiiiin,
Iceland and Poland whose fornial approval is expected shortly.
Accordingly, when these formalitics are conipleted, the Coniiiiission will
be able to reconiinend nicasures of catch limitation in any part of the Nortli-
East Atlantic, including the Tccland area, if it is satisfied on scientific advice
that such are necessary.
There is, therefore, certainly no necessity on conservation grouiids for
Iceland to take this drastic and unilateral step. Indeed. if iniplenicrited, the
action threatened would preclude any possibility of resolving the diferences
between lceland and those other nations who fish in the I'celand area of the
high seas,through the niachinery of the Convention.
Nor is there any reason why the special needsof lcelandshould not receive
recognition. Paragraph 21 (6) of the Application refers to the Kesolution on
Special Situations Relating to Coastal Fisheries adopted at Geneva on 26
April 1958, the fiiltext of which is set out at Annex E to the Application. This
resolution was accepted by Her Majesty's Governinent when it was adopted
at Geneva, and its implementation remains the policy of Her Majesty's
Government. ARGUMENT OF SIR PETERRAWLINSON
It recommends that:
". ..where, for the purpose of conservation, it beconies necessary to
liinit the total catch of a stock or stocks of fish in an area of the high seas
adjacent to the territorial sea of a coastal State, any other States fishing
in that area should collaborate with the coastal Statc to secure just
treatinent of such situation, by establishing agreed ineasures which shall
recognise any prefereiitial requireinents of the coastal State resulting
froni its dependence upon the fishery concerned while having regard to
the intercsts of the other States".
The United Kingdom recogiiizes that Iceland is a coastal State which is
dcpendent upon this fishery, and that lceland should receive preferential
trcatinent if it should become necessaryto limit the total catch in the lceland
area.
In thc north-west Atlantic, a very similar Convention is in force, to which
both the United Kingdoiii and lceland are contracting States, setting up a
siinilar Coinmission, known as the International Cominission for the North-
West Atlantic Fisheries. The parties to this Convention, of whom there are
15, have actually agreed ineasures of catch limitation covering the princi-
pal speciesin four out of the five of the sub-areas into which the Convention
area is divided. This agreenicnt was reached in Washington in June of this
year.
In agreeing those measures the parties to that Convention have, in con-
formity with the spirit of the Geneva resolution, given preferential treatment
to the coastal States.
. Accordingly, Mr. President and Members of the Court, the issue in this
case is not whether the fish stocks of the lceland area should receive any
protection which may be necessary. Hcr Majesty's Government have agreed
that they should. Nor is the issue whether the protective measures should, if
necessary, include a limitation on catch. Hcr Majesty's Government agrees
that they should. Nor is it that Lceland'sneedfor preferential treatment in allo-
cation of catch quotas should be recognized. Her Majesty's Government
agrees that it should.
The issue in this case is whether lceland should be entitled by unilateral
decision to take al1 the fish for lierself, notwithstandingthe disastrous effect
this would have on those who, up to now, have shared the fishery with hei.
At the proper tiinc 1shall argue that lceland has no right in international
law to do any such thing. At this stage rny contention is sirnply that lceland
should not take such drastic and unilateral action while her right to do so is
the subject of proceedings before this Court.
The contracted negotiations to which 1 have rcferred, with Her Majesty's
Government meeting point by point the lcelandic objections but without
achieving agreement, are evidence of Her Majesty's Government's deterniined
and urgent dcsire to avoid litigation. Her Majesty's Governnient sought first
an agrecd scttlement of the whole issue; when that failed, Her Majesty's
Government sought fair and just conditions pendingthe decision of the true
arbiter of this disagreement, naniely this Court.
Whatever measures this Court may indicate, Her Majesty's Government
will certainly CO-operatein their iinplementation.
T should like, Mr. President, to thank the Court for the expedition with
which, in accordance with the spirit and letter of the Rules, this application
has been heard by the Court.
1 much regret that reasons of State compel my immediate return to Londonafter the conclusion of these submissions, but my counsel will reniain to
afford the Court any additional information which it may seek.
1end, if 1 inay, by eiiiphasizing once again that this application ariscs out
of an issue which is a matter of the utmost gravity for the United Kingdom
for whoni 1appear in this Court.
1remind the Court of thesolemn agreement made bctween the two Govern-
nients on 1 IMarch 1961. 1remind the Court of the unilateral and precipitate
act of the lcelandic Governmcnt. 1 remind the Court of the length of time
which must pass before a final decision can be given by the Court, and of the
grave consequenccs which must follow from this act by the lccland Govern-
ment upon thc fishcriiicn, the people, and the economy of the Unitcd King-
dom.
In niy subinission there could be no stronger case to fall within Article 41
of the Statutc. 1 repeat, Mr. President, that this is a matter of the gravest
urgency to the Unitcd Kingdom and 1 respectfully but carnestly requcst the
Court to indicate interiin ineasures in the form presented in paragraph 20
of the request.
The PRESIDENT:On behalf of the Court, 1wish to thank the Agent and
counsel of the United Kinçdoni for their assistance. The oral proceedings on
the request for the indication of interim measures of protection in this case
are now completed, but I would ask the Agent of the United Kingdom to be
at the disposal of thc Court to furnish any further information 1the Court
may require. Subjcct to that reservation 1 declare the hearing closed. The
decision of the Court on the request for the indication of interini measures of
protection will be given in due course in the form of an Order.
Tlie Corrrt rosent12.10 p.m.
' II,pp. 391-392. READING OF THE ORDERS
SECOND PUBLIC SITTING (17 VI1172, 10a.m.)
Presenf: [See sitting of 1 VI1172.1
READING OF THE ORDERS
The PRESIDENT: The Court meets today to announce its decisions on
two requests for the indication of interim measures of protection, under
Article 41 of the Statute and Article 61 of the Rules of Court, made by the
United Kingdoin of Great Britain and Northern Ireland 1and by the Federal
Republic of Gcrniany 2, in the proceedings instituted by those two States
against the Republic of lceland concerning the fisheriesjurisdiction of Iceland.
These are two separate cases pending before the Court, but the requests for
interim measures of protection were made within two days of each other, the
oral proceedings on the two requests were held on two successive days, and it
has been considered convenient to announce the two decisions at a single
sitting of the Court.
1shall first read the Order of the Court in the proceedings instituted by the
United Kingdom of Great Britain and Northern Ireland against the Republic
of Tceland.
[The President reads from paragraph 1 to the end of the Order 3.1
In accordance with the usual practice of the Court, 1 cal1 upon the
Registrar to read the French text of the operative clause of the Order.
[The Registrar reads the operative clause in French 4.1
The Vice-President, Judges Forster and Jiménez de Aréchaga append a
joint declaration to the Order of the Court; Judge Padilla Nervo appends a
dissenting opinioii to the Order of the Court.
1 now turn to the proceedings instituted by the Federal Republic of
Germany against the Republic of Tceland, and shall now read the Court's
Order in that casc.
[The President reads from paragraph 1 to the end of the Order 5.1
I cal1upon the Registrar to rcad the French text of the operative clause of
the Order.
[The Registrar reads the operative clause in French 6.1
The Vice-President, Judges Forster and Jiménez de Aréchaga append a
joint declaration to the Order of the Court; Judge Padilla Nervo appends a
dissenting opinion to the Order of the Court.
See pp. 71-78,supra.
2 II,pp. 23-31.
3 I.C.J. Reports 1972, pp. 13-18.
4 Ibid., pp. 17-18.SeealsoII,p. 61, and I.C.J. Reports 1973,p.302.
I.C.J. Reporrs 1972, pp. 31-37.
6 Ibid., pp. 36-37See also U, p. 61,and also I.C.J. Reports 1973p. 313.120 FlSHERlESJURISDICTION
In view of the urgency of a decision on a request for the indication of in-
terirn rneasures of protection, the two Orders of today have been read from
a rnirneographed text. The usual printed copies will be available in about ten
days' tirne.
(Signed) ZAFRULLA KHAN,
President.
(Signed) S. AQUARONE,
Registrar.
Oral arguments on Request for the Indication of Interim Measures of protection, Minutes of the public sittings held at the Peace Palace, The Hague, on 1 and 17 August 1972, President Sir Muhammad Zafrulla Khan presiding