ORAL ARGUMENTS ON JURISDICTION OF
THE COURT
MINUTES OF THE PUBLIC SLTTINGS
Ireldor rhePeacePalace, TheHagi~e,
015 Ja>~naoiid2 Fehrirt973,
PresidentSir M~iltarnrnadZafir,lla Khan
presiding THIRD PUBLIC SITTING (5 1 73, 10 a.m.)
Present: President Sir Muhammad Zafrulla KHAN;Vice-President AMMOUN;
Judges Sir Gerald FITZMAURICE P,ADILLANERVO,FORSTERG , ROS,
BENGZON,PETRÉN,LACHS,ONYEAMAD , ILLARD,IGNACIO-PINTO,
Mo~ozov, JIMÉNEZ DE ARÉCHAGAR ;egistrar AQUARONE.
Also present:
Forthe Covernment ofthe United Kingdom:
MI. H. Steel, Legal Counsellor, Foreign and Commonwealth Office, as
Agent:
Rt. Hon. Sir Peter Rawlinson, Q.C., M.P., Attorney-General,
Dr. D. W. Bowett, President of Queens' College, Cambridge, Member of
the English Bar,
Professor D. H. N. Johnson, Professor of International and Air Law in the
University of London, Member of the English Bar,
Mr. 1.L. Simpson, Member of the English Bar,
MI. G. Slynn, Member of the English Bar,
MI. P. G. Langdon-Davies, Member of the English Bar, as Coiinsel:
MI. M. G. de Winton, Assistant Solicitor, Law Officers'Department,
MI. P. Pooley, Assistant Secretary, Ministof Agriculture, Fisheries and
Food,
MI. G. W. P. Hart, Second Secretary, Foreign and Commonwealth Office,
as Advisers. OPENING OF THE ORAL PROCEEDINGS
The PRESIDENT: The Court meets today to examine the question of its
jurisdiction to deal with a dispute between the United Kingdoni of Great
Britain and Northern lreland and the Republic of Iceland, concerning the
extension by the Government of Iceland of its fisheries jurisdiction. In these
oroceedines. i.stituted bv.Aoo..cation 1 filed on 14 April 1972, the United
king~oiii ioundi ihe jur8sdiitioii uf Ihc C,iiirt on ,2;1.~lc' 36. rI~r.igr;irIll 1,
oi the C<iuri'sStstdte, ;inJ <>n.in c\ih~n~c of \diê, h~i\rcen Ille Ci.)ierniiicnt
ufthz Cniicu Kin~tcini inJ the Ciotcrrinicnr ,iiI~el~iidJdtc,l II hl.irch 1901
The Applicant asks the Court to declare that Iceland's claim to entend its
exclusive fisheriesjurisdiction ta a zone of 50 nautical miles around lceland
is without foundation in international law.
By an Order2 dated 18 August 1972, the Court decided that the first
pleadings should be addressed to the question of the jurisdiction of the Court
to entertain thedispute. By the same Order, the Court fixed 13October 1972as
the lime-limit for the Meniorial of the United Kiiigdom and 8 Decembcr 1972
as the tinie-limit for the Counter-Memorial of the Government of Iceland.
The Memorial 1 of the United Kingdom was duly filed within the time-
limit fixed therefor. No Counter-Memorial has been filed by the Government
of Iceland; the written proceedings being thus closed, the case is ready for
hearing on the issue of jurisdiction. In a telegram 4 received in the Rcgistry
on 5December 1972,the Minister for Foreign Affairs of lcelandreiterated that
no basis existed for theCourt to exercisejuiisdiction in the case, and informed
the Court that the position of the Government of lceland was unchanged.
I ntitr !lie prcieiicc in Csiirt ,>fthc .-\ceni .inJ C.>iiii,cl of ille Cii~i'crniiicnl
oi ilie Iiiiii:,I KingJsiii: ilie Ca11 lia, n<>ihccn ncitilied of tlie appointnieni
ofdns ;irciii for the Ci~~\crnmcni tiiIccI.~iiJ.anJ L iiotc ih.11n.1rcprc~cnt:ili\c
ofthat Government is present in Court.
The Governments of Ecuador, the Federal Repuhlic of Germany and
Senex-l have asked that the nleadincs and annexed documents in this case
should bc ni.& .ii.xil.ihle 10 thciii IIa;i,irJ.tnzc \riih ,\rii;lc 14.p;~r:tgr.i~)h2,
of ihe Kiiles ofCourt. The I';iriies h.iviiig indic3ieJ ilixi tlic) hci.1n,i objeLii~in.
it was decided to accede to these requests.
In accordance with practice, the Court decided, with the consent of the
Parties, that the pleadings and annexed documents so far filed in the case
should be made accessible to the public also, pursuant to Article 44, para-
graph 3, of the 1946 Rules of Court, with efïect from the opening of the pre-
sent oral proceedings. The Court further decided that a nuiliber of cornmu-
nications 5 addressed to the Court by.the Government of Lceland should also
be made accessible to the public at this time. The Parties have indicated that
they have no objection to this course.
1 declare the oral proceedings on the preliminary question of the Court's
jurisdiction open.
See pp. 3-10,supra.
2 I.C.J. Reports 1972, p. 181
3 See pp. 123-152, supro.
4 11. o. 404~
5 II;bp.374, 388, 389, 399,404 and 420. ARGUMENT OF SIR PETER RAWLlNSON
ARGUMENT OF SIR PETER RAWLINSON
COUNSEL FOR THE GOVERNMENT OF THE UNITED KINGDOM
Mr. STEEL: May it please the Court, with the Court's permission I will
ask the Attorney-General, Sir Peter Rawlinson, to present the oral sub-
missions on behalf of the United Kingdom.
Sir Peter RAWLINSON: MI. President and Judga of the International
Court, it was on 1 August 1972 1that 1had the honour to address the Court
and on that occasion Ïspoke in support of the United Kingdom's request for
the indication of interim measures of protection 2.
On 17 August 1972 this Court made an Order indicating the provisional
measures which should be taken by the Parties pending the Court's final
decision in the proceedings and, on 18 August, the Court made a further
Order, directing that the first pleadings should be addressed ta the question
of the iurisdiction of the Court to entertain the disvute. As the Court will
apprecLate, it is in response to that Order that Her'~ajesty's Government,
having delivered their Memorial on jurisdiction as ordered by the Court,
appear today to support the contention that this Court has amplejurisdiction
to hear and determine the dispute which has been brought before it. But,
before 1 turn to the question of jurisdiction, the Court will wish to be in-
formed about the events which have taken place since the indication of pro-
visional measures in August.
Those provisional measures indicated by the' Court made three require-
ments of the United Kingdom. The first requirement, which was under
paragraph (1) (a), was that the United Kingdom, like the Republic of Iceland,
should ensure that no action of any kind should be taken which might
aggravate or extend the dispute submitted to the Court. Her Majesty's
Government have fully complied with this requirement. Moreover, they have
done so notwithrtanding serious difficulties caused by the Government of
Iceland. The second requirement, under paragraph (1) (b) of the Order of
17 August, was that the United Kingdom, like the Republic of Iceland,
should ensure that no action shoiild be taken which might prejudice the
rights of the other party in respect of the carrying out of whatever decision
on the merits the Court may render. Her Majesty's Government have been
careful to take no such action. The third requirement, under paragraph (1) (e)
of the Order of 17August. was that the United Kingdom should ensure that
vessels registered i~ ~~ ~ ~-~ ~~~inedo-~sh~uld~n-~~~ke an annual catch of
more than 170,000 metric tons of fish from the sea area of Iceland as defined
by the International Council for the Ex~loration of the Sea as Area Va.
In Dursuance of that reauirement bv ihe Co~ ~ ~Her Maiestv's Governinent
~, . .
look iiaiutc,r). puAer, un i9Scpicnibcr. The) raie int<,clTectoii 30 Octoher,
and the full chteni of tht~ic poweri iidc,cribeJ iiiilic lctre3 i~f19 I)c<eiiibcr
1972 froi~i ihc .&gentai the L'iiited Kingdoni IO ihc Regi.irar oi ihis Couri.
The po\icrs taken by Hcr Jlüjcsiy'i Giivcrnmcnt enwre thai the iota1 crich
for the ).car berirtnine I Scpiemher 1972 will nJi chceed the 170,000 iiieiric
1 See p. 94,supro.
2 Sec pp. 71-78,supra.
3 II,p. 405.tons indicated by the Court. Those statutory powers will, if necessary, be
exercised: tha~ ~ ~ ~ ~ill not be exceeded. 1 have the landing figures of fish
from thelceland area taken between 1 September and 14 ~ecember-figures
are keot weekls-and they can be supplied to this Court if the Court so
--
But the Government of Iceland have ignored the provisional measures
indicated bv the Court and. indeed, they have deliherately disobeyed them.
paragaph (1) (c) of the Order of 17 August indicated that, pending the
final decision of theCourt,the Republic of lceland should refrain from taking
an" measures to enforce their regulations of 14 July 1972 against vessels
registered in the United ~in~dom and engaged in fishing activily in the
waters around Iceland outside the 12-milefishing zone. 1regret to informthe
Court that the Government of lceland have embarked upon a policy of
harassing British vessels fishing in those waters. They have claimed that in
doing so they are seeking to enforce their regularions of 14July 1972.
While this harassment has not. in fact, seriously interfered with the fishing,
it i\ ~.onirnr> to g~id scnni~n>liip: II isd3ngcr<>ub: iti\ in 11:igr;intJi\rr.g;ird
oi ihc iii<lic;itionoi the C'i~urt.Ret\\r.cn 5 Scpteiiihr.r .inJ 21 Si>\.eiiibcr 1972
eiahr Rriti.ih i.~,~elshaJ Ihrir lra\ili :iitby I:~,l:inJi: giinhi>.ii>. rllcrcu;,s
then a pause in those activities. But, in recent days, th& have unfortunately
been resumed.
Now, thecuttingof trawls is a particularly dangerous form of harassment.
The trawl wire, when il is in the water, is under great tension. When it is cut,
it inay whip back On to the deck of the trawler and cause deaths or serious
injuries arnong the crew. Lt is only by good fortune that, so far, there has
been no loss of life or serious injury on a British trawler.
An attempt to cut a trawl also involves disregard of the rules of navigation
and good seamanship. Indeed, a collision did occur on 18 October 1972
between an lcelandic gunboat and a British trawler. There was another
collision only last week, on 28 December; and it is again only fortune that
prevented loss of life or serious persona1 injury.
Not only is this behaviour contrary to the express terms of paragraph (1)
(c) of the Court's Order of 17 August 1972, it also constitutes a breach of
paragraph (1) (a), for ilwould be hard to conceive anything more calculated
to aggravate the dispute referred to the Court.
These, Mr. President, are not, today, the appropriate proceedings in which
to comment in detail on the disregard by the Government of lceland of
the Court's Order. and 1 do not orooose at this staee to sav more than that
Her Majesty's Government, while 'for their part continukg to discharge
their own obligations to the Court. must fulls reserve their right to take al1
appropriate measures to protect the safety and the legitimaie interests of
their nationals.
Although the Government of lceland have indulged in this campaign of
harassment which involves daneer to life and orooertv. .nd ..thoueh lceland
is not willing to appear before tie Court, this has not prevented ~er-~ajesty's
Government from making efforts to reach an interim agreement. The interim
agreement which Her ~aiestv's Government have soueht to reach is an
agreement which, withouf $ejudicing the rights of eifher Party, would,
however, create peaceful conditions in the seas around Iceland, pending the
decision of the court on the merits.
Thus, since the date of the Court's Order there have been further nego-
tiations with theGovernment of Iceland. From 5 to 7 October talks were held
in Reykjavik between officiais.On 27 and 28 November the Minister of State ARGUMENT OF SIR PETER RAWLlNSON 245
in the Foreian and Comnionwealth Office. Ladv Tweedsmuir. visited Revk-
javik for tal<s at ministerial level.
The object of these negotiations on the part of Her Majesty's Government
was to try to obtain an interim agreement which would beconsistent with
the Court's Order and which would implement it in practice.The agreement
sought would have been interim in the sensethat it would have covered the
oeriod until there was a substantive settlement or conclusion of the disoute-
as, for example, by judgrnent of this Court. Her Majesty's Government were
also prepared to consider any mcthod of catch limitation which might be
acceotable Io both Parties and which would be comoatible with the Order of
the court.
In these negotiations. Her Majesty's Government were prepared ta accept
that one-third of the waters around lceland should beclosed to British vessels
at any one time. Her Majesty's Government were prepdred ta accept seasonal
restrictions on trawling, on a non-discriminatory basis, in two areds where
scientific advice showed a special need to avoid the nursery grounds of young
fish; and to recognizc that there might be a need for special arrangements for
areas containing fixed gear.
The British fishing industry were prepared to give an assurance on the
future composition. or tonnage. of the fishing fleet. However. the lcelandic
Government proposed that half the area should be closed to British fishing
at any one time. They wanted furiher extensive areas to be reserved through-
out the year for the smaller lcelandic vessels.They pressedfor the exclusion
of al1 British freezer trawlers as well as trawlers over 180feet or 750-800tons
in size. This would have excluded the most modern of the British fishing
vessels.These vesselsare modern, not only in the sense that they have an
improved catching systern but also in that they are safer and provide better
working conditions for their crews.
These restrictions proposed by the Government of Iceland woiild have cut
the British catch bv at least 60 to 70 ver cent.. and for this reason they were
inc\,it:tbly un~cce~iiible as tbüsi t'ir iin inrerim sctilcnicnr.
Ni>neihclc~s.in ;iiiirihcr aticnlpiIO reach a just agreement. Hcr hl3jcsiy's
Government siiggested a different approach. They proposed a 10 per cent.
reduction in the actual fishing effort-that is to say the number of days
fishing-by British vesselsin the disputed waters. This proposal was intended
to meet the twin requirements of the Icelandic Government, namely: first,
for conservation; and, secondly, for coastal State preference; while yet
preserving the livelihood of those British fishermen who have traditionally
fished in the area.
The lcelandic Government have not accepted this proposal. They have
oflered no alternative.
In early December. the British Foreian and Commonwealth Secretary had
further informa1 discussions with the lciandic Foreign Minister, and we hope
thst. as a result, negotiations will be resumed-they have certainly not been
broken off.
Meanwhile. however, 1 must advise the Court that, despite every effort
on the part of Her Majesty's Government, Our negotiations have not, so far,
beensuccessful.
1 turn now, Mr. President. after that report, to the question before the
Court today, the question of the Court's jurisdiction to entertain the sub-
stantive dispute.
As required by Article 32 of the Rules of Court, the Government of the
United Kingdom specified, in their Application instituting proceedings of ARGUMENT OF SIR PETER RAWLtNSON 247
Io appear before the Court to present these, or any other, arguments, Her
Majesty's Government accept a duty to the Court fully to examine the Court's
jurisdiction and to present Her Majesty's Government's submissions con-
cerning the right and. indeeil, the obligation in law. of this Court to exercise
jurisdiction in this case.
1will, therefore, in due course, examine each of the lcelandic arguments in
turn, and 1 will seek to show that each of them is without foundation or
substance.
Mr. President. in the Order of 18 Aueust 1972. the Court decided that the
l'ïrties ih<iiild .i&rerrthcir lirst pleadin& the quî5tiun of the jurisd!ctii>n
oi the Court IO cntcrtditi the ilispure". In the iuhmiision uf Hcr M;ijesty's
Government, that Order, expressid in the terms of that Order, has important
iniplications for the present proceedings. For the decision immediately
followed the Court's finding that "it is necesszry [and 1emphasize the word
'necessarv'l to resolve first of al1 the auestion of the Court's iurisdiction".
Thus, thé &es on which the Court has invited submissions at the present
stage are confined ta those issueswhich might have been raised in a prelim-
inab> .biection to the Court's iurisdictio< The Court is not. al oresent.
concerned with objections Io theUnited Kingdom's claim which do not bea;
on that question of jurisdiction. In particular, the Court is. at present, not
concerned with iss~~swhich mieht have beenraised bv wav o. an .biection to
thc ïdniisjibility of thc clïim. Ïjay this. .\Ir. llrc<idcnt. becdusethc~tclcgr~ni
frcini the Ir.cl<indicGoi~crnmcnt <if28 Juls 1972(which 1s oneuf tliccoiiiniiirii-
cations referred to in the Order made by the court on 18 August) contains a
passage which might be taken to be an objection to the admissibility of the
claim. For in that telegram the Foreign Minister of lceland stated that "the
Aoolication of 14Aoril 1972refers to the leeal oosition of the two Statesand
.. -.
not to the economic position of certain private enterprises or other interests
in one of those States". On I August 1 argued that this was intended to be
either an objection to the admissibility octhe request for the indication of
interim medsures or. perhaps, an objection to the admissibility of the claim
itself, and 1 submitted that, on either view, it was misconceived and ill-
founded.
If the passage I have quoted from the telegram of the lcelandic Foreign
Minister was indeed directed at the request for the indication of interim
niedsures. as 1suggest it probably was, then the Court has already disposed
of it. If, on the other hand, it was intended to relate to the substance of the
claim in this cdsc (iilthough the context does not so suggest), Her Majesty's
Government inaintain that it is eauallv ill-founded. Her Maiest.'s.Govern-
ment are ready, if required, to make full submissions ta the Court on that
matter at the proper time. But, whatever the passagewas intended to convey,
it is clearly not an obiection which eoesto the Court's iurisdiction to entertain
the dispute. It is theréfore outside the scope of the preient proceedings. 1have
referred to itsolely because 1consider itmy duty to explain 10the Court the
attitude of Her MajestyXs Covernment to the various matters which are
raised in the communications from the Government of lceland that were
mentioned in the Order made by the Court on 18 August, even though 1
regard those points as strictly irrelevant-and esoeciallv irrelevant since the
Government of lceland have not even appeared'beforé the Court toclarify
their intentions.
Iturn now to the substance of the question ofjurisdiction.
It is settled law that "the Court's jurisdiction depends on the will of the
parties. The Court is always competent once the latter have accepted its jurisdiction. sincc therç is no dispute uhich States cntitled to appeïr bcfore
thc Court cannot rcfcr to II." This principle, which the Court will rccognire.
was statrd by the Pcrmïncnt Ci~urt of lnicrnïtii~nal Justice in the Minoritv
Schools case-in 1928 (Series A, No. 15, p. 22) and was repeated by the same
Court in the Chorzdw Factory (Merits) case in the same year (Series A,
No. 17,p. 37). The present Courthas asserted the same principle, for example,
in the Monetary GoId case, Preliminary Objections (I.C.J. Reports 1954,
p. 19at p. 32) where it stated:
"The Court cannot decide such a dispute without the consent of
Albania ... To adjudicate upon the international responsibility of
Alhania without her consent would run counter to a well-established
principle of international law embodied in the Court's Statute, namely,
that the Court can only exercise jurisdiction over a State with its con-
sent."
But this principle that the Court's jurisdiction depends upon consent must
be interpreted in the light of the Court's settled jurisprudence. This Court has
consistently held that once consent has been freely given, it cannot as freely
be withdrawn. Indeed, in one sense, that must he a truism since, if it were
otherwise, any State party who had originally given consent, but who sub-
sequently feared examination of a dispute by this Court, could withdraw
consent, and its objection to the jurisdiction would have to be upheld. No
Court, 1 would submit with great respect, let alone this Court, could or
would tolerate such conditional acceptance of its authority.
Even in a less literal sense, there have been rnany decisions of this Court
which demonstrate that a State whicb has clearly and definitively consented
to submit ta the Court's jurisdiction cannot subsequently retract that con-
sent, merely because it finds it no longer convenient. And it matters not
whether that purported retraction takes place shortly after the original
consent or many vears later. An examole of the aeneral orinci~le is the Corfu
Clz<in,~cslï\c, &<,.lrm>,Ju01,jectiut(I.c.J. ~,,~ortr 194i. p. SI.In that c&c,
after the Cniied Kin~dom had unilaterïll) ~nitiaicd pro~ecdings, the Ileputy
Foreign \linisler of Alhaniil urote IO the <:ouri on 2 Ji.lv1947 Io sïv thït
the ~Ïbanian Government were "prepared . ..to appear before the ~burt".
In the light of that letter, the Court refused ta uphold a subsequent pre-
liminary objection by the Albanian Government which was filed on 9 De-
cember 1947 and which sought ta argue that the case could not proceed on
the basis of the Court's compulsory jurisdiction.
The Court held that "the letter of 2 July [that is, the letter indicating that
the Albanian Government were prepared to appear before the Court1
constitutes a voluntary and indisputable acceptance of the Court's juris-
diction" (I.C.J. Reports 1948, p. 27) and it refused to allow that acceptance
to be withdrawn.
A further authority is the Nottebohm case, Preliminary Objection (I.C.J.
Reports 1953, p. 111). There. as the Court will recollect. Guatemala sought
to argue ihït the Court lacked jurisdiction in rcspc~t of p;oceedings instituied
by Licchtcnstcin on 17 Dcccmbcr 1951, rince the Guïtcmlilan Jeclïrlrt~on
accepiing the jurisdistion of the Court. made in 1947.cs~ired on 26 lanuary
1952. ~he court rejected this contention and it may séem obvious that it
should have done sa; but the attitude which this Court assumed with respect
to the Guatemalan contention is relevant. Guatemala relied not rnerely on
the formal position that her dcclaration hlid cipircd, but ïlso on the more
gcnerïl argunienr that hcr acceptlince of the jurisdiiiion of the Court \vas: ARGUMENT OF SIR PETER RAWLINSON 249
". . .not in an absolute and general form, since this would have implied
an indefinite submission to the detriment of ils sovereignty and not in
accordance with its interest, if by reason of unforeseen circumstances the
international situation changed". (1.C.J. Reports 1953,PP. 114~115.)
Guatemala further argued that the jurisdiction had been accepted by the
Government of Guatemala:
"... for a period sufficiently long to enable il, during this period, to
elucidate and settle legal disputes which had arisen or which might arise,
and sufficiently short to avoid the indefinite prolongation of a judgment
or the submission of future auestions the aenesis and circumstances of
which could not be foreseenand would affect future governments and
perhaps future generations of Guatemalans". (I.C.J. Reports 1953,
p. 115.)
Finally, Guatemala argued that it would be contrary to her own domestic
law for her to appear before the Court and contest the Liechtenstein claim.
The Guatemalan declaration was made under the second paragraph of
Article 36 of the Statute of the Court. In rejecting Guatemala's contention,
the Court a~~iied the sixth oa.aera-. of the same Article. which ~rovides
ihat '.ln thievcnt of 3 dlsp~tc iisIO uheiher the Court hüi jurisdiclion, the
marier shall be seitled b) decirion of the Ciiurt". The Court rcjec.redthe vtcu
th:ii the \\ide potier ai$,cnto iiiiinürarr3ph 6 of Article 36 of the Stütutc ip
confined to diSputesconcerning j;risdction in respect of the application of
paragraph 2 of Article 36. It went on to Say:
"Paragraph 6 of Article 36 merely adopted, in respect of the Court, a
rule consistenrlv acceoted bv eeneral international law in the matter of
international aibitration. since the Alabama case, it has been generally
recognised, followina the earlier orecedents, that. in the absence of any
agreement to the c&trary, an international tribunal has the right to
decide as to ils own jurisdiction and has the power to interpret for this
purpose the instruments which govern that jurisdiction". (I.C.J. Reports
1953, p. 119.)
What then, Mr. President, must be concluded from the Judgment in that
case? It is that il is quite fallacious to assume that a consent to thejurisdiction
can be withdrawn at will. on the assertion that a State's vital interests or
sovereignty override legal commitments under a compromissory clause.
Both the Corfil Channel case and the Noltebohm case involved situations
where the consent had been given only a relatively short time before it was
sought to be withdrawn or repudiated: but there have been other cases where
the Court has acce~ted iurisdiction on the basis of a consent eiven many
years before the insiitution of the proceedings and where, thoughthe efficacy
of that consent was called in question, the mere passage of time was never
acceuted as a valid obiection toits continuinr ooeration. ~hus in the Amborie-
los case (I.C.J. ~epo;~ 1952, p. 28) the coisént on which jurisdiction was
founded was given partly in 1926and partly as far back as 1886. Similarly in
the BarceIona Traction case, Preliminary Objections (I.C.J. Reports 1964,
p. 6), jurisdiction was found to exist in 1964 on the basis of consent given in
a treaty concluded in 1927: and again in the South WestAfricacase(1.C.J.
Reporcs 1962, p. 319)jurisdiction was held to cxist in 1962on the basis of a
mandate created in 1920.
Her Majesty's Government do not claim that compromissory clauses ARGUMENT OF SIR PETER RAWLINSON 251
As paragraph 6 of the United Kingdom Memorial recites, it is onlv in
reg2r.lii>ihc tir51i>fthi>seihrcc diicsiions ih.11thcrc ei,er ha, hccn. or appcdrs
na!\ IO he, a c.>nir.>verjyhet\$cen ihc P.irtici. 11ii i.ircly, and iddly. noi opcn
Io qLc\tian tli.tiherc i, 3 Ji~nuie hetueen thç I'driies. and ihdi this di,nutc
relates to the extension of fisheries jurisdiction around Iceland. That ihen
deals with the second and third of the questions. So 1 need, therefore, only
concern the Court with the first of the three questions. namely was the
Exchange of Notes of II March 1961 a treaty or convention in forCe hetween
the Parties on 14April 1972?
1 propose. and 1 ho~e that it will be for the convenience of the Court. first
to review the negotiaiions between the Parties leading to the ~xchange of
Notes in 1961 and, secondly, to examine the terms actiially used by the.Par-
ties, in order to demonstrate to the Court that the intention to confer juris-
diction was manifest both in the course of the negotiations and in the terms
of the agreement which they reached. Finally, 1 propose to deal with the
contentions put forward hv the Government of lceland in their ao~arent . .
eiiJcii,<~ur ti)\hou thst ihe ïgreenient cithcr neber \\As, or is rio1 noir. \,alid
and ih.11ihs) arc iiot haund tu 5ubm.r i.>ihe juridiciion oi ihis Court.
So ihen, hlr. Prc\iilcni. 1 iurn r,ittie tiecoii3rions bciriccn the I'drties in
1960 and 1961which led up to the ~xchangiof ~otes.
When the Second United Nations Conference on the Law of the Sea in
1960failed Io reach agreement on ageneral rule for fishing limits, negotiations
between the United Kingdom and Iceland began in October 1960. The Ice-
landic policy, revealed at an early stage in the negotiations, was essentially
twofold. First, to secure reconnition of a 12-mile fishery limit and, secondly.
to advance further the ~ce~andicclaim to the fishery resources of the con&
nental shelf. This was the policy reaffirmed by the Althing in its Resolution of
, ...,.. , , , .
Ir rrdi3 p011;y whiili iiicviirihly encai~iitercd legnl iIiili~ulticr. Fi,r [celand
was huunil id ùcr in n~c,?rJ.in~e ~ith inicrnniional II.\. Yei the i.vu Cicncva
Corifereiiccs of IV582nd 1960 h3J boih failcd tu aLic>pa i Il-niile iiihcry Iiiiiit
;and. in the Coiiiinent:il Shelf C~~nveniii~n.had erpre\\ly rye:tcJ ihc c.usisl
Sliie'\ cllin1 tu libhcry rciource, nhow the shcli.
Not surprisingly, therefore, it soon became apparent in the negotiations
that while Her Majesty's Government were prepared to concede to Iceland a
12-mile fishery limit, subject to a phasing-out arrangement, Her Majesty's
Government were not prepared to concede that international law permitted
anY exclusive Claim to fisheries outside the 12-mile limit. It was, therefore,
clear that some assurance would be needed that the Icelandic Government
would not seek to exclude British vessels from any of *e waters outside 12
miles, unless there was to be some radical change in the present general rule of
international Iaw.
The leader of the British delegation, Sir Patrick Reilly, made it clear very
early in the negotiations that an assurance on this point was essential. Sa,
from the very outset of the negotiations, a satisfactory assurance against a
further unilateral extension of limits beyond 12 miles was regarded by Her
Majesty's Government as fundaniental to the whole agreement. It was a sine
qrro non of Her Majesty's Government's consent to the agreement.
Iceland, for its part, wished to reserve the right ta extend its fisheriesjuris-
diction in the future "in conformity with international law". That was the
phrase used in the Icelandic Memorandum of 28 October 1960, as is set out
in the United Kingdom's Memorial in this case (para. 23).
Let it he rememhered that Iceland itself, in 1960, proposed that any sucbextension would be based either on agreement or on an arbitral award in
Cavour of such an extension. Thus, although Iceland was not prepared to
bind itself indefinitely 10 a 12-mile limit-and this much was certainly
implicit in the Althing Resolution of 1959-Iceland did concede in 1960that
any extension would have to be in conformity with international law and, if
disputed, subject to arbitration. lceland made no claim ta a purely unilateral
right of extension.
In the opinion of Her Majesty's Government at that lime, the lcelandic
formula ieferring to arbitration was unsatisfactory asan assurance. However,
given that Iceland made no claim ta a right of unilateral extension, the pro-
blem was simply that of finding a better formula which would allow Her
Majesty's Government ta test the validity of any future Icelandic claim under
international law.
Sa, first, Her Majesty's Government suggestedthat the validity of any rule
~ermitting an extension beyond 12 miles would have 10.be recoanized in
either a bilateral agreement or a general, multilateral agreement: To this
Iceland made the objection that allowance should be made for the possibility
of a..lv.ng-customarv international law. so that lceland could take advantaae
of a chûngc in iiistu&:ir) in1ernation:il Iarv. So. gradually ihroiigh 1960, the
P~riiec moved toiiards ûçrecincnt th;it ituoiilJ bc he3t iaihave thc Inter-
nationûl Court of Jusii:c dcteriiiinc iihcihcr ans neii r~le of Iûu h3d eniereed
which would permit lceland ta extend her fisheries jurisdiction beyond-12
miles. And on 4 Noveniber 1960the Parties agreed 10 this.
Thereupon the lcelandic representative, though still expressing a preference
for arbitration, stated that he could accept the formula proposed by Her
Majesty's Government. This formula contained the crucial phrase: "Any
dispute as 10 whether such a rule exists may be referred, at the request of
either Party, ta the lnternational Court of Justice" (Memorial. para. 25).
This, then, was the safeguard, the assurance, which made it possible for Her
Majesty's Government to agree ta the inclusion in the agreement of a refe-
rence to the Althine Resolution of 5 Mav 1959. Indeed. with this assurance
thcre uïj no rcûsoi to oppiise sih a rcicrcnce. for lcclind could cxtend its
juri\disii<in only in accordance with international Idtv and. in the evcnt of û
dispute, this Court was to be thejudge.
At the meeting on 2 December 1960,the lcelandic Foreign Minister stated
that "there did not seem to be any real dilïerences of opinion between the
two sides" (Memorial, para. 27). He was referring specifically ta what Sir
Patrick Reilly had described as "the key problem". and what 1 have described
as the sine qrranon of Her Majestv's Government's consent to the agreement,
n3inely the asurancc over an; fuiure e.\tcnsions bcyond IZ miles. -
Thc Icclandic Foreign Xlinirier altirnicd on 2 Deseinber 1960 ihai Iceland
uould base any future acl~onon international Iüw and that I~.clanduas ,vil-
ling to submit any dispute to the International Court. Apart from further
making it clear that reference ta the Court could be by unilateral application,
the Parties had thus arrived at a consensuson the substance of the assurance.
In the series of meetings which began in Paris on 17 December 1960, the
Foreign Minister of lceland gave a categorical assurance that:
".. .the lcelandic Government would be able to eive a firm assurance .
~ -
that they would not attempt-to extend beyond 12 miles calculaidfrom
present baselinesotherwise than with the agreement of the International
Court" (Memorial. para. 38).
All that remained then was for Her Majesty's Government ta insist that this ARGUMENT OF SIR PETER RAWLINSON 253
assurance should be embodied in an agreement, formally registered with the
United Nations Secretariat under Article 102 of the Charter, so as Io ensure
that Her Majesty's Government could invoke the agreement before this
Court. And that, too, was done. The terms were embodied in the Exchange of
Notes of II March 1961 and this was registered with the Secretariat by the
Government of Iceland.
That, then, Mr. President, is shortly the history of the negotiations in 1960
which led ta the agreement embodied in the Exchange of Notes of II March
1961.
Mav 1 then analyse that aa-eement which both Governments had solemnlv
made and solemnly registered? The nieaning of the compromissory clause is
ahundantly clear. The Parties were in coinplete agreement on Iwo basic
propositions.
First, after the three years' transitional period lceland might contemplate
a further extension of its fisheries jurisdiction, but would only make such an
extension in conformity with international Law. The statement in the Ex-
change of Notes, if 1 may remind the Court again, was:
"The lcelandic Government will continue to work for the iniplemen-
tation of the Althing Resolutipn of May 5, 1959,regarding the extension
of fisheries jurisdiction around lceland .. ." (Application, Annex A).
'fhli \ras ~le.tr ii<>iicsilixt 1~el.indmichi .~inienipl.iie3 f~riher ç\iciisi<in. f81r
the Alrhing Ressliiiio~i \poke of ,cektng re.'actiiiitin <if I:el.tn.l'j right ICIitie
eniire ;uniinenixl .hcli. 1his c,i.ilJ ginl\ he a .i4teiiieni 111i~iurc psl:c\. Thc
possibility of an extension lay only in.the future precisely because the two
Geneva Conferences of 1958and 1960had refused to recognize that any rule
existed which would have permitted lceland to extend herjurisdiction beyond
12 miles at that time. It was also commpn ground that any extension would
have Io bein conformity with international Iaw. This accords with statements
reoeatedlv made in the neeotiations bv . re.resentatives of both Parties and it
iii;ist bc c'orreci a3 iii;iti&or prin~ipic. far nc>Si.iie cm a,,ert ci~iirii<liciton
oier ;irç.ii of the high ex:cpI in ~ani<irr!iiiy \tIh iriicrna11~1ii~l.irr.Sor
d,> 1bel.ei,c, 51r I'rr'siJeni. th.11rhe G,>\crnniciii oi I~el~nditiiendetl ai thsr
finie 10 do t>rher~viscfli~8t.IL.in ;~:<,,>rJdn,.ç<v~iliin~crr1:111onIJ!I.
Thc \çsoi~d ol the b.isic ariJ ;igree,l pr,ipgi$ii dns \\a..thdi the quett~on
whether some new rule of law had emerged so as to permit an extension
beyond 12 miles would, if disputed by Her Majesty's Government, be settled
by the International Court of Jiistice. The terms iised in the agreement be-
tween the Parties are definite and clear. Thev leave no room for ambiroitv.
It is, therefore, in my submission, extraord;nary that Iceland shoiild'nob
seek to maintain that the Court has no jurisdiction.
The Cor».torijo~lriiedfrom II a.m. fo 11.25 a.m.
Mr. President, Members of the Court, the Government of Iceland-appar-
entlv challenae the iurisdiction of the Court. and thev seek to iustifv that
challenge hy irguménts used in their messagesto this court to y&ich 1 have
already referred. May I then reinind the Court of what appear to be those
arguments that are out forward bv the Government of Iceland? They are set
ou? most fully in their Iétter to ihis Court dated 29 May 1972. Ï will go
through thrit letter of 29 May 1972, first culling from it what seemsto be the
main Icelandic arguments, and then countering rhose arguments in detail. On the first page of that letter of 29 May 1972, reference is made to "the
changed circumstances resulting from the ever increasing exploitation of the
fishery resources in the seas surrounding Iceland". This alleged increasing
exploitation is further alleged to entail, for the lcelandic people, a danger
which "necessitates further control by the Government of Iceland, the only
coastal State concerned".
Later in that letter it is stated that-
"The 1961 Exchange of Notes took place under extremcly difficult
circunistances, when the British Royal Navy had been using force to
oppose the 12-mile fishery limit established by the IcelandicGovernmcnt
in 1958."
From that, it appears that the lcelandic Government may now be asserting
that the 1961 Exchange of Notes was void ab ifririo for duress or, to borrow
the terrninology of Article 52 of the Vienna Convention on the Law of
Treaties, for "coercion of a State by the threat or useof force".
1 pass on from that without comment at this stage, but 1 assure the Court
that 1 shall return to this serious allegation.
Now that particulür lcelandic argument is, however, merged with another.
Thisappears to be that, although the 1961Exchange of Notes may have been
valid initially and for certain purposes, it was, for one reason or another,
intended to be very limited both in.its objectives and in its duration. Thus
the letter goeson to assert that the Exchange of Notes "constituted the settle-
ment of that dispute but the agreement it recorded was not of a permanent
nature". The reference in the letter to "that dispute" is presumably meant
to be a reference to the dispute arising from the extension of the lcelandic
fishery limits to 12 miles in 1958.
Next, it is clainied that, under the 1961 agreement, lceland uiidertook to
give the United Kingdom Government six months' notice of any further
extension of its limits in furtherance of the Althing Resolution of 5 May 1959,
and the implication here is, apparently, that this was in fact the only under-
taking laid upon lceland under the Exchange of Notes. Moreover, it is
suggested that even this limited obligation bound the lcelandic Govern-
ment only if it should "further entend the limits immediately or in the near
future".
The argument that the 1961Exchange of Notes was "not of a permanent
nature" appears then to be merged into a much more general proposition,
namelv that "an undertaking for iudicial settlement cannot be considered to
be of a permanent nature".'~his;s followed by the observation that "there
is nothing. ..in any general rule of contemporary international law tojustify
any other view". 1 would say here, in parenthesis, Mr. President, there can
be no doubt that if the suggestion is that al1undertakings for judicial settle-
ments are to be regarded as intrinsically short-lived and ephemeral, this
would undermine the functions and iurisdiction of this Court as the orincioal
judicial organ of the United ~ations. However, the lcelandic ~o;ernmént
do not support this view with any authority. So far from there being nothing
in conternporary international law "LO .ustif..anv other view". as itis ex-
pressed in~the lettter, 1 know of nothing in contemporary international law
which justifies the view there being put forward by the Government of
Iceland.
To return then to the letter of 29 May 1972, it later suggeststhat the 1961
Exchange of Notes was no longer in force because"the abject and purpose ARGUMENT OF SIR PETER RAWLINSON 255
of the 1961 Agreement had been fully achieved" and also that, since ':the
vital interests of the people of lceland are involved", the Government of
Iceland are not willing to confer jurisdiction upon the Court in this case, or
indeed in any case involving the extent of the fishery limits of Iceland.
Now, attached to that letter of 29 May 1972 1 were five Annexes, as well
as a copy of the Memorandum which was entitled Fisheries J~~risdictiotiin
Icelo,id and which was issued by the Ministry for Foreign AîEdirs of Icekand
in February 1972. The Court will find some of these same arguments put
forward in the first and second of the Annexes, that is to say, the Government
of Iceland's aide-mémoire of 31 August 1971, and their aide-mémoire of
24 Febriiarv 1972.
In the fihh Annex, that is, the Resolution adopted by the Althing on
15 February 1972. the Court will there find further reference to the arguments
based on "vital interests" and "changed circumstances" as well as the state-
ment that it is "the fundamental spolicy of the Lcelandic people that the
continental shelf of lceland and the superjacent waters are within the juris-
diction of Iceland".
Finally, in the Icelandic Meniorandum entitled Firheries Ji,risdicrion in
Iceland, which Her Majesty's Government had already put before the Court
as Enclosure 2 to Annex H of our A~~lication. therc apoears, on pages 26,
27, 52 and 55 suggestions that the fishériesoff the coast if a State coriieundec
its exclusive sovereign jurisdiction in such a way as to override any express
obligation of that tat tto submit disoutes concernina t-em to international
j~ri~diction.
Weil, these then, Mr. President, appear to be the contentions of the
Icelandic Government. In the absence of their reuresentative, and in the
exercise of what 1 believe to be my duty, 1have recited them t'o the Court.
1 shall now seek to demonstrate that none of them has any validity.
First, there is the argument, contained in the letter addressed to the
Registrar of the Court by the Foreign Minister of Iceland on 29 May 1972,
to.the effect that the compromissory clause providing for reference to the
Court was intended to anolv onlv where Iceland attemoted to entend ils
7.~,
jiirird:ciiùi\iiitioiigi\ing thc rsqiiire,<ix iiionihr'rioii~c. HI.! thi1, uholl)
in<<~n.i\rcnt ivith ihc pl;iin \iorJiiscJ Itii.1~not ihr. ;iitenti.)n of tP~>;irtici.
Th&! reau!rcment ut' 5%~ ni\>iithi' n%>i<\rA\ in\erte,i tru~IIdir Ilcr Aldicri) 's
Governkent to file an application to the Court before any claim was aituilly
implemented by Iceland. That clause was inserted in default of a firin com-
mitment by Iceland not to implement any extension before Her Majesty's
Government could refer a dispute to the Court. It was desiçned as an alter-
native to such a commitment. It was in no sense conceived as an alter-
native to reference to the Court. This argument by Iceland has no conceivable
merit.
Second, there is the argument that the Exchange of Notes has fulfilled its
purpose. This is stated as the Icelandic view in the two aide-memoire of 31
August 1971,and 21 February 1972,and repcated in the letter of 29 May 1972.
But this is only true of the transitional arrangements permitting British
vesselsto fish in areas within 12 miles for a period of three years. It is cer-
tainly not true of the agreement as a whole.
The Court will recall that the origin of such transitional arrangements lay
in the formula canvassed at the Geneva Conference of 1960. Under that
' II,P. 374-377formula, a coastal State would have been entitled to claim a territorial seaof
six miles and, beyond that, fisheries jurisdiction in a further six-mile zone,
subject to a phasing-out period during which foreign fishing would have
continued in that outer six-mile zone. The idea was to give timefor adjustment
to the foreign fishery interests.
But al1 this was onlv one oart of the agreement hetween the ~hties. For
the Exchange of ~otes of 1961between ~er Majesty's Government and the
Government of Lcelandembodied agreement on four main points. 1 propose
to refer to them in the order which the Icelandic Government look when the
Exchange of Notes was submitted to the Althing for their approval on 28
February 1961. Their memorandum, for this purpose, is set out in Annex 1
to the United Kinadom Memorial. The four main ooints were: first. arree-
- -
ment on the 12-mile fishery limit; becond, agrcemenl on ne%h'baselinei;ihird.
açreemcnt on iranriiional ïrrïngenicnts for 3 pcriod of ihree )cari; and
fourth. agreement on the assurance formula so as to provide for adjudication
by the Court on any future contested extension beyond 12 miles.
Now, whilst the third of these four points (that is, the transitional arrange-
ments) has certainly been fulfilled-because if was transitional arrangements
for a period of three years-the other three points remain a matter of agree-
ment, binding on Lceland and of continuing henefit to both Parties. So, the
argument, or any argument. by lceland that the whole agreement has fulfilled
its purpose, is devoid of substance.
Third, there is the suggestion, also contained in the letter of 29 May, that
the agreement was not of a permanent nature and, by implication, that there-
fore lceland can unilaterally terminate the agreement.
1 must emphasize, Mr. President, that Her Majesty's Government does not
regard this agreement asone in perpetuity; but that does not concede that the
agreement may be terminated unilaterally-and for the very obvious reason
that the Parties specifically agreed upon a means whereby the agreement
could be biought to an end. The Partiesclearly envisaged. first, the possibility
that lceland might in the future claim a fisheriesjurisdiction beyond 12 miles
and, second, in that évent. that the legality of the claim could be either
conceded by Her Majesty's Government or, if not, referred to the Court whose
decision Her Majesty's Government would be bound to accept. That was
to he the method of termination.
The compromissory clause was, in effect, an express clause providing for
termination. How then can it be said with any vdlidity that there is an
impliedright of unilateral termination? In my submission, an express termi-
nation clause must exclude any implied right of unilateral termination. It
would indeed be remarkable if, in a treaty which provided for termination
through the operation of a compromissory clause, a party were able to avoid
the obligations under that compromissory clause by implying a right of uni-
lateral termination.
The whole presumption of internationallaw is against any implied right of
unilateral termination, and this is. amply illustrated by Article 56 of the
Vienna Convention on the Law of Treaties, which Statesin clear terms:
"1. A treaty which contains no provision regarding its termination
and which does not provide for denunciation or withdrawal is not sub-
ject to denunciation or withdrawal . . ."
To that clear proposition. which in my submission is declaratory of existing
customary law. the Vienna Convention provided only two exceptions. They
are: ARGUMENT OF SIR PETER RAWLINSON 257
,'... unless:
(O) it is established that the parties intended to admit the possibility of
denunciation or withdrawal; or
(b) a right ofdenunciation or withdrawal may be impliedby the nature
of the treaty."
This very stringent limitation of any implied right of termination was
necessarv10oreserve lhat most fundamental of norms. nacra sitntservunda.
~ ~..
A stuiy O; the successivereports of the Rapporteurs of the lnternational
Law Commission, leading up to the Commentary of the Commission itself in
submittine-ifs final reoort to th~ ~~n~ral Assenihlv-,.eveals with what care
the general presumption against an implied right of termination was main-
tained. The Commission's Commentary stated:
". ..a right of denunciation or withdrawal will not be iinplied unless it
appears from the general circumstances of the case that the parties in-
tended to allow the possibility of unilaterdl denunciation or with-
drawal." (Draft articles of the lnternational Law Commission, United
Narions Conference on the Loiv of Trcorirs.First and Second Sessions,
Vienna, Oficial Records, p. 71; para. 5 of commentary to Article 53.)
The record shows, Mr. President, conclusively that the Parties never implied
nor intended any unilateral right of termination. Ifthey had implied or in-
tended such a rieht. the insistence of Her Maiestv'.~,overnment on the
assurance formula wbuld bave been otiose and wholly without point, for the
assurance would have been completely nullified.
Nor does the Lcelandic areurnent nain in cosrencv bv severinn the com-
promissory clause from the r~mainderof the agreement and suggeiting that a
right to terminate unilaterally be implied as to the com~romissory clause.
orthat clause-the comoro~isso~~ clause-was envisanid as fundamental
to the whole agreement;'without ii there would have been no agreement.
Such a fundamental clause is incapable of severance. Moreover, since the
comproinissory clause was the agreed mode of termination, it is impossible
to make that clause subject to an implied right of unilateral termination, for
this would make the compromissory clause worthless.
Thus, the Parties cannot have intended to allow unilateral termination;
nor can a right of unilateral termination be implied from the nature of the
treaty. The history of the negotiations and the existence and purpose of the
compromissory clause combine to show that the Parties intended exactly the
opposite.
TO insist that there can be no implied right to terminate a treaty where
that treaty provides some other, agreed, mode of termination is, in the sub-
mission of Her Majesty's Government, consistent, first, no1 only with
established international law, but also, secondly, with the jurisprudence of
this Court.
In the caseconcerning the Appeal Relaring to the J~trisdiction of the ICA0
Cor~ncil, Pakistan pleaded the rule, which had been approved by the Court
in the Norrh Sea Continental Shelfcases,
". . according to which, when an agreement or other insirumerit itself
provides for the way in which a given thing is to be done, it must be done
in that way or not at all" (I.C.J. Reports 1972, p. 68).
1 repedt: ". . .it must be done in that way or not at all." That principle is
particularly apposite to the casenow before the Court. The Exchange of Notes provided a specific method by which any extension
of fisheries jurisdiction by Iceland, and any dispute arising therefrom, should
be tested. It was to be tested bv reference to thiscourt: it was to be decided by
judgment of this Court. Iczlan-dis not free to choose another method. Iceland
is not free to choose unilateral termination. Iceland miist defer to the judg-
ment and the jurisdiction of this Court. Especially where a jurisdictional
clause-or comproniissory clause-is in question, to imply a rjght of uni-
lateral termination must by wholly unacceptable.
1 refer again to the Judgment in the case 1 have just cited, the Appeal
Relating ro the Jltrisdictio,~ of the ICA0 Coi~ricil.The Court there referred to
the ". ..contention . ..that questions that prima facie may involve a given
treaty, and if so would be within the scope of its jurisdictional clause, could
be removed therefrom at a stroke by a unilateral declaration that the treaty
was no longer operative" (ibid., p. 64). But this is precisely analagous to
Iceland's contention. The Court rejected such a contention in a Passage
memorable-if 1may say so, with respect-for its decisiveness:
"The acceptance of such a proposition would be tantamount to
opening the way to a wholesale nullification of the practical value of
jurisdictional clauses by allowing a party first to purport to terminate,
or suspend the operation of a treaty, and then to declare that the treaty
being now terminated or suspended, its jurisdictional clauses were in
consequencevoid, and could not be invoked for the purpose of contesting
the validity of the terinination or suspension,-whereas ofcourseit may
be precisely one of the objects of such a clause to enable that matter to
be adjudicated upon. Such a result, destructive of the whole object of
adjudicability, would be unacceptable." (Ibid., pp. 64-65.)
The submission of Her Majesty's Government is therefore that the Ex-
change of Notes of 1961embodied an agreement which is certain and definite.
That agreement was that. first. if. in th;f~~~~~~~.Iceland should seek to extend
its fishiries jurisdiction beyond'12 miles, and if Her Majesty's Government
contested the legality of that claim under international law as it stood at the
moment of that claim. then. secondlv...ither Partv could a~ol.. . theCourt
ln have ihc Irg~liry of the claini iesic.l TIII. 1%pLecisely the sii.iliiioii irhich
has .irrsoi. Ttie 1'3rtie\ are preicnicd iilth er~cil) the s#tu.iiidn in ithisli both
eni1s:ired ihhi lhis Cour1 \i:i10 have >uriiJi;iion. ki~r \l;iieçi\'~ CiO\ernnient
submit that this is the only interpretation which can be Ca~id~ygiven to this
agreement.
1turn now to argum-nts of a different kind.. . which Iceland aooea.. to
bc stckiiiç siitier. lirrii<idcny thc v~lidiry oillie agrcenient oii rhc groiind
ihat IIiiis io1.1<iIoritiu: or. ?cconJ.y,itiiertiiiii;ite ilic agreeiiihvrrzferrnic
to grounds of nullity or termination recognized in gen&al international law.
In Her Majesty's Governrnent's Memorial, the Court will recognize that
these arguments are classified as follows: first, that the Exchange ofNotes of
1961 was void for duress; second, that the Exchange of Notes of 1961 had
lapsed owing to a fundamental change of circumstances; and third, that the
Exchange of Notes of 1961 had lapsed or had been validly terminated by
reason of the develooment of a new neremotorv rule oermittine coastal
States to assert exclusive fishing rights oCer the waters abo;e theircontinental
shelves, the so-called jas cogens. 1 shall follow, in my submissions, that classi-
fication.
Since these contentions have been exarnined fully in the Memorial, 1can be
brief. ARGUMENT OF SIR PETER RAWLINSON 259
The first and second of these Icelandic contentions-that is, "void for
duress" or "lapsed owing to fundamental change of circumstances"-both
involve aue~ti~ns of fact. and even auestions of ooinion. As to these. while it
may be in order for a rispondent tb address to the Court commuiications
such as the Government of Iceland have done in the present case, without
appointing an Agent, without taking part in the proceedings, the Court
should surely be cautious of giving them the same value as it would to written
and oral pleadings made before the Court.
1give an example, Mr. President. The Government of Iceland have alleged
that during the period of the negotiations leading up to the Exchange of
Notes of 1961 "the British Royal Navy had been using force to oppose the
12-mile fishery limit establishedhy the Icelandic Government in 1958". Now
that is a serious charge. No Agent, no Law Officer, no counsel cornes before
you to make it. No evidence is proffered in support of it.
1suhmit that this Court shoiild dace some limit uoon the admissibility of
assertions made, from afar, by a Governnient which iSnot prepared openly to
substantiate itsallegations before theCourt.
But it is not upon procedural grounds that Her Majesty's Government
refute those Icelandic charges. The evidence recited in Her Majesty's Govern-
ment's Memorial shows conclusively that force was neither used nor threat-
ened to orocure the Exchanee of Notes of 1961, and that. so far as the
from a proposal of the Icelandic Government itself. So much for duress.
Next, there is the assertion that there has been, since 1961, a fundamental
change of circumstances from those existing at the time when the Exchange
of Notes was concluded. In the United Kingdom's Memorial, Her Majesty's
Government claim that such a reliance on fundainental change of circum-
stances must satisfy five conditions if it is to justify the termination of a
treatv. Her Maie. .'s Government referred to the longstan-ins auth-ritv in
international law, including decisions of the Permanent Court, in support of
these five conditions. 1 need not cite those authorities again. The principles
underlv.nr.the five conditions are clear
The fi\ecoridti~oris srcar loll.,a.: tirs!, ihe;hlngiiiu.1 be~lcir~uinïr.in~cs
chisiing ai the timc of the c.>nclusion i~fthe irc.ir; ws,?nJ. ~Iicili.tiige niiisi
be a fundamental one: third. the chanre mus1 be one not foreseen by the
pari~cs; fc~urlh, ~hccht,icncc or'ih~~%cc~rsunisl:ince\ II~L.\li.ivc c,~iis~~~i~icJ
:in e\\cniial h.asisof the c.cinscniof ihr. p.irIOshr.hi>iinJ by ihc trc;ii), and
above 311, fililiilie elleil of ihc clisnge niii.1 he r~di<.ilIO ir<n>f~~riitihe
scope of the obligations still to he performed under the treaty.
In the Memorial, Her Majesty's Government demonstrated that none of
these five conditions is satisfied in the present case. Again1will not repeat al1
that is said on this point in the Memorial. 60th the evidence which the Ice-
landic Government have produced, and the manner in which they have
produced it, are insufficient to prove that there has been, since 1961, a fun-
damental change of circumstances with regard to those existing at the time
of the conclusion of the Exchange of Notes.
It would have been open to the Icelandic Government to bring before the
Court expert witnesses on this point, who could have been questioned either
by the Court or by counsel for the United Kingdom, or by both. But they
have not done so.
If a party in a litigation makes assertions with regard to facts, it must
prove those assertions. This has not been done in the Memorandum cri- titled Fi3herit.r Jllrisdiction i,~Ireland a document which was issued by the
Icelandic Ministry for Foreign Affairs in February 1972,and which is Enclo-
sure 2 to Annex H of the Application instituting proceedings. The same
document was sent to the Court by the Government of lceland as an accom-
paniment to their letter of 29 May 1972. That document contains the state-
ment that "it is well-known" that the fishing activities of the United Kingdom
and Germany "are increasinçly being directed towards the waters around
~ ~ ~ ~-. . There is no evidence to suooort t. . assertion. Indeed. al1 the
si;iiisiics befsre rhc Codri >hou ii reiiilirkablc anJ conttnuing Ioitg-ierm
ji;~bil.r, in the 101.~1:;it:h <iiihe iiiain spe::es :ind rhe n~tion~l ,h:irc.<ii them.
with fl;ctuations confined to quite narrow limits. Even the graph produced in
the document cited shows this to be the case for cod, with the short-term
fluctuations working at that rime in the direction of foreign catches fallingand
Icelandic catches increasing. But apparently it is siiggested that increased
fishing power, with increased mobility, already exists, and can be turned
towards Iceland. For, at one point, the lcelandic document says: "The danger
of intensified foreie- fishin- in lcelandic waters is now imminent. The catch
cap:iciiy of the Jirt~iit \viircr flcei of nati.)ns fi.hin-. in Icel.ind~: naicrs bas
re~slie,l oiiiinoiis proli<~rli<~ns."'rhers iino c\iJeiice ici\iippiirr th<$lisrcrri.in.
Insiexil. in flcr M.ii. .v'i Govcrnnicni'\ hlcniorial.. di . -.er;irih 58. ihcrc is
evidencét@the contrary.
But in any event, this argument has been overtaken by events. The lcelandic
statement was made in February 1972.On 13and 14January, when a British
negotiating team was in Reykjavik, the United Kingdom offered to limit the
British catch in the Icelandic area to 185,000tons, a reduction of 22,000 tons
from the estimated 1971 level. The German Government later made a similar
offer. Those offers were specifically designed to meet the lcelandic appre-
hension about an imminent intensification of fishing by the distant water
countries. without-l emuhasize-anv restriction beina soueht from Iceland.
Since the", the annual catch of unitid Kingdom vesselsha; been limited by
the Court to 170,000 tons. The apprehensions of intensified foreign fishing
are ~roundless
1; short, the first charge is that a fundamental change has taken place, in
terms of intensified foreign fishing. But the statistics refute that charge-il has
just not haapened. The second charpe is t-at such a change is. or -as. about to
tahc plxc Her \I.~jcir)'\ C;,>vernnieni ncrc prcplircd Io enriire ihir ildid n.>t
hcippcn.'The<:ouri ha<no\%r.ilcJ itiûiil $hall not liappen Ir Iiss ni>i hdppened.
Airiinic. hoiic\er. hlr. Prc<iJcnt. ih~t the <it)vcrniiicnt otlieliinJ ~Itdhave
scrioii, rciiion ICIhel!e\e iti:ii n iiindimcni;il ~hingc of :ircriniitlinic~ hdd
ticc~rrc~l. Of \rh;it rclc\;ince ii ihir to ihc jiirisdictiaii of the COII~I' Thcre
can be no connection. The issue in the present case, when we come to the
substantive merits of the disoute. is not whether the Exchanee of ~ ~ ~ ~U~ ~ ~ ~ ~~ ~- ~ ~
1961 prevents lceland from éxtending her exclusive fishery limits to the full
extent permitted by current international law. The issue is rather whether
current international law does indeed permit such an extension as lceland
now seeks Io make.
The question in issue on the substantive merits is, therefore, what is the
current international law to be aoolied? At the oresent staee-~~-~he~ ~ocee.- ~ ~ ~
ings, the issue is even more limited: It is whether: as against the United King-
dom, lceland is bound by the Exchange of Notes of 1961to acceut the decision
of the Court on this suestion of international law. Thor was ihe obligation
which lceland accepted in 1961. How then can the change of circumsrances
which lceland now alleges have any relevance to such an obligation? ARGUMENT OF SIR PETER RAWLINSON 261
There is yet another ground on which lcelaki's reliance on fundamental
change of circumstances must fail. It is well accepted in international law,
and some of the authorities are cited in the Memorial, that the doctrine of
rebus sic stot~tibus does not operate to terniinate a treaty autoniatically, orto
give one party to it a right to denounce it iinilaterally. It operates only to
confer a right to request termination of the treaty and, if that request is
refused, to bring the question whether the treaty should be terminated on that
groiind before an appropriate judicial body. Reliance on the rehrissicsrontibris
doctrine cannot relieve lceland of her undertaking to submit this dispute to
the Court, if lceland at the sanie tinie refuses to appear before the Court to
attempt to uphold that very contention.
The third doubt which lceland seeks to raise concerning the Court is of a
different character. It involves the argument, not that the circumstances have
changed, but that the law itself has changed. lt alleges that the sovereign
right of a coastal nation with respect to the natural resoorces, not merely of
the sedbed and subsoil of the continental shelf, but even of the superjacent
waters, rests not nierely on a rule of general international law but on a rule
of so peremptory a character that it overrides existing treaty obligations.
Her Majesty's Government's Meniorial (para. 74) shows that the first leg
of this proposition goesto the merits, and Lshall not discuss il now.
The second leg of the proposition, the jiir cogr,ischardcter of the alleged
iule, is one which, so far as Her Majesty's Government are aware, hasnever
been advanced before by any governiiient. Indeed, the alleged new rule, far
from being the itrr cozeils. is itself contrarv to customarv international law as
.. ,
c~1iho~I.r.din Ari1.12 2 ,?iihe Ciei~ev;tCon\en~i*)o <>IIille li1g11SCJ.. hlc!rcovcr,
Ille rr.:r.nr Vicnn:, Cun\r.iiiion. .hile pr<i\idiiip for IIlcjri,c.ituitiprinciplr. in
certain circumstances. carefullv restr~ctsthe anolication of the ~rincinle. Ln
fact, any State seeking to invike principle wili, under the ~o"vention, be
bound in the las1resort to subrnit a dispute concerning its interpretation or
application to the International Court of Justice for a decision.
Her Majesty's Government, 1 mus1confess, Mr. President, find il remark-
able therefore that an argumeiit of this chardcter should be put before the
Court fron~a distance by a Party which not only denies the jurisdiction of the
Court, but even declines to appear before the Court to support that denial.
There is an even more fundamental flaw in the objection bdscd on jits
coge,is. It is that it can have no relevance to the particular obligations which
arise under the Exchange of Notes of 1961. Even if there could be a new
peremptory rule of international law authorizing coastal States Io extend
their exclusive fisheries jurisdiction to the edge of the continental shelf
adjacent to theiii, there could be no conflict between such a rule and the
treaty obligations with which we are herc concerned. May 1 remind the Court,
these obligations are twofold. First, that the coastal State, Iceland, shall not
extend its exclusivc fisheries limits at anv .i.en time bevond what is nerniitted
hy inir.rii;ii.onli1.i~ iiiir>r,.cxi11i:itI!tiie. Sci<>iidl!tli~r.idi\piiit <i>nicrriiiii:
thc Ikg.~lity <ii,III\ p:irti;iil.c\tr.n,.g,i, shi>iilJ br. rcicrreJ io :!ilil JcirriiiiiicJ
b> the lntcrn:jrton.~l (t>urt ~~fJr~\iicc: II isiIi~<uh1.11 i, IIII\\,IC.XI ,tacc $4
-
these proceedings.
These, Mr. President, then are the matters wliich arise at this hearing at
this staee of the case. On I Auzust. L said. in mv sub~nissions.that theissue
in this caseis whether lceland s6ould beentitled by unilateral decision to take
al1 the fish for herself, notwithstanding the disastrous eiïect that this would
have on thosc who, up to now, have shared the fishery witli her. 1also said
that at the proper tinie 1 would argue that lceland has no right in inter- READING OF THE JUDCMENT
FOURTH PUBLIC SITTING (2 1173, 10am.)
Prese~rt:[Seesitling of 5 1 73.1
READING OF THE JUDGMENT
The PRESIDENT: The Court nieets today to deliver ifs Judginent on the
qiiestion of ils iurisdiction in the Fisheries Jirri~rlicrioiicase institbyedthe
Ünited Kinadoiii of Great Britain and Norihern lreland~ ~~~insi the ~enublic
of Iceland b; Application filed on 14April 1972. ~.
The Partics were diily notified of the prescnt sitting, in accordancc with
Article 58 of the Statiiie; I note the presence in Court of the Deputy-Agent
and coi~nselfor the United Kingdom.
I shall now read the English tex1 of the Judgment of the Coiirt on the
quesiion of ils jurisdiction.
[The Presideni reads from paragraph 11 10the end of the Judgnient 1.1
I shall now ask the Registrar to read the operritive clause of the Judgment
in French.
[The Registrar reads the operative clause in French 2.1
L iiiyself append a declaration to the Judgment. Judge Sir Gerald Fitz-
maurice üppends a separate opinion 10 the Judgment. Judge Padilla Nervo
appends a disscniing opinion to the Judgment.
In order 10 avoid thc delay iiivolved in printing the Judgnient, particiilarly
in view of the Tÿctthat the composition of the Court will be altered in a few
days' tiiiie.ithas been decided to read thc Judgnient today from a stencil-
duplicated text. The nornial printed edition will be available in.aboi11 a
week's tiiiie.
(Si~~red) ZAFRULLAKHAN,
Presidcnt.
(Sigizetl) S. AQUARONE,
Regisirar.
1I.C.J.Rrporrs 1973,pp. 7-22.
2 /bi<l.1122.
Oral Arguments on Jurisdiction of the Court - Minutes of the Public Sittings held at the Peace Palace, The Hague, on 5 January and 2 February 1973, President Sir Muhammad Zaffrulla Khan, presiding