Summary of the Judgment of 4 December 1998

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

CASE CONCElRNINGFISHERIES JURI[SDICTION(SPAIN v. CANADA)
(JURISDICTION OF THE COURT)

Judgment of 4 December 1998

h~its Judg~llenton jurisdiction in the case concerning the amended Act and its regulations, including the pursuit,
Fisheries Jurisdiction (Spain 11.Canada) the Court, by boarding and seizure on the high seas, on 9 March 1995, of
twclvc votes against five. declared thatit had nojurisdiction a fishing vesse- the Estr~- flying the Spanishflag. The
to adjudicateupon the disputebrought in 1995 by Spain. Application invoked as the basis of the jurisdiction of the
Courtthe declarationswherebyboth Stateshave acceptedits
The Court was composed as follows: President compulsory jurisdiction in accordance with Article 36,
Schwehcl; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillauine,Kailjeira,Herczegh,Shi, Fleischhauer, paragraph 2, ofits Statute.
Koroma, Vereshchetin, I-Iiggins, Parra-Arangurea, By letterof 21April 1995,the Ambassador of Canadato
Kooijmans. Rezek; Judges ad hoc Lalonde, Torres the Netherlands informed the Couii that, in his
Bemirdcz; Registrar Valencia-Ospina. Governincnt's opinion, the Court "manifestly lacks
jurisdiction to deal with the Application filed by Spain..,

by reason of paragraph 2 ((4 of the Declaration, dated 10
May 1994, whereby Canada accepted the coinpulsory
The text of the operative paragraph of the Judgment jurisdiction ofthe Court".
At a meeting between the President of theCourt and the
reads asfollows: representativesof the Parties it wasagreed that the question
"89. For thesereasons, of the jurisdiction of the Court should be separately
THE COURT
determined beforeanyproceedingson the merits;agreement
By twclvevotes to five, was also reached on time limits for the filing of written
Finds that it has no jurisdiction to adjudicate upon pleadings on that question. A Memorial by Spain and a
the dispute brought before it by the Applicai.ionfiled by Counter-Memorial by Canada on the question of the
the Kingdom ofSpainon 28 March 1995. jurisdiction of the Court were duly filed within the time
limits prescribed by anOrder of the President of 2 May
IN FAVOUR: President Schwebel; Judges Oda, 1995.
Guillaume, Hcrczegh, Shi, Fleischhauer, Koroina,
I-liggins.Parra-Arangurea, Kooijmans, Re2e.k;Judge ad After Spain had expressed the wish to be authorized to
hocLalonde: submit a Reply and Canada had opposed that request, the
AGAINST: Vice-President Weeramantry; Judges Court, by an Order of 8 May 1996, decided that it was
B~:djaoui,Raiijeva, Vereshchetin; Judge ad hoc Torres sufficiently informed, and that the preseiltation by the
Parties of further written pleadings on the question of the
Bcmirdcz." Court's jurisdiction therefore did not appear necessary.

Publichearings wereheld between9 and 17 June 1998.
In the Application,the followingrequests werc made by
Spain:
President Schwebel and Judges Oda, K.oroma and "As for the precise nature of the conlplaint, the
Kooijmans appended separate opinions to the Judgment of Kingdom of Spainrequests:
the C:ourt.Vice-President Weeramantry, Judges Bedjaoui,
Rar~jeva and Vereshchetin, and Judge ad hoc Torres (A) that the Court declare that the legislation of
Berruirdezappendeddissenling opinionsto the Judgment of Canada, insofar as it claims to exercise a jurisdiction
the Co~11.t. over ships flyinga foreign flag on the high seas. outside
the exclusiveeconomiczone of Canada,is not opposable
* to the Kingdoinof Spain;
* *
(B) that the Courtadjudge and declare that Canada
is bound to refrain froin any repetition of the acts
Rei.ic.nyj'thryr,oceedii~g.said suhntission.r othe coinplainedof, and to offer to the Kingdomof Spainthe
Prri-ties reparation that is due, in the for1of an indemnity the
(paras. 1-12) amount of whichmustcoverall the damages andinjuries
occasioned;and
The Court begins by recalling that on 28 March 1995,
Spain iostituted proceedings against Canada in respect of a (C) that, consequently, the Court declare also that
disp~~tcrelating to the amendment,on 12 May 1994,of the the boarding on the high seas. on March 11)95,of the
ship Estni flying the flag of Spain and the measures of
Canadian Coastal Fisheri.es Protection Act, and the coercion and the exercise of jurisdiction over that ship
silI>sequentamendn~entstc~the regulations implementing and over its captainconstitutea concreteviolation ofthe
that Act. as wellasto specific actions taken on the basis of aforementioned principles and norms of international from thejurisdiction of the Court(4 disputesarisingout of
law." or concerning conservation and management measures
In the oral proceedings, the following submissionswere taken by Canada with respect to vessels fishing in the
presentedby the Parties: NAFO Regulatory Area, as defined in the Convention on
Future Multilateral Cooperation in the Northwest Atlantic
011behalfof theSpanis11Governittent,at the sittingof 15 Fisheries, 1978,and the enforcementof suchmeasures."
June 1998:
"At the end of our oral arguments,we again note that On the same day that the Canadian Government
Canada has abandoned its allegation that the dispute depositedits new declaration,it submittedto ParliamentBill
between itself and Spain has become moot. At least, it C-29 amending the Coastal Fisheries Protection Act by
extending its area of application to include the Regulatory
appearsto haveunderstoodthat it cannotbe assertedthat Area of the Northwest Atlantic Fisheries Organization
the Spanish Application, having no further purpose for
the future, merely amounted to a request for a (NAFO).Bill C-29 was adoptedby Parliament, aridreceived
declaratoryjudgment. Nor does it say - a fact of which the Royal Assent on 12May 1994. The Coastal Fisheries
we take note - that the agreement between the Protection Regulations were also amended, on 25 May
European Union and Canada has extinguished the 1994, and again on 3 March 1995. when Spanish and
Port~~guesefishing vessels were taken up in Table IV of
present dispute. Section 21 (the category of fishing vessels which were
Spain'sfinal submissionsare thereforeas follows: prohibited from fishing for Greenland halibut in the area
We noted at the outset that the subjectmatter of the
dispute is Canada's lack of title to acton the high seas concerned).
On 12 May 1994, following the adoption of Bill C-8,
against vessels flying the Spanish flag, the fact that Canada also amended Section 25 of its Criminal Code
Canadian fisheries legislationcannot be invoked against relating to the use of forceby police officersand otherpeace
Spain, and reparation for the wrongful acts perpetrated officers enforcing the law. This Section applied as well to
against Spanish vessels. These matters are not included
in Canada's reservationto thejurisdiction ofthe Court. fisheriesprotection officers.
We also noted that Canada cannot claim to On 9 March 1995,the Estai, a fishing vessel flying the
Spanish flag and manned by a Spanish crew, was
subordinate the application of its reservatioiito the sole interceptedand boarded some 245 iliiles from the Canadian
criterion of its national legislation and its own appraisalcoast, in Division 3L of the NAFORegulatoryArea (Grand
without disregardingyour competence,under Article 36, Banks area), by Canadian Government vessels. The vessel
paragraph 6, of the Statute, to determine your own
jurisdiction. was seized and its master arrested on charges of violations
of the CoastalFisheries ProtectionAct andits implementing
Lastly, we noted thatthe use of force in arresting the regulations. They were brought to the Canadian port of St.
Estai and in harassing other Spanish vessels on the high John's, Newfoundland, where they were charged with
seas, as well as the use of force contemplated in offencesunder theabove legislation,and inparticularillegal
CanadianBills C-29 and C-8, can alsonot be includedin fishing of Greenland halibut; part of the ship's catch was
the Canadian reservation, because it contravenes the
provisionsof the Charter. confiscated. The members of the crew were released
immediately. The master was released on 12 March 1995,
For all the above reasons, we ask the Court to following the payment of bail, and the vessel on 15 March
adjudgeand declarethat it hasjurisdiction in this case." 1995,followingthe posting of abond.
On behalfof the CanadicrnGovernment,at the sitting of The same day that the Estui was boarded, the Spanish
17June 1998: Embassy in Canada sent two Notes Verbales to the

"May itplease the Courtto adjudge and declare that Canadian Department of Foreign Affairs and international
the Court has no jurisdiction to adjudicate upon the Trade. The second of these stated inter alia that: "the
Applicationfiledby Spainon 28 March 1995." Spanish Government categorically condemn[ed] the pursuit
and harassment of a Spanish vessel by vessels of the
Canadiannavy, in flagrant violation of the internationallaw
Background to the case in force, since these acts [took] place outside the 200-mile
(paras. 13-22)
The Court begins with an account of the background to zone".
I11its turn, on 10March 1995the Canadian Department
the case. of Foreign Affairs and International Trade sent a Note
On 10 May 1994 Canada deposited with the Secretary- Verbale to the Spanish Embassy in Canada, in which it was
General of the United Nations a new declaration of stated that[tlhe Estai resisted the efforts to board hermade
acceptance of the compulsory jurisdiction of the Court.
Canada's prior declaration of 10 September 1985 had by Canadian inspectors in accordance with international
practice"and that "the arrest of the Estai was necessary in
already contained the three reservations set forth in order to put a stop to the overfishing of Greenland halibut
subparagraphs (a), (b) and (c) of paragraph 2 of the new by Spanishfishermen".
declaration. Subparagraph (4 of the 1994 declaration, A.lsoon 10 March 1995, theEuropean Cominunity and
however, set out a new, fourthreservation, furtherexcluding
its member States sent a Note Verbale to the CanadianDepartment of Foreign Affairs and International Trade of fisheries stocks with respect to vessels fishing in the

wliich protestedagainstthe Canadianaction. NAFO RegulatoryArea andtheir enforcement.
On 16 April 1995, an "Agreement constituted in tlie Spain insists that it is free, asApplicant in this case,
form of an Agreed Minute, an Exchange of Letters, an to characterize the dispute that it wishes the Court to
Exchzmgeof Notes and the Annexes thereto between the resolve.
European Community and Canada on fisheries in tlie
The Courtbegins by observingthat there is nodoubtthat
context of the NAFO Convention" was i1iil:ialled;this it is for the Applicant, in its Application, toesent to the
Agreement was signed in Brussels on 20 April 1995. It Court the dispute with which it wishes to seize tlie Court
concerned tlie establish meno ^f a Protocol to strengthenthe and to set out the claims which it is submitting to it.
NAFO Consel-vation and Enforcement Measures"; the Paragraph 1of Article40 of the Statuteof the Courtrequires
immediate implcinentation 011 a provisionalbasis, of certain inoreover that the "subject of the dispute" be indicated in
control and enforcementmeasures;the total allowablecatch
for 1995 for Greenland halibut within the area concer~ied; the Application; and, for its part, paragraph 2 of Article 38
of the Rules of Court requires "the precise nature of the
and c:ertainmanagement a:rrangemeiitsfor stocks of this claim" to be specified in the Application. In a number of
fish. instances in the past the Court has had occasion to refer to
The Agreed Minutes further provided as follows: "The these provisions. It has characterized the111as "essential
European Coiiiinunityand Canada niaintaiiitheir respective froin the point of view of legal security and the good
positisonson the conformity of the amendment of 25 May administrationofjustice".

1994 to Canada's Coastal Fisheries Protection Act, and In order to identify its task in my proceedings instituted
subsequent regulations, wii:li customary internatioiial law by one State against another, the Couirt must begin by
and the NAFO Convention.Nothing in this Agreed Minute examining the Application. However, it niay happen that
shall prejudice any nlu1tila:teralconvention to which the uncertainties or disagreements arise with regard to the real
European Community and Canada, or any Member State of subjectof the dispute with whichthe Court has been seized,
the European Comniunity and Canada, are parties, or their or to the exact nature of the claims submitted to it. In such
abilityto preserve and defendtheir rights in conformitywith
cases the Court cannotbe restrictedto a considerationof the
internationallaw, and the views of either Party with respect terms of the Application alone nor, more generally. can it
to any question relating to the Law of tlie Sea." The regarditself as bound by the claimsof the Applicant.
European Community emphasized that the stay of It is forthe Court itself, while givingparticular attention
prose1:ution against the vessel Estai and its master was to the formulationof the disputechose11by the Applicant,to
essentialforthe applicationof the AgreedMinute.
determine on an objective basis the dispute dividing the
01118April 1995the proceedings against the Estui and parties, by examining the position of both Parties. It will
its master were discontinu.ed by order of tha Attorney- base itself not only on the Application and ha1
General of Canada; on 19 April 1995 the bond was submissions, but on diplomatic exchanges, public
discharged and the bail was repaid with interest; and statementsand otherpertinentevidence.
subsequently the confiscated portion of the catch was
returned. On 1 May 1995 tlie Coastal Fis1ierie.sProtection Inorderto decideon the preliminaryissue ofjurisdiction
Regul.ations were amendecl so as to remove Spain and which arises in the present case, the Court will ascertainthe
dispute between Spain and Canada, taking accouiit of
Portugal from Table IV to Section21. Finally, the Proposal Spain's Application, as well as the various writtenand oral
for ItriprovingFisheriesControl and Enforcement. contained pleadingsplaced before theCourt by theParties.
in the Agreement of 20 April 1995, was adoptedby NAFO The filing of the Applicationwas occasionedby specific
at its annual meeting held in September 1995 and became
nieasilresbinding onall CorltractingPartieswith effect from acts of Canada wliich Spain contends violated its rights
29 November 1995. under internationallaw. These acts were carried out on the
basis of certain enactments and regulations adopted by
Canada, which Spain regards as contrary to international
The strbject of the dispirte law and not opposable to it. It is in that context that the
(paras. 23-35) legislative enactments and regulations of Canada shouldbe
considered.The specific acts which gave rise to the present
Neither of the Parties d,:nies that there exists a dispute
between them. Each Party, however, characterizes the dispute are the Canadian activities on the high seas in
dispute differently. Spain has characterized the dispute as relation to the pursuit of tlie Estui, the ineans used to
one relating to Canada's lack of entitlement to exercise accomplish its arrest and the fact of its arrest, aiid the
jurisdiction on the high seas, and the non-opposabilityof its detention of the vessel and arrest of its master, arisingin
amended Coastal Fisheries Protection legislation and Canada's amended Coastal Fisheries Protection Act aiid
regulations to third States, including Spain. Spain further iinplenienting regulations. The essence of the dispute
between the Parties is whether these acts violated Spain's
maintains that Canada, by its conduct, has violated Spain's
rights under internatioilallaw and that suchviol~~tionntitles rights under international law and require reparation. The
it to reparation. Canada states that the dispute concerns the Court must now decide whether the Parties have conferred
adoption of ineasurcs for the conservationand inanagenient upon itjurisdiction inrespectof that dispute.Thejurisdictiorl of the Cozirt "It is said that Spain argues for the most r.estrictise
(paras. 36-84) scope pertr~ittedof reservations, namely a restrictive
interpretationof them ..This is not true. Spain supports
As Spain sees it, Canada has in principle accepted the tlie most limited scope permitted in the coiltext of
jurisdiction of the Court through its declaration under observing of the general rule of interpretationlaid down
Article 36, paragraph 2, of the Statute, and it is for Canada in Article 31 of tlie Vienna Convention on the Law of
to show that the reservation contained in paragraph 2 (4
thereto does exempt the dispute between the Parties from Treaties."
thisjurisdiction. Canada, for its part, asserts that Spain must Spain further contended that the contru pi-ojererltem
bear the burden of showillg why the clear words of rule, under which, when a text is atnbiguous, it must be
consmed against the Party who drafted it, applied in
paragraph 2 (4 do not withhold this matter from the particular to unilateral instruments such as declarations of
jurisdiction of the Court. acceptance of the con~pulsoryjurisdiction of the Court and
The Court points out that theestablishmentor otherwise
of jurisdiction is not a matter for the parties but for the the reservatiolls which they contained. Finally, Spain
Court itself. Although a party seeking to assert a fact must emphasized that a reservation to the acceptance of the
bear the burden of proving it, this has no relevance for the Court,s jurisdiction must be interpreted so as to be in
conformity with. rather than contrary to. the Statute of the
establishment of the Court's jurisdiction, which is a Charter of United Nations and general
"question of law to be resolved in the light of the relevant international law. For its part, Canada emphasized the
facts". 'That being "3 there is no burden of proof to be unilateral nature of such declarations and reservations and
dischargedin thematter ofjurisdiction.
contended that the latter were to be interpreted in a natural
Declarations of acceptance of tlze Court's coinpulsoiy way, in context and with particular regard for the intention
of the reserving State.
jurisdictio~t and their.irtterpretatio~t The Court recalls that the interpretation of declarations
(paras. 39-56) made under Article 36, paragraph 2, of the Statute, and of
As the basis of jurisdiction, Spain founded its claim any reservations they contain, is directed to establishing
whether mutual consenthas been givento thejurisdiction of
solely on the declarations made by the Parties pursuant to
Article 36, paragraph 2, of the Statute. On 21 April 1995 the Court. It is for each State, in formulatingits declaration,
Canada informed the Court, by letter, that in its view the to decideupon the limits it places upoil its acceptanceof the
Court lacked jurisdiction to entertain the Application juristliction of the Court: "This jurisdiction only exists
because the dispute was within the plain terms of the within the limits within which it has been accepted".
reservation inparagraph2 (4 of the Canadiandeclarationof Conditions or reservations thus do not by their terins
10 May 1994. This position was elaborated in its Counter- derogate from a wider acceptance already given. Rather,
they operate to define the parameters of the State's
Memorial of February 1996,and confirmed at the hearings.
From the arguments brought forward by Spain the Court acceptance of the compulsory jurisdiction of the Court.
concludes that Spain contends that the interpretation of There is thus no reason to interpret theill restrictively. This
paragraph 2 (4 of its declaration sought for by Canada is tme even when, as in the present case, the relevant
would not only be an anti-statutory interpretation, but also expression of a State's consent to the Court's jurisdiction,
an anti-Charter interpretation and an anti-general and the limitsto that consent,represent ainodificationof an
international law interpretation, and thus should not be earlier expressionof consent,given within wider limits; it is
accepted. The issue for the Court is consequently to the d.eclarationin existence that alone constitutes the unity

determine whether the meaning to be accorded to the to be interpreted, with the same I-ules of interpretation
Canadian reservation allows the Court to declare that it has applicable to all its provisions, including those containing
jurisdiction to adjudicate upon the dispute brought before it reservations.
by Spain's Application. The regime relating to the interpretation of declarations
Different views were proffered by the Parties as to the made:under Article 36 of the Statute which are unilateral
acts of State sovereignty, is not identical with that
rules of international law applicable to the interpretation of
reservations to optional declarations made under Article 36, established for the interpretation of treaties by the Vienna
paragraph 2, of the Statute. In Spain's view, such Convention on the Law of Treaties. In the event, the Court
reservations were not to be interpreted so as to allow has in earlier cases elaborated the appropriate rules for the
reserving States to undermine the system of coinpulsoiy interpretationof declarationsand reservations.
jurisdiction. Moreover, the principle of effectiveness meant In accordance with those rules the Court will interpret
that a resenration must be interpreted by reference to the the relevant words of a declaration including a reservation
object and purpose of the declaration. which was the
contained therein in a natural and reasonable way, having
acceptance of the compulsory jurisdiction of the Court. due regardto the intentionof the Stateconcernedat the time
Spain did not accept that it was making the argument that when it accepted the compulsoryjurisdiction of the Court.
reservations to the compuilsoryjurisdiction of the Court The intention of a reserving State inay be deduced not only
should be interpreted restrictively; it explained its position from the text of the relevant clause, but also from the
in this respect in the followingterms: context in which the clause is to be read, and anexaiiii~nationof evidence regarding the circumstances of its cases responsible for acts attributable to them that violate

preparation and tlie purposes intended to be served. In the the rights of other States. Any resultantdisputesare required
present case tlie Court has such explanatioiis in 1.1form of to be resolved by peacefill means, the choice of which,
Canadian ministerial statements, parliamentary debates. pursuant to Article 33of the Charter, is left to the parties.
legislativeproposals and press commuiiiquCs.
It follows from the foregoiiig analysis that the contra Sul,pai-agruph(d) ofpu~.agrayh 2 of Cunuda :r

yrofererttenz rule has no role to play in this case in decluration of 10 May 1994
interpreting the reservatiorl contained in the unilateral (paras. 57-84)
declaration niade by Canada under Article 36, paragraph 2. In order to determine whether the Parties have accorded
of the Statute.
The Court was also addressed by both Parties on the to the Courtjurisdiction over the dispute brought before it,
principle of effectiveness. C'ertainly,this principle has an the Court must now interpret subparagraph (6) of paragraph
3 of Canada's declaration, having regard to the rules of
imporl:aiitrole in the law of treaties and in thejurisprudence interpretationwhich it hasjust set out.
of this Court: however, what is required in the firstplace for Before commencing its examination of the text of the
a reservation to a declaration niade under .4rticle 36, reservation itself, the Court observes that the new
paragraph 2, of the Statute,is that it should be interpreted in
a 1nan:nercompatible with the effect sought by the reserving declaration differs from its predecessor in one respect only:
State. the addition, to paragraph 2, of a subparagraph (4
containing the reservation in question. It follows that this
Spain has contended that, in case of doubt, reservations reservation is not only an integral part of the current
coiitai.nedin declarations arc;to be interpreted consistently declaration but also an essential componentof it, and hence
with legality and that any interpretation which is of the acceptance by Canada of the Court's compulsory
inconsistent with the Statuteof tlie Court, the Charter of the jurisdiction.
United Nations or with general international law is
inadmissible. Spaiii argues that, to coiiiply with these The Court further notes, in view of the facts as
precepts, it is necessary to interpret the phras.2 "disputes summarized above, the close links between Canada's new
declaration and its new coastal fisheries protection
arising out of or conceniing conservation and rrlanagement legislation, as well as the fact that it is evident from the
measures taken by Canada with respect to vessels fishing in parliamentary debates and the various statements of the
the NAFO Regulatory Area ...and tlie enforcement of such Canadian authorities that the purpose of the new declaration
measures" to refer only to measures which, since theyrelate
to areas of the high seas, must come within tlie framework was to prevent the Court from exercising its jurisdiction
of an existing international agreement or be directed at over niatters which inight arise with regard to the
stateless vessels. It further argues that an eiifcrccment of international legality of the amended legislation and its
such ineasures which involves a recourse to force on the implementation.
The Court recalls that subparagraph 2 (4 of the
high seas against vessels flying flags of other States could Canadian declarationexcludes the Court's jurisdictionin the
not be consistent wit11interr~atioiiallaw atid thal:this factor
too requires an interpretation of the reservation different followingterms:
from thatgiven to it byCanada. "disputes arising out of or concerning conservation and
The Court observes that Spain's positioil is not in management measures taken by Canada with respect to
vesselsfishing in the NAFO RegulatoryArea, as defined
conformity with the principle of interpretation whereby a in the Conventionon Future MultilateralCooperation in
reservationto a declaration of acceptanceof tlie conipulsory the Northwest Atlantic Fisheries, 1978, and the
jurisdi.ctionof the Court is to be interpreted in a natural and
reasonableway, with appropriateregard for tliei~tentioiisof enforcementof such measures".
the reserving State aiid the purpose of the res~:rvation.In Canada contendsthat the dispute submitted to the Court
point of fact, reservationsfrom the Court'sjuristliction may is precisely of the kind envisaged by the cited text; it falls
be made by States for a variety of reasons; soinetiines entirely within the terms of tlie subparagraph and the Court
precisely because they feel vulnerable about the:legality of accordinglyhas no jurisdiction to entertain it. For Spain, on
the other hand, whatever Canada's intentions, theywere not
their position or policy. Nowhere in the Court's case-law
has it been suggested that interpretation in acco!-dancewith achieved by the words of the reservation, which does not
tlie legality underinteimationallaw of the matters exempted cover the dispute;thus the Court hasjurisdiction. In support
from the jurisdiction of the Court is a rule that governsthe of this view Spain relies on four main arguments: first, the
interpretation of such reservations. There is a fundaniental dispute which it has brought before the Court falls outside
distinction between the acceptance by a State of the Court's the terms of the Canadian reservation by reason of its
jurisdiction and tlie compatibility of particular acts with subject matter; secondly, the amended Coastal Fisheries
international law. The former requires consent. The latter Protection Act and its implementing regulations cannot, in

question can only be reached when the Court deals with the internationallaw, co~lstitute"conservation and management
merits, after having established its jurisdiction and having measures"; thirdly, the reservation covers only "vessels"
heard full legal argument by both parties. Whether or not which are stateless or flying a flag of convenience; and
Statesaccept thejurisdiction of tlie Court, they raiiiainin all fourthly, the pursuit, boarding and seizure of the Estnicannot be regarded in internationallaw as "the enforcement conservation and management ineasures but unlawful acts
of ..."conservationand management"measures". The Court pure and simple.
exanlineseachof these argumentsin turn.
Canada, by contrast, stresses the very wide meaning of
the word "measure". It takes the view that this is a "generic
Meaning of the teiein"disputes arisirtg out of or term", which is used in international conventions to
corlcentiitg" encornpass statutes, regulations and administrative action.
(paras. 62-63) Canada further argues that the expression"conservation and
management measures" is "descriptive" and not
The Court begins by pointing out that, in excludingfrom
its jurisdiction "disputeswising out of or coitcerrling"the "nomnative"; it covers "the whole range of ineasures taken
consel-vation and management measures in question and by Stateswith respectto the livingresourcesof the sea".
Tlie Court points out that it need not linger over the
their enforcement, the reservation does not reduce the question whether a "measure" may be of a "legislative"
criterion for exclusionto the "subject matter"of the dispute. nature. As the Parties have theinselves agreed, in its
The words of the reservation - "disptrtesarising out oj'or
collcerning" - exclude not only disputes whose immediate ordinary sense the word is wide enough to cover any act,
"subject matter" is the measures in question and their step or proceeding, and imposes no particular liinit on their
enforcement. but also those "conceritirtg"such measures material content or on the aim pursued thereby. Nunierous
international conventions include "laws" among the
and, more generally, those having their "origin" in those "mea!;ures"to which theyrefer. The Court furtherpoints out
ineasures ("ar-isingout of')- that is to say, those disputes that, in the legislative system as in that of many
which, in the absence of such measures, would not have
come intobeing. other countries, a statute and itsiinplementing regulations
The Court has already found, in the present case, that a cannot be dissociated. The statute establishes the general
legal frameworkand the regulations permit the application
dispute does exist between the Parties, and it has identified of the statute to meet the variable and changing
that dispute. Itust now determinewhether that dispute has circurnstances through a period of time. The regulations
as its subject matter the measures mentioned in the implementing the statute can have no legal existence
reservation or their enforcement. or both, or concerns those
measures, or arises out of them. In order to do this, the independently of that statute, while conversely the statute
fundatnental question which the Court must now decide is may require implementingregulationsto give it effect.
The Court shares with Spain the view that an
the meaningto begivento the expression"conse~~~atio annd international instrument must be interpreted by reference to
Innnagentent nteasures ..." and "e~tforceineitt of'sztch international law. However, in arguing that the expression
measzwes"inthe contextof the reservation.
"conservation and management measures"as used in the
Meailing of "coizservation artd ntnitngente~ttineastlres " Canadian reservation can apply only to measures "in
conformity with international law", Spain would appear to
(paras. 64-73) mix two issues. It is one thing to seek to determinewhether
Spainrecognizes that the tenn "niec~surei" s "an abstract a concept is known to a systein of law, in this case
iliternational law, whether it falls within the categories
word signifying an act or provision, a dkmarche or the
course of an action, conceived with a precise aim in view" proper to that system and whether, within that system, a
and that in consequence, in its most general sense, the particular meaning attaches to it: the question of the
expression "con.sei?mtioraznd nlnnagenzmztiileasure"must existence and content of the concept within the systenl is a
be understood as referring to an act, step or proceeding matter of definition. It is quite another matter to seek to
designed for the purpose of the "conservation and determine whether a specific act falling within the scope of
a concept known to a system of law violates the normative
management of fish". However, in Spain's view this
expression, in the particular context of the Canadian rules of that system: the question of the conformity of the
reservation, must be interpreted more restrictively. Spain's act with the systeinis a questionof legality.
main argument, on which it relied throughout the Accordingto internationallaw, in order for a measure to
proceedings, is thatthe term "conservation andmanagement be characterized as a "conservation and management
measures" must be interpreted here in accordance with tneasure", it is sufficient that its purpose is to conserve and

international law and that in consequence it must, in inanage living resources and that, to this end, it satisfies
particular, exclude any unilateral "measure" by a State various technical requirements. It is in this sense that the
which adversely affected the rights of other States outside terms "conservation andmanagement measures" have long
that State's own area ofjurisdiction.Hence, in international been understood by States in the treaties which they
law only two types of measures taken by a coastal State conclilde. The same usage is to be found in the practice of
could, in practice, be regarded as "conservation and States. Typically, in their enactments and adnlinistrative
management measures": those relating to the State's
acts, States describe such measures by reference to factual
exclusive economiczone; and those relating to areas outside and scientificcriteria.
that zone, insofar as these came within the framework of an Reading the words of the reservation in a "natural and
internationalagreementor were directed at statelessvessels. reasonable" manner, there is nothing which permits the
Measures not satisfying these conditions were not Court to conclude that Canada intended to use theexpression "conservation anclmanagement measures" in a Meaning aizdscope of thephi-use "uitdthe erlforceinent
sense different from that generally accepted ininternatioilal of suclznzeaszrres"
law and practice. Moreover, imyother interpretationof that (paras. 78-84)
expression would deprive the reservation of its intended
effect. The Court then examines the phrase "and the
eiforcemeizt of szrcltriteasui-es, n the meaning and scope
After an examination of the amendments made by of which the Parties disagree. Spain contends that an
Canada on 12 May1994to tlie CoastalFisheries Protection exercise ofjurisdiction by Canada over a Spanishvessel on
Act an'don 25 May 1994 and 3 March 1995to the Coastal the high seas entailing the use of force falls outside of
Fisheries Protection Regu1at:ionstlie Court conc:ludesthat Canada's reservationtothe Court's jurisdiction.
the "m~easures"taken by Canada in amending its coastal
fisherits protection legislatioil and regulations constitute The Court notes that, following the adoption of Bill C-
"conservation and management measures" in the sense in 29, the provisions of the Coastal Fisheries Protection Act
are of a character and type to be found in legislation of
which that expression is commonly understood in various nations dealing with fisheries conservation and
international law and practice and has been used in the management, as well as in Article 22 (1) @ of the United
Canadianreservation. Nations Agreement on Straddling Stocks of 1995. The

Meaning to be attributed to the word "vessels" limitations on the use of force specified in the Coastal
Fisheries Protection Regulations Amendment of May 1994
(paras. 74-77) also bring the authorized use of force within the category
The Court goes on to observe that the conservation and familiar in connection with enforcement of conservation
management measures to which this reservation refers are measures. The Court further notes that the purpose of other
Canadian enactments referred to by Spain appears to have
nieasures "taken by Caitada with respect to vessels-fislziizg been to control and limit any authorized use of force, thus
iil theIVAFORegrl(itor?,Arecz,crsdefiled in the (?oitventiorr
on Future Multilc1tei~uICooperatioi~ ii~ the NOJ-thwest bringing it within the general category of nieasures in
Atlantic Fisheries, 1978".As the NAFO "RegulatoryArea" enforcementof fisheriesconservation.
as defined in the Conventionis indisputablypart ofthe high For all of these reasons the Court finds that the use of
seas, t'heonly reniaiiiing issue posed by this part of the force authorizedby the Canadianlegislationand regulations
reserva.tion is the meaning to be attributed to the word falls within the ambit of what is commonly understood as

"vesse1.s". Spain argues that it is clear from the enforcementof conservationand managementmeasuresand
parlianientary debates which preceded the adoption of Bill thus falls under the provisions of paragraph 2 (4 of
C-29 that the latter was intended to apply only i;ostateless Canada's declaration. This is so notwithstanding that the
vessels. or to vessels flying a flag of convenience. It reservation does not in terms mention the use of force.
followed, according to Spain. - in view of the close links Boarding, inspection, arrest and minimum use of force for
between the Act and the reservation - that the latter also those purposes are all contained within the concept of
enforcement of conservation and management measures
covered only measures taker1against such vessels. Canada
accepts that, when Bill C-29 wasbeing debated, there were accordingto a "natural and reasonable"interpretationof this
a numiberof references to stateless vessels and to vessels concept.
flying flags of convenience, for at the time such vessels The Court concludes by stating that in its view, the
posed .themost iiiimediatethreat to the conservation of the dispute between the Parties, as it has been identified in this
stocksthat it soughtto protect. However,Canadadeniesthat Judgment, had its origin in the amendments made by
its i1itc:ntionwas to restrict the scope of the Act and the
reservationto thesecategoriesof vessels. Canada to its coastal fisheries protection legislation and
regulations and in the pursuit, boarding and seizure of the
The Court observes that the Canadian reservation refers Estcriwhich resulted therefrom. Equally, the Court has no
to "vessels fishing..."that isto say allvessels fishing in the doubt that the said dispute is very largely concerned with
area in question. without exception. It would clearly have these facts. Having regard to the legal characterization
been simple enough for Canada. if this had been its real placed by the Court upon those facts, it concludes that the
intention, to qualify tlie word "vessels"so as to restrict its dispute submitted to it by Spain constitutes a dispute

meaniiig in the context of the reservation. In the opinionof "arising out of' and "concerning" "conservation and
the Court the interpretation proposed by Spain cannot be management measures taken by Canada with respect to
accepted, for it runs contirary to a clear text, which, vessels fishing in the NAFO Regulatory Area" and "the
moreover, appears to express the intention of its author. enforcement of such measures". Itfollows that this dispute
Neither can the Courtshare the conclusionsdrawn by Spain coines within the terms of the reservation contained in
fromtlieparliamentarydebatescitedby it. paragraph 2 (4 of the Canadian declaration of 10 May
1994. The Court consequently has no jurisdiction to

adjudicateupon thepresent dispute. Sepal-ate opii~ionof President Schtvebel urgently required as a result of tlie fishery conservation
crisis in theNorthwestAtlantic.
President Schwebel, in a separate opinion, held tliat,
contrary to Spain's argument, a reservationto a declaration
under the optional clause is not ineffective insofar as it
excludes actions by the declarant State that are illegal under Judge Oda is of the opinion, however, that the sole
internationallaw. A very purpose of a reservationmay be to question to be decided by the Court at tlie present stage of
debar the Court from passing upon legally questionable the case is whether the dispute falls within thepurview of
the clause whereby Canada declared its acceptance of the
actions.
Nor does Canada's reservation embody a self-judging CoW:'sjurisdiction on 10May 1994.
proviso in violation of the authority of the Court to He considers it to be clear, given the basicprinciple that
determineitsjurisdiction. the Court's jurisdictionis based onthe consent of sovereign
State!;, that a declaration to accept tlie conipulsory
Spanish counsel argued that Canada's reservation as jurisdiction of the Court under Article 36. paragraph 2. of
interpreted by Canada is "a nullity" and that it "excludes the Statute. and any reservations attached thereto, must,
nothing, since it can apply to nothing". While not accepting
this argument, President Schwebel concluded that if, because of the declaration's unilateral character, be
arguendo, these contentions of Spain are correct, it follows interpretednot only in a natural way andin context, but rilso
that tlie nullity or ineffectiveness of tlie reservation entailswith particular regard for the intention of tlie declarant
tlie nullity of the declaration as a whole. The Canadian State. Any interpretationof arespondei~tState's declaration
against the intention of that State will contradict theve~y
reservationis an essential elementof the declaration,but for nature of the Court's jurisdiction, becausetlie declaration is
which the declarationwould not have been made.When, as
in this case, theeservationhas been treated by the declarant an instrumentdraftedunilaterally.
as such an essential one, the Court is not free to hold the He further states that tlie fact that Canada made its
reservation invalid or ineffective while treating the declarationcontainingthe reservationset out in paragraph 2
remainder of the declaration to be in force. If the Spanish (4 only a few days prior to enacting tlie amendtnentsto its
fisheries legislation clearly indicates the true~itentionof
argument on the results to be attached to Canada's Canada in respect of those amendments and of any disputc
interpretationof the reservationis accepted,there is no basis
whateverin thiscase for the jurisdictioli of the Court. which mightarise as a result of their implementation.
Judge Oda is at a loss to understand why the Court
Sepui-ateopinion of Judge Oda should have felt it necessary to devote so much time to its
interpretation of the wording of that reservation. After
Judge Oda fully concurs with the operative part of the making an analysis of the developmentof tlielaw of tlie sea,
Judgment.
particularly as it concerns marine living resources, Judge
Judge Oda nonetheless considers it appropriate, lest the Oda notes that there exists no fixed or concrete concept of
real issues in the case should be buried in obscurity,to spell "conservationand managementtnerrslrt-es".
out what issues existed in the dispute between Canada and It is clear to Judge Oda tliat Canada, having reserved
Spain. from the Court's jurisdictionany "disputes arising out of or
He considers that the subject of the "dispute" in the
concerningconservationand managementnieasures", had in
present case relates to the Estai incident. In his view, mind - in a very broad sense and without restriction and
Canada's legislative enactments in 199411995are to be showing great common sense - any dispute which niight
examined, but oidy in the contextof that incident.The Estui arise :Followinthe enactmentand enforcementof legislation
incident occurred in the "Regulatory Area" of the 1979 concerning fishing, whether for the purpose of conservation
NAFO Convention, which area lies beyond the exclusive of stocks or for management of fisheries (allocation of
economic zone where the coastal States exercise fisheries catches), in its offshore areas, whether within its exclusive
jurisdiction. Judge Oda makes it plain that, within the
economiczone or outside it.
framework of the NAFO Convention, the adoption of
measures of conservation and management of fishery
resources in the RegulatoryArea is the ~esponsibilityof the Judge Oda points out that no diplomatic negotiations
NAFO Fisheries Commission, but not of any particular
coastal State. He has stressedthat the whole chain of events took :placebetween Spain and Canada with regard to the
regarding the Estai incident unfolded irrespective of the enactmentin 1994and 1995of Canada'snational legislation
NAFO Convention. or its amendment, and that there was no further diplonlatic
negotiation between the two countries over the Estrii
Judge Oda thus suggests that the only issue in dispute incident.He notes thatafterthe conclusionon 20 April 1995
was whether Canada violated the rule of international law of the Agreement between the EC and Canada, tlie dispute
by clainiing and exercising fisheriesjurisdiction on the high
seas, or whether Canada was justified, irrespective of the arising out of the Estui incident was practically solved.
NAFO Convention,in exercising fisheriesjurisdiction in an Judge Oda suggests that the dispute could have bee11solved
if negotiationsbetween Spainand Canadahad been held.
area of the high seas on the ground of its honestly held
belief that thh conservation of certain fish stocks was Judge Oda refrains from entering into the debatable and managementmeasures", the questioil whether the Court
issue of whether a legal dispute may be submitted was entitled to exercise itsjurisdictioii must depend on the
uiiilaterally to the Court oiily after diplomatic negotiations subject matter whicli had beell excluded and not on the
betwcen the disputing par tic:^have becn exhausted or at applicable laws or on the rules which were saidto have been
least initiated. He submits,however, that it could have been violated.
questioned, even at this jurisdictional stage - separately
from the issue of whether the Court has jurisdiction to Finally, Judge Koroma eiilphasized that this Judgment
should not be viewed as an abdication of tlie Court'sjudicial
entertain Spain's Application - whether Spain's function to pronounce on the validity of a declarationand its
Application of 28 March 1995in the present case was really reseivation, but rather should be seen as a reaffirniation of
~~/riiissiblteo the Coui3at all. the principle that the character of a declaration makes it
necessary for the Court to determine tlie scope and content
Separate opinioil of Judge Kororna of the consent of a declarant State. The Court reserves its

In his separate opinion, Judge Koroina emphasized the inherentright to decide that a reseivation has been invoked
absolute and unfettered freedom of a State to pal-ticipateor in bad faith, andto reject the view of the State in question.

not to participate in the optional clause system. As a Separate opinion of Judge Kooiji~iai~s
corollary, he confirmed that a State is entitled tottachto its
declara.tion made under the optional clause a I-eservation JudgeKooijmansconcurs with the Coui-t'sfindingthat it
excluding or limiting the Court's jurisdiction to apply the has no jurisdiction to entertain the dispute submitted by
principles and rules of international law which the Court Spain. He cast his vote, however, with a heavy heart since
would have applied. had .the subject matter not been
excluded fromthejurisdiction ofthe Court. the Court's Judgment bears testimony to the inherent
weakness of the optional clause system. The making of
In Judge Koroma's view, flowing from first principles, reservationsby a Stateto its declarationof acceptance of the
once it is established that aispute falls within tb.ecategory compulsory jurisdiction of the Court under Article 36,
of the subject matter defined or excluded in a reservation, paragraph 2 of the Statute has never been coiitroversial
then that dispute is precluded from the jurisdici:ion of the (with the exceptionof reservations which are contraryto the
Court, whatever the scope of the rules w'hich have Statute itself). The Court, therefore, has to apply the law as

purportedly been violated. He agreed with the Court's it stands.
finding that, once it had determined that the measures of In the present case Canada has submitted a new
coliselvation and management referred to in the I-eservation declaration in whicli it added a reservation in order to
contained in the Canadian declaration were measures of a prevent the Court from scrutinizing the legality of an action
kind which could be categorized as conservation and it intended to undertake. According to present internatiolial
managementof the resourcesof the sea, and wereconsistent
with customary norms and well-established practice, then law Canada was fully entitled to do so. Nevertheless, it
seems to be a legitimate question how far a State can go in
the Court was bound to decline to found jurisdic:iionon the accepting the compulsoryjurisdiction of tlie Court, thereby
basis of tlieriiicipleswhich have been invoked. expressing its conviction that adjudicatioli is the most
Judge Koroma pointed out that it is in this sense that he appropriatemethod to settle a wide range of conceivable but
understands the statement in the Judgment that "the not imminent legal disputes, at the same time exempting
lawful~iessof the acts whicli a reservation to a declaration froin the Court's jurisdiction all anticipated and therefore

seeks to exclude from tlie jurisdiction of the Cc,urthas no imminent dispute. According to Judge Kooijmans it would
relevance for the iiiterpretation of the terms of that not have been beyond the Court's mandate to draw attention
reservation". to the risks to which the optional clause systenl is exposed
In other words,the Court's jurisdiction to adjudicate in a since this system is an integral and essential elementof the
dispute derives fiom the Statuteand the consentof a Stateas Statute of which the Court is the guardian. In this context
expressed in its declaration aridnot fromthe applicable law. Judge Kooijmans draws attention to the fact that
compulsory adjudicatioii is niore than a matter of procedure
In the judge's view, what was determinative in this
matter was whether Canada had made a declaration under but that it also touches upon the substanceof tlie law. States
tlie optional clause, whether that declaration excluded who know that they can be brought to court will inevitably
disputr:~ arising out of or concerning conservation and be more inclined to see tlie law in terms ofhow they think a
tnaliagelnent measures and whether the acts complained of court wouldapply it.

fall within the category of the excluded acts. The Court in
respon.ding affirmatively to those questions, not only Dissenting opii1ioil of Mce-President Weeranzrriitly
reached the right decision but affirmed that its compulsory Vice-President Weeramantly, in his dissenting opinion,
jurisdiction is based 011 the previous consent o:Fthe State
concerned and subjectto the limitsof that consent. observes that there is no question of the invalidity of tlie
Canadian reservation. The reservation is a valid one which
Ac~:ordingly,and flowing from the above principles, Canada was well entitled to make. The Court's task is to
since Canada had excluded fiom the jurisdiction of the interpretthis valid reservation. Wouldthis reseivation cover
Court "disputes arising out of or concerning conservation certain actions that commenced as conservation measures,but were also alleged to involve findamental breaches of view, failed to settle filly the problem of overfishing, thus
international law, including violation of thefreedom of the jeopardizing fisheries resources for future generations.
high seas, the unilateral use of force by Canada, and Canada has frequently expressed its dissatisfaction and
infringementsof Spain's sovereigntyoverits vesselsat sea? invok:edthe "emergency", or "state of necessity", which it is

Vice-President Weerainantry's viewis that it is a matter currentlyundergoing in this regard.
for the Court's discretion as to whether such matters fall The Court had to rule on its jurisdiction by examining
within the general part of the declaration (which gives the the meaning and scope of Canada's reservation, but it was
Court jurisdiction over all disputes arising after the not entitled to ignore the fact that, if it accepted such a
declaration), or under the reservation relating to reservation,itwas leavingthe author of that reservationfree
conservationmeasures.Where violations of basic principles
to combat foreign overfishing by unilaterally giving itself
of international law, extending even to violation of Charter powers over the Itighseas for as long as no settlement had
principles are alleged,Vice-PresidentWeeramantry is of the been reached between itself and the States concerned. This
view that the dispute falls within the general referral rather account of the background to the case was necessary,
than the particular exception. It seemsunreasonable that the inasmuch as, where a reservation has been formulated
mere fact that such acts originated in conservation measures ratione inateriae, it cannot prime facie be understood
should preserve them from Court scrutiny even when they without some minimal reference to the substantive issues

have extended so far beyond the reach of the reservations involved.
clause as to enter the area of violations of basic principles of The case would have been perfectly simpleif the duty of
international law. the Court had merely been to ascertain the meaning of the
Optional clause jurisdiction represents a haven of expression "conservation and management measures"
legality within the international system and, while States contained in the reservation, and to declare that "the
have unfettered autonomy to decide whether to enter the enforcement of those measures" against the Spanish fishing

system, once they do so they are bound by its rules and by vessel Estai was precisely covered by the ternls of that
the basic principles of international law which prevail reservation,thus preventing the Court from entertainingany
therein. It is not possible to contract out of the applicability claim in this regard. The emphasis has to be placed on
of the latter, oncea State has opted to enter the system. another far more important term of the reservation. that
The Spanish allegations are as yet unproved, and a which places Canada's action,in geographicalterms, "in the
NAFO Regulatory Area", that is to say otrtsidethe 200-ii~ile
preliminary objectiontojurisdiction can succeed only if the
Court would still lack jurisdiction, even assuming that all liiizit.And indeed the Estai was boarded some 245miles off
the alleged circumstances will eveiltually be proved. In the Canadiancoast.
Vice-President Weeramantry's view, the Court cannot so The purpose of the reservation is to signal urbi et orbi
hold, as someof the circumstancesalleged would, if proved, that Canada claims special jurisdiction over the high seas.
give jurisdiction to the Court under the general part of the The Court cannot interpret or accept this reservation in the
declaration. The objection raised by Canada is therefore not same way as it would interpret or accept an ordinary

of an exclusivelypreliminarycharacter. resenration, since, without any need for a consideration of
Vice-President Weeramantry also examines the the merits, its terms prima facie disclose a violation of a
historical origins of the optional clause with a view to basic principle of international law. This is an issue which
stressingthe difficulty with which the limitedjurisdiction of the Court cannot simply ignore by restricting itself to an
the Court was achieved. The expectation at the time of the external and superficial interpretation of the reservation. It
cannot be right for the Court to content itself in this case
creation of thisjurisdictioil was that it would develop with
use. An unduly narrow interpretation of the clause, when with a purely formal view of the reservation, disregarding
other interpretations are reasonably available within the itsmaterial content - a content which does not require
framework of the declaration considered as a whole, would investigation involving an examination of the merits, since
contractrather than developthisjurisdiction. it is abundantly clear that the reservation affects a
traditionally establishedright. This is the real flavour of this
fascinatingcase.
Dissenting opiilion of Jz4dgeBedjaoui
The Court calllot content itself with declaring that the
boarding on the high seas of a foreign fishingvessel simply
I. General Iiztroductioii constitutes enforcement of conservation and management
Canada's twice formulatedreservations would appear to measwes taken by Canada, and thus hold that that incident
is covered by a reservation entirely depriving it of
reflect its hesitation, or reluctance, to submit to the sanctionjurisdiction, for this would be to utilize the screen of
of the International Court issues which it regards as vital,
and in relation to which it considers the applicable law to "conservation and managementmeasures", interpreted inan
be, in the words of the Canadian Foreign Minister, artificial manner, without any regard for what such
"inadequate, non-existent or irrelevant". The point was that measilres involve in terms of their violation of a well-
Canada was not entirely satisfied with the Montego Bay establishedprinciple of international law.
It follows that the only proper attitude is to interpretand
Convention of 10 December 1982 on the Law of the Sea,
which for this reason it has not ratified and which, in its assess the said "conservation andmanageinent measures" byreference to internationallaw. It is inthis corpus of the law inalienable legal interest in seeking and obtaining a i-uling
of nations that a definitionof !suchmeasures must be sought. on the specific dispute whose subject inatter it had clearly
And two options, and two only, accordingly present defined.
themselves to the Court at this stage of the proceedings: Spain clearly indicated the precise matter on which it
either, at the very least, to state that it cannotreadily find was bringing Canada before the Court. In both its written
any well-established international definition of such
and its oral pleadings, it consistentlycomplained of "a very
measures applicable to the case before it, and that it is serious infringement of a right deriving from its sovereign
accordingly obliged to touch on the merits of the case by status, namely exclusivejurisdiction over vessels flying its
going fwther in its examination of the facts and of their flag on the high seas".
implications in terms of the internationalpractice of States,
and in consequence to declare that Canada's otjection to It was an altogether difirrent subject matter that
jurisdiction is not of an excTusivelypreliminaiy character Canada - notwithstanding its status as respondei~tStnte -
raised against Spain. It invoked issues of fishing and of the
within .themeaning of Article 79, paragraph 7, of'the Rules conservation and management of fisheries resources within
of Court; or, on the other hand, to declare that it does have the NAFO Regulatory Area, and consequently contended
available to it an undispute:d international defitlitioil of that this was the true subject of the dispute, which was
conservation and management measures, which, applied to excluded froin the jurisdiction of the Couit by virtue of
this case, obliges it tointerprct the Canadian reservationas
invalid and not opposable to these proceedings insofar as it reservation (d) inserted by Canada in its new declaration
notified on 10 May 1994 (two days before the adoption of
purports to cover acts occurring on the high seas, and Bill C-29 atnendingthe CoastalFisheriesProtectionAct).
accordingly not capable of constituting a bar to the Court's There is of course a connection between the subject
jurisdiction to proceed to an examinationof the merits.
Judge Bedjaoui has not dealt with all the po:nts which matter of the dispute, as defined by the Applicant for the
appear to him disputable in the Judgment - it1particular purposes of the proceedings which it instituted, but
regrettablycannot pursue, and the subject matter alleged by
the theoretical and practical implications of the methods of the Respondentto be the true one, now settled and emptied
interpretation etnployed therein, or at least the manner in of substance. However, that connection in no way justified
which -theJudgment formulates a number of these points the substitution by the Court of the second subject for the
(see in particular paragraphs 46 to 54 of the Judgment) - firstone as defined by the Applicant.
but has restricted himself to raising three important
questians on which, to his great regret, he finds himself The Court cannot in any sense modify "the decor" or
change the subject of the dispute. For, if it did so, it would
obliged to express his disagreement with the majclrityof the be rendering judgment in a case altogether different from
Court: that submitted to it by the Applicant. TheCo~wt'srole isto
- the subjectmatter of the dispute;
- the validity of the Canadianresewation; give an appropriate legal chnmcterizatiorzto tltose clain~s
of the applicant Stclte which proper(^^ conze within the
- the definition of coilservatioil and management ji-ameworkof'tltesubject inatter of the dispute as thntSttrte
measures. Ansde$ned it it1its Application.This does not mean that the
Court has the power to alter the subject matter put before it.
Still less canthe respondent Statepropose a different subject
11. Thesubject nzatter of the dispute
Wh.atis nnique about the present case and at:the satnc matter to the Court.That would be to heara djferetzt case.
time gives it itsgreat interest :Fromthe legalpoint ofview, is Thus, while Spain proclain~sits sovereignty on the high
seas over its vessels, Canada speaks of conservation and
the per:sistentdisagreement between the applicant State and rnanageinent measures. While Spain invokes a "conflict of
the Respondent with regard to the actual subject matter of jurisdiction" on the high seas, Canada opposes to it a
the dispute - a disagreement now extended by another,just "conflict over fisheries conservation and management". In
as far-reaching, between the majority of the Court and the
minority on the same point. This is a situation rarely brief,Spcriritalks of Stcrteso~!ereigizty, anndnof.fishei.ies
encountered in the Court's jurisprudence. coizse~vationaridnzanclgenzerzt.
In the present case, the Court has based itself on a
It is of course the Applicant who has the ini1:iativeand jwisprudcnce which is eithernot entirelyrelevant or appears
who de:fines - at its own procedural risk - the subject of to have been interpretedincorrectly.
the dispute which it wishes to bring beforethe Court. In this
regard it enjoys a clear proc~:duralright, deriving froin its
status tu Applicant, to seek and to obtain from the Court a 111.Thevalidity of the Carradianreservation

ruling on the subjectof the dispute which it has submittedto It would of course be absurd to cast doubt, in any
it and otzthat nlone, to the exclusion of all others (subject. degree, on the sovereign power of a State to nlaintain or
of course, to any incidental proceeding). Spain, as a amend, whether by restricting or by extending it, a
sowi-eigrz State and as npplicnnt State, en-joyed the declaration of acceptance of the Court's jurisdiction, or to
undisputed right to bring before the Court - at its own withdraw it wheneverit wishes - alwayssubject,of course,
clear pirocedwal risk -. any aspect of the dispute which it
to compliance with the procedure (and in particular any
conside:red it might legitimately submit, and it had an prior notice) established by that State itself in itsdeclaration. Doctrine and jurisprudence are unanimous on According to a maxim of French civil law, "you carznot
this point. valitlly both give arzdtcrkeawu.v".A declarant State cannot
However, a State's freedom to attach reservations or take away with one hand what it has given with the other. It
cannot do homage to international justice by submitting
conditionsto its declaration must be exercisedin conformity
with the Statute and Rules of Court, with the Charter of the itse1:fto the latter's verdictin respect of those acts where it
United Nations, and more generally with international law considers that it has behaved correctly, while shunning that
and with what this judge would venture to call "l'ordre samejustice in the case of those acts whose legality it fears
public interizational". may be questionable. It is not possible for a declarant State
to remodel the philosophy of the clause "system" in this
Within this optional clause "system", as currently way,, still less to bend that "system" to suit its own
structured within the framework of the "iizterizatioi~allegal contradictory requirements, or to mix two incolllpatible
corpt4s" - that is to stay, neither total chaos nor an absurd
"bric-a-brac" (Jean Combacau) - and which we call aims.
"interizational law", a State's freedom is immense, but
cannot be regarded as limitless. Any person is free to join a IV.The de$nition of "conseivation and mrrnagemelrt
club or not to do so, but if they consent to join, then they measz4r.e~"

must abideby the rules governingthe club's activities. The question of the "applicable law" for purposes of
A declarant State has obligations vis-ci-vis the clat4se defining the expression "conservation and inailageinent
"system" and itsparticipants, current orpotential, and also mea:;ures"has taken ongreat importanceinthis case.
to the party to whoin that clause is ultinzatelvaddressed,
itamely the International Cowl-t.It is not entitled to cause Judge Bedjaoui is all the more convinced that this
expression cannot be interpreted otherwise than within the
that "system" to implode,sinceit also now owes it duties - framework of international law. And since, in these
the counterpart of the rights which it derives from it. The circumstances, the definition and content of that expression
possibility of withdrawing from the system remains fully can be fully ascertained only at the merits stage, it follows
open to it, but what is notacceptable is that it should distort that it is only at that point that the Court would be in a
or pervert it, or compromiseits existence or operation while
remainingwithin it. position to determine whether the Canadian legislation and
the resultant actions taken against Spanish vessels come
In the present case, I cannot but feel a certain sense of within the international definition of such measures and
disquiet. These were events which occurred over a specific their enforcement, and hence are excluded from the
period of two days, 10 and 12 May 1994, during which jurisdiction of the Court by virtue of reservation (4. Iiz
almost simultaneously Canada formulated its reservation, other words, this is a case where Article 79,pwugraph 7,
thus precluding any review by the Court, lodged a Bill with
Parliament and had it adopted. There is every reason to should ltave beer1applied, with the result that e.waminatioir
of the dej7iritioiland precise coirteiltof "coiuervation aird
think that, in so acting, Canada wished to protect itself in mailngeiizentmeasures" would have been postponed to the
advance against anyjudicial action. so as to be completely merits stage, these being matters not Amlingan exclusivelv
free to follow a particular line of conduct, over whose prelirilinaiyclzamcfer.
legalityit had certaindoubts. Canada's reservation (4 refers to "coiwen~ationand
This is izotwhat one might have expected of a cotmtiv
managemeilt measrrres", taken or enforced by it against
like Caitada,whichfor over 70years has set an exanple of fishing vessels within the "NAFO Regulatory Area". The
its attachment to the Court's jurisdictioil and of its respect Court was therefore bound to interpret that expression in
for iilternational law. Nor is it a welcome situatioirfor orderto identifythe scope of the reservation.
Ccinada 's traditioncil NAFO partners, or for the Nor does the Judgment take sufficient account of the
international commt4nizy, or for the optioital clause
"system", or.for the Courtitself: new approach enlbodied in the interrtatiortulconcept of
"conservation and management nleasures", an approach
The latter has,most regrettably,failed to recognize that already evident at the First United Nations Confereilce on
recourse to a reservation, in circumstances where a State the Law of the Sea, which resulted in the "Convention on
wishes to undertake speczj2cacts of dollbtful international Fishing and Conservation of the Living Resources of the
legality, risks having a seriozcslydantagiitg effect oiz the High Seas", then formalized in the Montego Bay
credibilityof the optionalclause "systein ".
Convention and, indeed, already described in 1974 in the
If, for reasons of domestic or intemational policy, which Coui-t'sJudgmentin theFisheries case.
may moreover be perfectly legitimate, a declarant State It is perfectly clear that this new approach could only
finds itself embarrassed by the terms of its declaration, it be-- and has indeed been - an intemational one;
should provisionally withdraw that declaration for the othelwise the chaos created by overfishing would have been
period required by the politiccil action which it is replaced by a different form of chaos - that produced by
contemplating,rather thanattachi~rgtoit - I am temptedto
each State taking, as and wherever it thought fit, whatever
say, eitcurnberiizgand tinderminirlg it - a reseivation conservation and management measures it wished. To limit
intended to cover a pulpose ~d~ichinigltt very well be this progression to a simple harmonization of the technical
regardedas uirlawful. aspects of fishing, as theudgmenthas done, is to ignore the
entire development in the law which, both now andover the last two or three decades, hasbeen taking place in the field the very same that underliesthe Canadian legislation andits
of conservationand management measures, and ~r~hicghives implementing rules - without any regard for respect of the
j~ldicialexpression to aproj'ollndneed on thepm.t of States principle of freedom of the high seas. On the basis of its

for clnr1j7ccttioiz,11m-nzowi::atioannd cooperlztion. Such reselvation as tlius interpreted by the Judgment, Canada is
measures cannot therefore siinply be reduced to any act protectedagainst the sanctionof reviewby the Coui-t.But in
taken by a State with regard to its choice of c.onservation reality conservation and ~nanagement measures can be
techniques, whilst ignoringithefact that such measuresnow assessed only by reference to international law.If this is
have to be inserted into an international network of rights so - and it cannot be otheiwise - then the Court was
and obligations which the States have created for bound to declare itself competent at this stage and to

themselves. Here, ecor~oriticlogic and Ieglrllogic have to undertake anexaminationof tliemerits in orderto determine
combiir~e - arid indeed do so in all i~zter~~~tioizal whether the nleasures taken against the Spanish vessels
ittstr~rmertts- in order to crvoirl the cham both of were in fact conservation and management nleasures (see
uncontrolled o17ei;fishirlgrrild oj' illeg(11 regulatioil. Al-ticle79, paragraph7, of the Rules of Court).
Compatibility with international law isan integral part of
the intemational definitionof conservation and management
Disserztirzgopinion of'Judge Rnrzjevcr
measures;it is "blliltirl".It is not a inatterof adjudicatingon In a dissenting opinion appendedto the Judgment, Judge
the meritsor ding in any wayon responsibility.It is simply
a question of stating tliat, on a true interpretation of the Ranjeva expressedthe wish that this Judgtnent should not
expre!ssion"conservation arid management mei~sures",the be interpreted as sounding the death-knell of the optional
reservation cannotact as a bartojurisdiction. clause system under Article 36. paragraph 2, of the Statute
of the International Courtof Justice. He fears a desertion
The notioilof "conselvation and managementineasures" from the Courtas a forunl for the settlement of disputes, in
cannot be confined,contrary towhat the Judgmerntstates,to the absence of guarantees to ensure the integrity of the
simple "factual" or "technical" matters, but has to be taken
to refer to those types of measure which the "r~euljegal subject matterof the disputeas prescnted in the Application
order of the sea" has beell gradually regulating, with the submitted bythe applicant State. In Judge Ranjeva'sview it
result that such measures now constitutertrlobjective legal was not appropriate for the Court to seek to define the
subject matter of the dispute at the prcli~ninary stage.
category which cannot be other than part of knternational Whether the subject matterwas iliteipreted broadly as the
law. Applicant wished, or narrowly, the question, at this
Paragraph 70 of the Judgment sets out to give the
definition to be found in "irzterrzcrtiortrl " of the concept incidental stage of the proceedings, was whether the
of "conservation and management measures'", since it preliminary dispute on questions of jurisdiction and
admissibility calne within the tenns of the reservation
begins;with the words: "According to international law, ...". formulated by Canada.
But, strangely, the paragraph ends with a paragraph in The case-law cited inthc Judgment is not relevant to
which the Judgment removes froin that definition -
notwithstanding that it is claimedto be the defil~itionunder justify a restatementof the subjectmatterof the disputeas it
"itzterilationalI~MJ -" all r1:ferencesto the legrrlelements was presented in the Application. In those decisions the
(such as the status or identity of the author ofthe measures Court restated the terms of tlie dispute after canying out a
detailedexamination,in light of the evidence available toit,
or the maritime area affected by them), retaining only the of those rnatters constantly and consistentlyclaimed by the
teckrlical and scietltific aspects. How could ii!terncrtiortaI Applicant. Moreover, in the absencc of claims by the
law p~sihly supply such crrtiizconzpletedcfizition,~vhick, Respondent on the merits, or of any counter-claim, the
taken Iiterrtlly,woltld appear to a~rthorizetlte .violatiotlof
the most $rmly established principle of this same Court is necessarily bound bythe tenns of the claim as
internrttiortallaw, ilmneblfieedonz of tlzeIziglseas? Judge fom~ulatedin the Application.
Benjcrouicarlrtotbepei*suadc?tdhathe is touclzingheretrpon With regard to the interpretation of the Canadian
reservation contained in subparagraph 2 (d) of Canada's
arzissue going to the merit>:,that oj'legnlit~~I.rt rertlio~he declarationof 10May 1994,Judge Ranjeva agreeswith the
has stopped short of'doirtgso, conj?izingIzimself'topoirztirlg
out tlztzt,lf'tlzeJzldgrrzeilits to be,followed,therlii;teiaationc~Iority of the Members of the Court on the importanceof
I(LMi.,1111sbte bent on n course of self-destruction in ascertaiiliiigthe intention of the author of thc reservation.
szlpp&ing a dejhition w1zic.hallon)s it to be so rlirectly Rut, in his view. a reservation to jurisdiction, while
violatt?d How is it pos.sible so ,flcrgr(znt(vto tlrrrl unilateral in origin,is international in its effects, since it
becomespart of the network made upof all the declarations
interno!ltionallw agrrirzstitsc11f? under Article 36, paragraph 2, of the Statute.It follows that,
It accordingly follows that the Canadiar. ineasures
relatingto tlie highseas cannotbe interpretedon thebasis of in filing its unilateral application, tlie Applicant acceptsall
Canada's own internal legal order - for this in effect is the conditions laid down by the author of the reservation,
what the Judgment has done - since the definition of and a contractuallink arises between the two parties to the
litigation.It is therefore difficultto see how the reservation
conservation and management measures which the can bc interpreted without recourso to thc rules, principles
Judgment claims to draw from international law has and methods of inteiprctationof international agreements,
ultimatelybeen reducedto a standard technicaldl:fiaition --
and outside the fian~cwork of the Law of the SeaConvention of 1982, which constitutes the lowest or narrower meaning in cominon parlance or in some other

denominatorcommonto the parties. Moreover,retracingthe discipline, but for the Court "the natural and ordinary"
historicalbackgroundto Article 1of tlie 1995Agreementon meaning of the term is that attributed to it in international
Straddling Stocks, one of the two iilstrumentsrelevant to a law. The Canadian reservation would be consistent with the
definitionof conservationand managementmeasures,Judge international law of the sea if the expression "conservation
Ranjeva recalls that it was on the initiative of Canada that and management measures". obtaining in the text of the
that Agreement included a reference to the definitions reservation, were to be understood in the sense accepted in

contained in the Montego Bay Conventioil, with a view,to recent multilateral agreements directly related to the subject
defining more clearly what was meant by conservation and coveredby the reservation. In those agreements,the concept
managementmeasures. In the opinionof this Memberof the "conservation and management measures" ischaracterized
Court, there is no contrary intemational piactice of States or by referencenot merelyto factual and scientificcriteria,.but
of international organizations which would contradict his also to legal ones. , ,
analysis and confirm thedefinitiongivenby the Court.
I11the viewof Judge Vereshchetin,"due regard" givento
In Judge Ranjeva's view, Canada's objections werenot the tieclarant's intention,in the'circumstances of the case,
of an exclusivelypreliminarycharacter. has not revealed with certainty,':theevident intention of the
declarant" at the time material .for the interpretation of the
reservation. In any event,' this intention cannot be
controlling and conclusive .for the outcome of the
Judge Vereshchetinfound himself unable to concur with
interpretationby the Court.
the arguments and findings in the Judgment relating to two Judge Vereshchetin considers that the scope (rcrtione
principalpoints: n~aterilieand I-crtioieersonae) of the Canadianreservation,
(a) the subjectmatter of the dispute between the Parties, as well as its implications for the Court'surisdiction in this
and case.,could not be established '!ith certainty by the Court.

(b) the effectsof the Canadianreservationon the Court's Therefore, the correct course of action for the Court would
jurisdiction in this case. have been to find that in the circumstances of the case the
As to the first point of his disagreement, Judge objections of Canada did not have an exclusively
Vereshchetin takes the view that the scope of the dispute preliminarycharacter.
between the Parties is much broader than the pursuit and

arrest of theEstai and the consequencesthereof. Quite apart Dissenting opirtion ofJudge Torres Benzdrdez
from this proximate cause of the dispute, it would appear
that whatunderlies it are differentperceptionsby the Parties In his dissenting opinion Judge Toires Bemhrdez
of the rights and obligations which a coastal State may or concludes that the Court has full jurisdiction to adjudicate
may not have in a certain area of the high seas; or, more on the dispute brought before it by the Application filed by
generally, different perceptions of the relationship between Spainon 28 March 1995.
He has reachedthis conclusionafter a thoroughstudy of
the exigencies of the law of the sea, on the one hand, and
environmental law on the other. The Court had no good - the subject matter of the dispute (where he was in total
reason for redefining and narrowing the subject matter of disagreement with the definition adopted by a majority
the disputepresentedby the Applicant. of the Court, a definitionwhich in his view accords with
With regard to the effects of the Canadian reservation, neither the applicable law nor with the relevant
jurisprudence of the Court, or with that of the Permanent
Judge Vereshchetin considers that, while a State is
absolutely free to join or not to join the optional clause Court);
system, its fieedom to make reservations and conditions to - the optional clause system in general, including the role
the declaration deposited under Article 36, paragraph 2, of within that system of the principles of good faith and
the Statute is not absolute. For example, it is uncontested mutual confidence;
that tlie Court cannot give effect to a condition imposing
- the question of the admissibility or opposability as
certain terms on the Court's procedurewhich run counter to against Spain, in the circumstances of the case, of the
the latter's Statute or Rules. Generally, reservations and reservation contained in subparagraph 2 ((0 of Canada's
conditions must not underminethe very raison dYCtre of the declaration(in relationto which. inthejudge's view, the
optional clause system. The Court as "an organ and Court has declined to exercise its right of review over
guardian" of international law may not accord to a abz4seof the optionalclausesystem);
document the legal effect soughtby tlie State from which it
- and the interpretationof Canada's declarationof 10May
emanates, without having regard to the compatibility of the 1994, including the reservation contained in
said document with the basicrequirements of international subparagraph 2 (4. In this regard Judge Torres
law. Bemardez expresses his conviction that the subject of
On tlie other hand, the Court cannot impute bad faith to
a State. Therefore, it should seek to interpret declarations the interpretation which the Court is called upon to
undertake is Canada's declaration itself, including the
and reservationsthereto as consisteiltwith intemational law. reservation in subparagraph (4, arid not, as tlie
A tern1of a declarationor of a reservationmay have a wider Judgmentclaims, thepolitical or other reasonswhich led Canada to make its unilateral acceptance, on 10 May interpretationlaid down by international law, of the consent
1994, of the compulsory jurisdiction of the Court objectivelydemonstratedin declarations at the tiine of their
tog:ether with the said reservation; Judge Torres deposit with the Secretary-General of the United Nations.
Be:rnBrdezrejects the extreme subjectivity displayed by Finally,the no less fundamental requireiiientof internatioiial
the majority in the Judgment in their approach to procedurethat, in the interestof the principle of tlieequality

interpretation, an approa.ch which he considers to be of the parties, the sovereign right of the applicant State to
contrary to current international law and tothe principle define the subject matter of tlie dispute which it is
.'of:legalcertaintyin relationsbetweendeclara~itStates. . submittingto the Court must bejust as fullyrespected as the
The basic reasoiis on which his dissenting opinion-are sovereignright of the respondentState to seekto opposetlie
founded are three. First, .the fundamental role of the Court's jurisdiction by presenting preliininary or other
objections,or by.filinga counter-claimof its own.
principle of good faith, both in the modus oyeri~i~doif the
optional clause system an.d in the interpretation and Each of these fundamentalreasons is sufficient in itself
application by the Court of declarations made by States to make it impossible for Judge Torres Bernirdez to
under Article 36, paragraph 2, of its Statute. Se~:ondly,the subscribe to a judgment, the effect of which will, he fears,
equally fundamental distinction which must always be be particularly negative, even beyond tliepresent case, for
drawn between. onthe one. hand, theprinciple of consentby the developmentof the optionalclause systemas a iiieansof

the Sta.tesconcerned to thejurisdiction of the Court and, on acceptance by States of the compulsoryjurisdiction of the
the other, an interpretation;in accordance with the rules of Court inaccordancewith Article 36of the Court's Statute.