General List No. 96
INTERNATIONAL COURT OF JUSTICE
APPLICATION
INSTITUTING PROCEEDINGS
filed in the Registry of the Court
on 28 March 1995
FISHERIES JURISDICTION
(SPAIN v. CANADA)
__________
I. THE AMBASSADOR OF SPAIN TO
THE NETHERLANDS TO THE REGISTRAR OF
THE INTERNATIONAL COURT OF JUSTICE
[Translation]
The Hague, 28 March 1995.
I have been instructed by the Minister for Foreign Affairs of the Kingdom of Spain to inform
you, in accordance with Article 40, paragraph 2, of the Rules of Court, that
Mr. José Antonio Pastor Ridruejo, Director of the International Legal Service of the Ministry
of Foreign Affairs, has been appointed Agent in the proceedings brought before the Court by
Spain against Canada, by means of a written Application under Article 40, paragraph 1, of the
Statute and Article 38, paragraph 1, of the Rules of Court.
I certify that the signature affixed to the Application is that of
Mr. José Antonio Pastor Ridruejo.
In conformity with Article 38, paragraph 2, of the Rules, I would also inform you that the
address for service of the Agent is the Spanish Embassy in The Hague.
(Signed) Rafael PASTOR RIDRUEJO,
Ambassador of Spain to the Netherlands.
__________ II. APPLICATION
INSTITUTING PROCEEDINGS
[Translation]
In conformity with Article 40, paragraph 1, of the Statute of the International Court of Justice
and Article 38, paragraphs 1, 2 and 3, of its Rules, and following the instructions of the
Minister for Foreign Affairs, I hereby, in my capacity as Agent of the Kingdom of Spain, file
an Application instituting proceedings against Canada.
1. THE FACTS
A. On 12 May 1994, Canada passed an Act to amend the Coastal Fisheries Protection Act.
(a) In conformity with the Act as amended, an attempt was made to impose on all persons on
board foreign ships a broad prohibition on fishing, in the NAFO Regulatory Area — that is,
on the high seas, outside Canada's exclusive economic zone — for stocks straddling these
zones, contrary to the protection measures taken in the framework of the Convention on
Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978. This Act gives the
Canadian authorities discretion as regards the task of adopting the implementing regulations,
together with the list of fish stocks for protection, the relevant protection measures and the
categories of foreign ships to which these measures apply, and of stipulating the powers
which may be used in order to ensure they are respected. The Act itself authorizes Canadian
officials to board, examine and inspect foreign ships suspected of violation.
In addition, the Act concerned expressly permits (Art. 8) the use of force
against foreign fishing boats in the zones that Article 2.1 unambiguously terms
the "high seas". This contingency is provided for again in paragraph 25 (4) of
the Criminal Code, as amended by the same Act, permitting "the peace
officer", in specific conditions, to use "force, which is either likely to cause
death [of the person to be arrested] or serious bodily harm, or used with the
intention of causing such" [translation by the Registry], in cases such as those
concerning foreign fishing boats engaging in activities on the high seas in
waters covered by the Canadian legislation.
(b) On 25 May 1994, the Canadian Government adopted the corresponding
implementing regulations, which, in particular, stipulate the use of force by
fishery protection officers against the foreign fishing boats covered by those
regulations — in particular, ships without a flag or flying a flag of
convenience — which infringe their mandates in the zone of the high seas
within the scope of those regulations.
On 3 March 1995, the Canadian Government adopted new implementing regulations
expressly permitting such conduct as regards Spanish and Portuguese ships on the high seas.B. Following the measures taken on the basis of that legislation, on 9 March 1995, at
4.52 p.m. (Ottawa time), the boat Estai, flying the Spanish flag and with a Spanish crew, was
stopped and inspected on the high seas, in the area of the Grand Banks, at co-ordinates 48°
03' N, 46° 26' W, some 245 miles off the coast, by the Canadian patrol boat Cape Roger,
assisted by the patrol boat Leonard J. Cowley and the coastguard vessel Sir Wilfred Grenfell,
also Canadian, after successive attempts at boarding by gunboats manned by individuals
armed with automatic weapons, and at intimidation with warning shots fired from a 50-mm
gun by the patrol boat Leonard J. Cowley, after, according to the Canadian Note of
10 March 1995, "the necessary authorizations" had been obtained.
The boat and its crew, whose security and integrity had been seriously endangered as a result
of the coercive action by the Canadian flotilla, were forcibly escorted away and held
incommunicado, in the Canadian port of St. John's, Newfoundland, where the captain of the
boat was imprisoned and subjected to criminal proceedings for having engaged in a fishing
activity on the high seas outside the Canadian exclusive economic zone, and for resisting
authority; the boat's papers and part of the catch on board were confiscated. In order to obtain
the captain's release and the freedom to use the boat, the owner, while asserting that he did not
recognize Canadian jurisdiction, paid of 8,000 and 500,000 Canadian dollars respectively, set
by a judge of the Provincial Court of Newfoundland (Terre-Neuve) Judicial Centre of
St. John's. A new hearing is scheduled for 20 April next.
Incidents such as that involving the Estai may recur, in as much as the Canadian legislation
provides a basis for a continuing internationally wrongful act. As is well known, the Canadian
authorities have publicly expressed their intention to continue to apply the aforementioned
legislation in every respect, in high seas zones against other Spanish ships present in the same
sector.
2. THE LAW
A. The Kingdom of Spain considers that, quite apart from the violation of the provisions of
the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978,
in particular Articles XI (7), XII, XVII and XVIII, the acts by Canada constitute a serious and
flagrant violation of at least the following international principles and norms, which Spain
invokes in support of its Application:
(a) The principle of general international law which proclaims the exclusive
jurisdiction of the flag State over ships on the high seas, a principle codified by
the Geneva Convention on the High Seas, 1958, Article 6, paragraph 1, and by
the United Nations Convention on the Law of the Sea, 1982, Article 92 and
other articles to the same effect;
(b) The principle of general international law which proclaims freedom of
navigation on the high seas, a principle codified by the Geneva Convention on
the High Seas, 1958, Article 2, and by the United Nations Convention on the
Law of the Sea, 1982, Articles 87, 90 and other articles to the same effect;
(c) The principle of general international law which proclaims freedom of
fishing on the high seas, codified by the Geneva Conventions on the HighSeas, 1958, Article 2, and by the United Nations Convention on the Law of the
Sea, 1982, Articles 87, 116 and other articles to the same effect;
(d) The principle of general international law according to which no State may
subject any part of the high seas to its sovereignty, codified by the Geneva
Convention on the High Seas, 1958, Article 2, and by the United Nations
Convention on the Law of the Sea, 1982, Article 89;
(e) The norm of general international law which rejects the right of hot pursuit
on the high seas, outside the exclusive economic zone, a norm stated by the
United Nations Convention on the Law of the Sea, 1982, Article 111;
(f) The norm of general international law which, except as otherwise agreed
between the States concerned, prohibits imprisonment and corporal
punishment as penalties for violations of fishing laws and regulations;
(g) The principle of general international law regarding the co-operation of
States in the conservation of the living resources of the high seas, stated by the
United Nations Convention on the Law of the Sea, 1982, Articles 63, 117, 118
and 119;
(h) The principle of general international law which prohibits the threat or use
of armed force in international relations, codified by the United Nations
Charter, Article 2, paragraph 4;
(i) The principle of general international law which makes it an obligation to
settle international disputes by peaceful means in such a manner that peace,
security and justice are not endangered, codified by the United Nations
Charter, Article 2, paragraph 3;
(j) The principle of general international law according to which States may
not invoke the provisions of their internal law as justification for their failure to
observe the international norms in force which bind them, codified by
Article 27 of the Vienna Convention on the Law of Treaties, 1969, in relation
to treaty norms;
(k) The principle of general international law of good faith in fulfilling
obligations assumed, codified by the United Nations Charter, Article 2,
paragraph 2; a principle which, in the field of application of international
treaties, takes the form of (1) the obligation to respect treaties approved: pacta
sunt servanda (Vienna Convention on the Law of Treaties, 1969, Art. 26);
(2) the obligation not to impede, prior to entry into force, the object and
purpose of treaties adopted and authenticated by a State by signature, until it
has made clear its intention not to be a party to the treaty, and of multilateral
treaties already approved by that State, provided that entry into force is not
unduly delayed (ibid., Art. 18); and (3) the obligation to refrain from acts
aimed at endangering the smooth conduct of negotiations while negotiations
are in progress.B. Further to the violation by Canada of the aforementioned principles and norms of
international law, the principles of general international law governing the international
responsibility of States may be applied, details of which will be given by the Kingdom of
Spain in due course. It must be stressed in this regard that the conduct of Canada, while
entailing damage to Spanish private interests, also infringes directly, and primarily, the rights
of Spain and of other countries, particularly the right to exercise exclusive jurisdiction, on the
high seas, over ships flying its flag and the right to have the freedoms of the high seas
respected with regard to them.
3. THE DISPUTE
The Notes Verbales of protest, numbers 24 and 25, that were presented on 9 March 1995 by
the Embassy of Spain in Ottawa to the Department of Foreign Affairs and International Trade
of Canada, and the Note Verbale from the Spanish Ministry of Foreign Affairs presented on
10 March 1995 to the Embassy of Canada in Madrid, as well as the Note Verbale from the
Department of Foreign Affairs and International Trade of Canada, of the same date, to the
same Ministry, point up the existence of a legal dispute between the two States. The texts of
those Notes are annexed hereto.
The Kingdom of Spain considers that the facts set forth in Section 1 constitute a crude,
flagrant and very serious violation by Canada of the fundamental, customary and conventional
norms of international law, relating principally to the freedoms of the high seas and to the
exclusive exercise of jurisdiction over ships by the State whose flag they are flying.
Accordingly, the Spanish Note Verbale of protest dated 10 March 1995 asserted, inter alia,
that by boarding the Estai,
"the Canadian authorities breached the universally accepted norm of . . . international law
codified in Article 92 and articles to the same effect of the 1982 Convention on the Law of the
Sea, according to which ships on the high seas shall be subject to the exclusive jurisdiction of
the flag State . . ., a serious offence . . . not in keeping with the usual conduct of a responsible
State, carried out under cover of unilateral legislation not opposable to other States".
Spain accordingly called for the immediate release of the crew and the boat, reserving all its
rights to take appropriate measures, including a demand for proper compensation.
The Note from the Canadian Department of Foreign Affairs and International Trade, dated
10 March 1995, referring to the Spanish Note of the same day, reveals Canada's obduracy in
defending the recourse to measures of coercion on the high seas against ships flying a foreign
flag, in spite of its manifest international wrongfulness, and the fact that it was prepared to
resort to such measures again in future, in order to give effect to a policy of unilateral fishing
in an area not under its jurisdiction.
It is therefore established that a dispute exists between the Kingdom of Spain and Canada,
which, going beyond the framework of fishing, seriously affects the very integrity of the mare
liberum of the high seas and the freedoms thereof, a basic concept and category of the
international order for centuries, and implies, moreover, a very serious infringement of the
sovereign rights of Spain, a disquieting precedent of recourse to force in inter-State relations
which, if it is not sanctioned by the proper authority of a decision of the Court, could welllead to an escalation of tension and violence that the Kingdom of Spain wishes to avoid by
means of its Application, in order to bring the discussion back into the framework of
international law, from which Canada has deliberately departed. Indeed, just recently, the
Government of Canada acknowledged that:
"At this stage, international law does not permit a coastal State to take unilateral measures of
management outside the 200-mile zone." (Pêches et océans, 7 May 1990, p. 7 [translation by
the Registry].)
The Spanish Government is not aware of any change in international law since the date of that
official declaration by the Government of Canada.
Recourse to an international judicial settlement, rather than unilateral coercion aimed at
imposing its own objectives at any cost, constitutes for Spain — and we think that the same
ought to hold good for Canada, an allied country which has always respected international law
and the jurisdiction of the Court — the necessary measure for the peaceful settlement of
disputes between States which respect each other and conduct themselves in an appropriate
manner in their mutual relations and with other States.
4. THE JURISDICTION OF THE COURT
The Kingdom of Spain founds the jurisdiction of the Court on Article 36, paragraph 2, of the
Statute. In fact, both Spain and Canada have, in accordance with that provision, made
declarations of acceptance of the jurisdiction of the Court. The two States accordingly have
the status of declarant States for the purposes of Article 36, paragraph 2, of the Statute.
The exclusion of the jurisdiction of the Court in relation to disputes which may arise from
management and conservation measures taken by Canada with respect to vessels fishing in the
NAFO Regulatory Area and the enforcement of such measures (Declaration of Canada,
para. 2 (d), introduced as recently as 10 May 1994, two days prior to the amendment of the
Coastal Fisheries Protection Act), does not even partially affect the present dispute. Indeed,
the Application of the Kingdom of Spain does not refer exactly to the disputes concerning
those measures, but rather to their origin, to the Canadian legislation which constitutes their
frame of reference. The Application of Spain directly attacks the title asserted to justify the
Canadian measures and their actions to enforce them, a piece of legislation which, going a
great deal further than the mere management and conservation of fishery resources, is in itself
an internationally wrongful act of Canada, as it is contrary to the fundamental principles and
norms of international law; a piece of legislation which for that reason does not fall
exclusively within the jurisdiction of Canada either, according to its own Declaration
(para. 2 (c) thereof). Moreover, only as from 3 March 1995 has an attempt been made to
extend that legislation, in a discriminatory manner, to ships flying the flags of Spain and
Portugal, which has led to the serious offences against international law set forth above. The
question is not the conservation and management of fishery resources, but rather the
entitlement to exercise a jurisdiction over areas of the high seas and the opposability of such
measures to Spain. 5. THE COMPLAINT
As for the precise nature of the complaint, the Kingdom of Spain requests:
A. that the Court declare that the legislation of Canada, in so far as it claims to exercise a
jurisdiction over ships flying a foreign flag on the high seas, outside the exclusive
economic zone of Canada, is not opposable to the Kingdom of Spain;
B. that the Court adjudge and declare that Canada is bound to refrain from any repetition
of the acts complained of, and to offer to the Kingdom of Spain the reparation that is
due, in the form of an indemnity the amount of which must cover all the damages and
injuries occasioned; and
C. that, consequently, the Court declare also that the boarding on the high seas, on
9 March 1995, of the ship Estai flying the flag of Spain, and the measures of coercion
and the exercise of jurisdiction over that ship and over its captain, constitute a concrete
violation of the aforementioned principles and norms of international law.
6. JUDGE AD HOC
In order to give effect to the provisions of Article 31 of the Statute of the International Court
of Justice and Article 35, paragraph 1, of the Rules of Court, the Kingdom of Spain now
declares its intention of exercising its right to choose a judge ad hoc.
7. RESERVATION OF RIGHTS
The Kingdom of Spain reserves the right to modify and extend the terms of this Application,
as well as the grounds invoked.
8. PROVISIONAL MEASURES
The Kingdom of Spain likewise reserves the right to request the appropriate provisional
measures, in accordance with the provisions of Article 41 of the Statute of the Court and
Articles 73 et seq. of the Rules of Court.
The Hague, 28 March 1995.
(Signed) José Antonio PASTOR RIDRUEJO,
The Agent of the Kingdom of Spain.
__________ ANNEXES
[Certified by the Agent of the Kingdom of Spain. [Note by the Registry]
Annex 1
Note Verbale No. 24/95 of 9 March 1995,
from the Embassy of Spain in Canada to the
Department of Foreign Affairs and International Trade of Canada
[Translation]
Embassy of Spain
No. 24/95
NOTE VERBALE
The Embassy of Spain presents its compliments to the Department of Foreign Affairs and
International Trade and refers to the message transmitted a few minutes ago by the Director-
General of the Western Europe Relations Bureau, Mr. Paul Dubois, to the Minister-
Counsellor of this Embassy, Mr. Ramón Sáenz de Horedia, in the following terms:
1. Canada is prepared to take any measures to put a stop to over-fishing,
mentioning, this time in English: "disabling force on vessels".
2. That the message be passed on to the fleet not to resist the application of
Canadian law.
3. Responsibility for any damage which might arise from resistance lies with
Spain.
The Embassy of Spain requests the Department of Foreign Affairs and International Trade to
confirm the terms of this message in writing.
Ottawa, 9 March 1995.
Department of Foreign Affairs
and International Trade
Western Europe Relations Bureau (RWD)
Ottawa
(Seal of the Embassy of Spain)
__________ Annex 2
Note Verbale No. 25 of 9 March 1995,
from the Embassy of Spain in Canada to the
Department of Foreign Affairs and International Trade of Canada
[Translation]
Embassy of Spain
No. 25
NOTE VERBALE
The Embassy of Spain presents its compliments to the Department of Foreign Affairs and
International Trade and has the honour to transmit to it the following communiqué just issued
by the Spanish Government:
"The Spanish Government categorically condemns the pursuit and harassment
of a Spanish vessel by vessels of the Canadian Navy, in flagrant violation of
the international law in force, since these acts are taking place outside the 200-
mile zone.
The Spanish Government has lodged the most vigorous protest with the
Canadian Government, demanding immediate cessation of the persecution.
The Spanish Government has reported this lamentable action to the member
States of the European Union and to the Commission, pointing out that on
6 March last the Council of the European Union declared itself categorically
against the threats made by the Canadian authorities."
The Embassy of Spain takes this opportunity to reiterate to the Department of Foreign Affairs
and International Trade the assurances of its highest consideration.
Ottawa, 9 March 1995.
Department of Foreign Affairs
and International Trade
Office of the Assistant Deputy Minister (RGB)
Ottawa
(Seal of the Embassy of Spain)
__________ Annex 3
Note Verbale No. 10
from the Ministry of Foreign Affairs of Spain
to the Embassy of Canada in Spain
A
Original Spanish Text
B
Translation from the French into England
__________
A
Original Spanish Text
Ministerio de Asuntos Exteriores
Nota Verbal No. 10
El Ministerio de Asuntos Exeriores de España saluda atentamente a la Embajada de Canadá
en Madrid, y en relación con el apresamiento del buque de pesca con pabellón español Estai
realizado por las autoridades canadienses el dia 9 de Marzo de 1995 en aguas internacionales
manifesta lo siguiente:
Que al efectuar el referido apresamiento, las autoridades canadienses han violado la norma
universalmente aceptada de derecho internacional consuetudinario, codificada en los artículos
92 y concordantes de la Convención de 1982 sobre derecho del mar, según la cual el Estado
del pabellón posee jurisdicción exclusiva sobre los buques en alta mar. Ante este grave
acontecimiento, que ha causado daños importantes a ciudadanos españoles, España presenta
su más enérgica protesta, al tiempo que exige la inmediata liberación de la tripulación y el
buque y se reserva el derecho a exigir las indemnizaciones pertinentes.
El Gobierno español considera que el acto ilícito cometido por buques de la Armada
canadiense no puede de ninguna manera ampararse en supuestas preocupaciones de
conservación de las pesquerías de la zona, al violar lo establecido por la Convención NAFO
de la que Canadá es parte.
La detención del barco es una infracción grave del derecho internacional, que no corresponde
al comportamiento usual de un Estado responsable, efectuada al amparo de una legislaciónunilateral no oponible a otros Estados. El Gobierno español exige en consecuencia la
anulación de la legislación mencionada.
El Gobierno español se ve forzado, a la luz de estos acontecimientos, a reconsiderar sus
relaciones con Canadá, reservándose los derechos para tomar aquellas acciones que estime
oportunas.
El Ministerio de Asuntos Exteriores aprovecha la oportunidad para reiterar a la Embajada de
Canadá en España su alta consideración.
Madrid, 10 de Marzo de 1995.
A la Embajada de Canadá en España
__________
[Translation from the French by the Registry]
B
Translation into French
Ministry of Foreign Affairs
[Unofficial Translation]
NOTE VERBALE No. 10
[Certified as accurate by the Agent of the Kingdom of Spain. [Note by the Registry]]
The Ministry of Foreign Affairs of Spain presents its compliments to the Embassy of Canada
in Madrid and, in connection with the boarding of the fishing boat Estai, flying the Spanish
flag, by the Canadian authorities on 9 March 1995 in international waters, makes the
following statement:
In carrying out the said boarding operation, the Canadian authorities breached the universally
accepted norm of customary international law codified in Article 92 and articles to the same
effect of the 1982 Convention on the Law of the Sea, according to which ships on the high
seas shall be subject to the exclusive jurisdiction of the flag State. In the light of this serious
incident, which has caused substantial damage to Spanish nationals, Spain lodges the most
vigorous protest and at the same time demands the immediate release of the crew and the
vessel and reserves the right to claim appropriate compensation.The Spanish Government considers that the wrongful act committed by ships of the Canadian
navy can in no way be justified by presumed concern to conserve fisheries in the area, since it
violates the established provisions of the NAFO Convention to which Canada is a party.
The boarding of the vessel constitutes a serious offence against international law, not in
keeping with the usual conduct of a responsible State, carried out under cover of unilateral
legislation not opposable to other States. Consequently, the Spanish Government demands the
repeal of the legislation in question.
The Spanish Government finds itself constrained, in the light of these events, to reconsider its
relations with Canada, and reserves the right to take whatever measures it considers
appropriate.
The Ministry of Foreign Affairs takes this opportunity to reiterate to the Embassy of Canada
in Spain the assurances of its highest consideration.
Madrid, 10 March 1995.
To the Embassy of Canada in Spain
(Seal of the Ministry of Foreign Affairs —
Ministry of State to the European Communities)
__________
Annex 4
Note Verbale from the Department of Foreign Affairs
and International Trade of Canada to the Embassy of Spain in Canada
[Translation]
No. JLO 0247
The Department of Foreign Affairs and International Trade presents its compliments to the
Embassy of Spain and, with reference to its Notes Verbales Nos. 24 and 25 of 9 March and
Nos. 28 and 29 of 10 March, has the honour to confirm that Canada was obliged to arrest a
Spanish trawler, the Estai, at about 4.50 p.m. on 9 March.
The Estai resisted the efforts to board her made by Canadian inspectors in accordance with
international practice. The crew of the Estai threw the boarding ladders into the sea and then
cut its trawl net in order to flee the scene. The Estai continued to move away despite repeated
calls by the Canadian patrol boat which ordered it to stop. Other Spanish vessels surrounded
the three Canadian vessels which were pursuing the Estai and attempted to obstruct the
boarding operation. The Canadian patrol boat was therefore obliged, after obtaining the
necessary authorizations, to resort to firing four warning shots across its bows. The captain ofthe Estai then stopped trying to escape and the boarding operation could proceed normally
without the use of force. The captain was arrested and the Estai was seized because there were
reasons to believe that they had committed one or more offences under the law and
regulations on the protection of coastal fisheries.
The Estai is currently en route to St. John's where it is expected between 8.30 p.m. on
Saturday 11 March and 8.30 a.m. on Sunday 12 March. Upon their arrival at St. John's, the
members of the crew will be free to return to Spain. The Crown Prosecutors are currently
considering what charges will be brought against the boat and its captain under the above-
mentioned law and regulations.
The Department wishes to assure the Embassy that all steps will be taken to ensure respect for
the dignity and well-being of the captain and his crew.
The Department would point out that the arrest of the Estai was necessary in order to put a
stop to the overfishing of Greenland halibut by Spanish fishermen. The attached communiqué
[Not deposited. [Note by the Registry]] of 9 March expresses the disappointment of the
Honourable André Ouellet, Minister of Foreign Affairs, regarding the position of the
European Union which has forced Canada to take measures of coercion for this purpose.
The Department would also point out that the Prime Minister of Canada proposed to the
President of the European Commission a 60-day moratorium on fishing for Greenland halibut
beyond Canada's 200-mile zone, in order to facilitate the search for a negotiated solution. As a
token of good faith, the Honourable Brian Tobin, Minister of Fisheries and Oceans,
announced on 9 March that Canada would not allow its own fishermen to fish for Greenland
halibut over a period of 60 days, both within and outside the 200-mile zone. At the present
time, it is the Department's understanding that no Spanish boat is fishing for Greenland
halibut on the Nose and Tail of the Grand Banks. The Department requests the co-operation
of the Embassy to ensure that this situation is maintained so as to make possible the
resumption of negotiations.
The Department of Foreign Affairs and International Trade takes this opportunity to renew to
the Embassy of Spain the assurances of its highest consideration.
Ottawa, 10 March 1995.
__________
Application instituting proceedings