MEMORIAL ON THE MERITS SUBMITTED
BY THE GOVERNMENT OF THE
FEDERAL REPUBLIC OF GERMANY MEMORIAL ON THE MERITS 141
INTRODUCTION
1. This Meiiiorial on the nierits of the dispiite is siibiiiitted Io the Court in
pursuance of the Order made by the Court on 15 February 1973, in the
Fisheries Jurisdiction case (Federul Repi,blic of Cermui~y v. IceIaird).
2. The subject-niatter of the dispute as defined in the Application of 5June
1972 institutine oroceedines on behalf of the Federal Reoiiblic of Gerinanv
against the ~epiblic of lciland, is the legality or otherwise of the extension
br lceland of its exclusive fisheriesjurisdiction to 50 nautical miles froni the
piesent baselines. This extension had been put into elfect on I September 1972
by the Lcelandic Rcgiilations No. 18911972issued by the lcelandic Minister
for Fisheries on 14July 1972.
The Reg~ilations No. 18911972together with an English translation notified
bv the Governnient of lceland have heen reprodiiced in Annex A to this
~emorial.
In the Application of 5 June 1972 the Governnient of the Fedcral Repiiblic
of Germany has asked the Court to adjiidge and declare:
(u) that the unilateral extension by lcelnnd of ifs zone of exclusive fisheries
jurisdiction to 50 nautical iiiiles froni the present basclines, Io be effective
from I September 1972, which has been decided iipon by the Parlianient
(Althing) and the Government of Iceland and coniiiiunicated by the
Minister for Foreign AlTairs of lceland to the Federal Republic of
Germany by aide-niémoire handed to its Ambassador in Reykjavik on
24 February 1972, would have no basis in international law and could
therefore not be opposed to the Federdl Repiiblic of Germany and to its
fishine-ves.-. -.,
(b) that if lcelaRd, as a coastal State specially dependent on coastal fisheries,
establishes a need for s~ecial fisheries conservation measures in the
waters adjacent to its cbast but beyond the excliisive fisheries zone
provided for by the Exchange of Notes of 1961, such conservation
measures, as Far as they would affect fisheries of the Federal Republic
of Germanv iiiav no. he ~ ~ ~ ~under international law. on the basis of
a unilaterai extension by lceland of ils fisheries jurisdiction, but only
on the basis of an agreement between the Federal Republic of Germany
and Iceland concluded either bilaterally or within a multilateral frame-
work.
In the Judgment delivered by the Court on 2 February 1973the Court found
that it has jurisdiction to enterlain the Application filed by the Governnient
of the Federal Reuublic of Ciermanv on
~ ~~~ . ~ ~ -- -~ ~, ~ ~ ~ ~iine~1~ ~ -nd to deal with the
merits of the dispute.
3. By Order made on 15 February 1973 the Court fixed 1 August 1973 as
the lime-limit ~o~ ~ ~ filine of the Memorial of the Government of the Federal
u ~ ~~ ~
Republic of Germany on the merits. Accordingly and in cornpliance with
Article 42 of the Rules of Court this Menlorial places before the Court a
stdtement of the facts relevant Io the merits of the dispute. a statement of the
law to be considered in relation thereto, and the submissions of the Govern-
ment of the Federal Republic of Germany arising out of those facts and those
principles of law. This Memorial is divided into the following parts:142 FlSHERlES JURlSDlCTlON
Part 1 contains the history of the dispute up to the date of the Application
and also an account of subsequent events which is intended to bring the
story as near as possible up to the date on which this Memorial will be
filed.
Part II deals with the aspect of conservation and presents thefactsconcerning
the need for conservation of the fishery resources in the area in dispute and
records and evaluates the measures taken in this respect.
Part 111 deals with the utilization made by hoth parties of the fishery re-
sources in the area in dispute and their dependence thereon.
Parr IV contains a statement of the history and development of the rules of
law relevant to.the dispute and a stütement of what in the view of the
Government of the Federal Republic of Germany represents the law
governing the dispute.
Part V deals with the responsibility of the Republic of Iceland for the
damage which has already been inflicted by Icelandic coastal patrol boats
on the ships of the Federal Republic, their personnel and their equipment
or which may in futurebe inflicted on them.
Part VI sets out the formal submissions to the Court. MEMORIALON THE MERlTS
PART 1
HISTORY OF TH13 DISPUTE
4. In order to put the interests which are at stake in this dispute, into the
right perspective, il iiiz~ybc helpful to star! ivilh the history of German and
lcelandic fishing in the waters around Iceland.
A. Traditional German Fishing ln the Waters Around Iceland
5. The rich fishing groiinds in the area of the high sea around lceland the
richness of which is due to the Gulf Stream, the shallowness of the waters
above Iceland's continental shelf and othcr no1 yet fully known hydrological
and biological factors, has attracted fishernien since the Middle Ages.
blainlv British and Dutch fishcrnien. but also Norweaia-, Danish and Ger-
man fisheriiien sailed for fishing in thesc waters. Permanent support and
trading stations were foonded by the nationals of these nations in Iceland; the
~anseatic towns Brcmen. ~iinbur~. and Lübeck also entertained such
pcrnianent stations in lccltind at tha<tinie. Fishing by lcelandcrs was under-
taken only on a very sniall scale and was mainly confined to fishing by sinall
boats forhonic consoiiiotion. lcelandic fisheries rcmained insienifirant in the
following time, especialiy since the Danish Crown to which 1ceï:ind belonged,
esiablished a nionopoly for the trade with foreipn nations in 1612and closed
the foreien tradinc stations. It was not beforc-1787 when the foreisn trade
rnonopoiy \vas abolished, that fishing by lcelanders was undertaken on a
larger scale, but never rcachcd the proportions of other nations' fishingefiorts
in these waters
6. Fishing vesselsof the North SeaStates have beencontinuously fishing in
the waters of the high sea around lceland during the following ccntiiries:
lcelanders were content with sinall-boat fishing in the vicinity of the Coast.
This siliiation prevailcd iintil the end of the 19th century although steamboat
and trawling had nlrcady changed the fishing techniques and allowed niore
efficient and long-distance fishing. It was no1 before 1900 that the first Icc-
landic traiuler went into service; the number of lcelandic trawlers rcniained
small until the First World War (1911: 10; 1914: 20 trawlers). Geriiian
tra\i.lcrs started fishing in the lcelandic Area alrcady at the end of the last
centory. Since thcn, parallel to the general dcvelopiiient of modern fisheries.
ciitches by German trawlers in the lceland Area gradiially increased and
transgressed alrcady thc 100,000 tons level iii 1936. Since that time catches
by Gcrnian trawlers in the Icelaiidic Area rcinained rclatively stable at a
lcvel between 100,000and 120,000 tons, with the exception of the years 1952,
1953 and 1954, when catches from the lceland Area went up to 200,000 tons
in the averare. Table No. 1(sc.o. .44)lists the catches bv German trawlers
fr<ini 1893-1571 Ttic figiirciofthi, i:thlc ihontliiiCcrrna"'li~tiing\~circl~hx\c
beericoiisi:inil!. fijhinp in ihc iiaicr,;iroiIcïl~nJ sincc ilie hc~inningof ihe
20ili ccniiirv. 1)iiriiic u;ir xirs 1915-1918and 19.10-1945Cerm:in tr;i!rlcis
coiild not fish in these waters: the low catches beiween 1946and 1949aredue
to the fact that iltook soiiie time for the Gerinan fishing industry to rccover
from the heavy losscs during the war. The relative stability of the total TABLE NO.I. CATCHES BY GERMAN TRAWLEHS OF ALL SPECIES (FOR
HUMAN CONSUMPTION) IN THE FISHINC CROUNDS AROUND ICELAND
(in merric Iofis)1
quantity caught per annuin by German fishing vessels in the lcelandic Area
is evidence of the fact that the quantity of fresh Fishtaken from these fishing
grounds is needed to supplcinent the fresh fish landings froni other fishing-
grounds which can be reached by fresh-fish 1r;iwlers or snialler boats (pri-
marily from the North Sea), in order to satisfy the deriiand for fresh fish in
the German market. On the averase about neÿrly two-thirds of the demand
in fresh fish and aboi11 one-third of the total deniand in fish for huliian
consumption (fresh and frozen fish) is met by I~indings from the lceland
Area.
7. The followinç nations participate in the fishing in the "lcelandic Area",
i.e., the statistica;ires Va as defined by the International Council for the
Exploration of the Sea ([CES): in the first place lccland which had gradually
--
1 From 1893to 1967the catch figuresrepreseni the "landed weight of iced fish
becausethe fish wasgencrallytransparted in ice; al1oihcr landingssiichas saltedfish
or froren fishwcreconverted IO "landed weight of iced fish. Since 1968the figures
represent the"round frcsh weight" which is the weight of thc whole fishal the very
moment when iiis caitght. The "round fresh weight" is of coiirsc higher than the
"landed iveighroficedlish" forrnostlythciced fishisgiiriedand hasloron theaverage
5 percent.al ifswcightdue Iopressiirein iccduringthe transport. MEMORIAL ON THE MERITS 145
increased ifs share in the total catch of al1species (shellfish no1 included) by
al1 countries in the "lceland Area" (1960: 55%; 1971: 61 %), and in the
second place, listed in the order of the percentage of their respective shares:
United Kingdoni (1971: 21 %), Federal Republic of Germany (1971: 13x1,
Faroe Islands (1971: 1.5%), Belgium (1971: 1.4%). the Soviet Union (1971:
0.7%), France(l971: 0.7"/,). Norway (1971: 0.3 "/,) and Poland (1971 :0.1 %).
Sonrce: lCES Btillctiistatisriqrtcdespêches maritimes.
Thus the lions-share of the total catch from the lcelandic Area is taken by
Iceland itself, nearly all the remaining'part is taken by the United Kingdom
and the Federal Republic of Germany while the catch by vessels of other
nations is relatively sniall (ca. 4%).
8. The bulk of the fish caught in the lceland Area consists of demersal
species (cod, haddock. redfish, saithe, etc.). The fishing vesselsof the United
Kingdoin and the Federal Republic of Germany take only demersal fish
from the lceland Area; the vesselsof the United Kingdom take mainly cod,
while the vessels of the Federal Reoublic of Gernianv take mainlv redfish
andsaithc. hui nlso cod and h;i~dock'iiisiii:illcr quaniit~és.Tnblc NO.^(^ 1-16)
S~JWC the rcspccilvc ~h~re\ of the thrcc nation> in ihc catch (if the principal
Je~iicri;il çnccic, fr<iin 1960 IO 1971. I'claris fish ilicrrtnc. ia.clinl.ij c:iuxhi
only by lcélandic fishing vessels, generalry irr th; coastal area, and mainly
used for the production of fishnieal which is exported. The catch of the
demersal species in the lceland Area has remained relatively stable tliroiigh-
out the years; the catch of herring by Icelandic fishing vessels which had
reached its peak in 1965 with 590,000 tons, droppeù down to 12,000 tons
in 1971.The factors which have brouaht about the breakdown of the herring-
fishery are not yet fully known; but-if it was caused by overfishing. lceland
will certainly have to blame itselffor the result and cannot, under this prete.xt,
justify the exclusion of foreign fishing vesselsfrom the waters around Iceland.
lceland partly compensated the losses in the herring-fishery by intensifying
the catch of capelin (which may likewise be used for prodiiction of fishmeal
as was formerly the herring) up Io 192,000 tons in 1970 (1971 :182.900tons;
1972: 277,700 tons). As neither the United Kingdom nor the Federal Republic
take herring and capelin from theUlceland Area", if is only with respect to the
demersal speciesthatan equitabledistributionof thefishery resources between
the nations which habituallv have fish~ ~~ ~ thesesoeciesin the waters aroilnd
. ~ ~ . ~ ~
lceland will have to be niade should catch limitations hecome necessaryin the
future for conservation reasons. The figures of the German, United Kingdom,
lcelandic and total catches of demerial and pelagic species in the lieland
Area in the years from 1960till 1971are Iisted in table No. 3(seep. 147).This
table demonstrates that the absolute figures as well as the relative shares of
Iceland, the United Kingdom, and the Federal Republic of Germany in the
catches of demersal fish remained generally stable throughout the years
until 1967. Since then, lceland has been able to increase its catch of demersal
soecies from 310.000 inetri~ to~s .~ 1967 t~ ~17.~00 in 1971 (1968: 362.000:
1969: 444,000 id 1970: 471,000 metric tons). ~he increase of'lceland's catch
was mainly due to an intensification of the fishing of cod by lcelandic
trawlers. In order to illustrate the development of the catches by Iceland, the
United Kingdom, and the Federal Republic of Germany in the ICES "lceland
Area" in the years from 1960 to 1971, a diagram has been prepared (see
Diagram No. I at D. 148)which shows the develoument of the fipures of total
catches in the ''~c~land~rea" aswell as of the caiches by the fishing vesselsof
each of the three nations specified according to the speciescaught. -
TABLE NO.2. ICELANDIC U,NITED KINGDOM FEDERAL REPUBLIC AND TOTAL CATCHES OF PRINCIPAL DEMERSAL SPECIES e
INTHE ICELAND AREA,1960-1969 (Average) O\
(1,000 metric tons) Cod Haddock Flatfish Redfish Saithe Halibut Others Total catch ospecies
Total catch by al1
countries (1,000 t) 395.1 83.4 10.08 91.0 64.0 4.0 65.0 714.0
Iceland (1,000 t) 241.8 45.3 5.8 19.7 24.3 1.2 27.7 365.8
% 61.3 54.3 53.6 21.6 38.0 30.2 42.1 51.2
United (1,000 t) 115.7 32.1 4.9 7.3 12.4 1.O 12.2 185.5
Kingdom % 29.4 38.5 45.3 8.0 19.4 25.1 18.5 26.0 m
Federal (1,000 t) 23.4 2.1 ... 59.3 21.8 0.9 12.4 120.6 g
Republic % 5.9 3.3 ... 65.1 34.1 21.6 18.9 16.9
of Germany z
0,
1970-1971 (Avera&?) n
Total catch by al1
countries (1,000 t) 461.9 45.3 12.3 80.1 123.6 3.2 83.6 809.9
lceland (1,000 t) 276.6 32.1 8.2 26.5 62.0 1.2 37.6 444.1
% 59.9 70.9 66.7 33.1 50.2 37.5 45.0 54.8
United (l,OOO1) 146.2 8.8 2.9 1.8 18.3 0.7 8.6 187.3
Kingdom % 31.6 19.4 23.6 2.2 14.8 21.9 10.3 23.1
Federal (1,000 t) 26.7 1.8 0.2 47.7 34.2 0.4 7.7 118.7
Republic % 5.8 4.0 0.2 59.6 27.7 12.5 9.2 14.7
of Germany TABLENO.3. CATCHES OF DEMERSAL AND PELAGIC SPECIES BICELAND THE UNITED KINGDOM AND THE FEOERAL REPUBLIC OF
GERMANY. 1960-1971 INICESAREA VA
(1,000rnerric-tons)
1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971
Total catch (Va) 985 1142 1365 1245 1399 1418 1257 883 798 936 1028 996
Demersalcatch-total 759 680 714 736 765 744 648 666 687 741 819 801 5
Iceland-totalcatch 542 676 818 758 951 1005 880 502 468 638 680 612 O
s
Iceland-herring 136 326 478 396 544 590 430 94 28 24 16 12 $
*
Iceland-dem.catch 405 350 340 360 398 364 325 310 362 444 471 417 5
Others-dem. catch 354 330 374 376 367 380 323 356 325 297 317 384 !?
2
Iceland-cod 296 234 222 234 274 233 224 193 228 282 303 250
UK-dem. catch 173 184 203 213 210 224 169 186 157 135 165 210
Germany-dem.catch 135 103 123 122 123 125 107 119 120 119 113 125
Iceland-capelin - - - 1 9 50 125 97 78 171 192 183
P
U hIEhlORlALON THE hiERITS 149
This g-ph illiistrates very well the stability of thc catches of demersal fish
by Gernian fishing vesselsin the ICES lceland Area during the years 1960 till
1971. On the other hand the violent fliictiiations of the figiircs of the tolal
catches by al1nations in the "lceland Area" aswcll asof the catches by Iceland
were iiiiiinly caiiscd by the fluctii;itionin the herring and capelin fislicries
which had bcen ipiirely lcelandic aliair.
9. The data contained in the preceding paragraphs 4 to 8 provide ample
evidcnce of the fact tliat German fishing vesselshave habitually been fishing
in the waters of the hiçh seas around lceland since the beginning of mo-
dern fishina in the later Dar1of the last ccntiiry, and that al least since the
First ~or~d War Gernian fishery in these waters represented :in important
and essential part of German fisheries as a whole. Il should be noted in ihis
connection that German fisheries in the waters of thc high seasaround Iceland
have not bccn developed or maintnined at the expenséof Icelandic fisheries
which had becn able io pursue their own coursc of development and to rcach
a shareof nearly 68 perccnt.(l970)of theiotalcatch of demersal and pelagic
fish in the watcrs aroiind Iceland.
B. The lcelandic Fishery Limits Until 1972
I0,'When inodcrn fishing with steaiiiship trawlers beçziii in the Iast decride
of the 19th centiiry, the three-niile liiiiit for the territorial sea of lceland uns
firiiily csiablishcd. The Danish King, to whose doniinions lceland belonged
at that tiiiie, did no1claini exclusive fislicry rigliis for his sribjects beyond this
limii. It is triie ihat in former tiincs. duriiig the 16th. 17th and 18th ccntiiries,
the D;inish Kings had claiiiied a zone of 16 naiitical iniles froni which they
sought io ecliidc foreign fishernien; they wcrc. however, no1able to iiiaintain
and enforcc such ;in exclusive fishcries zone zigainst the resistancc of the
othcr North Scii States in vicw of the gcncril trend towards the threc-mile
linlit.
A thoroiigh and detiiled description of (lie history of Icelandic fishery
limits froni the Middle Ages up to the First World War has beengivcn by
Viktor Hohiiiert. Die Fischci.cigrcirzcit rlcs Nordelrits (Nordic Fishery
Liiiiits)Berlin 1940, pp. 3-52.
Inthe coiirse of the 19thcentury. after some diffcrences with other European
Porïers. the Danish Crown rediiccd ils claim for an exclusive fishcrv zone
around lceland io three nautical miles in harniony with the gcneral interna-
tional practicc prevailing in this cenliiry. This attitude found expression in the
following acts:
(O) The Regiilstions on Foreign Fishing off Iceland, proclainied by the
Danish King on 12 February 1872, prohibitcd fishing by nationals of
forcign nations "within the boundaries of the territorial sea asdetcr-
iiiined by thc rules of the gener~l international law or by special inter-
national agreements".
(6) On 24 June 1901, Denniark and the United.Kingdom concluded the
Convention for Regulating the Fisheries Outside Territorial Waters in
the Ocean Surrounding the Faroe Islands and lceland (Martens Noriveart
Recr,cilpr~~ii.rnlrlc Troirés,2' série.vol. 33, p. 268) which from then on
coniinued to govern the legal situation iintil after the Second World War.
This Convention was closely modellcd upon the Convention for Regu-150 FISHERIES JURISDICTION
lating the Police of the North SeasFisheries of 1882(seePart IV, para. 6,
of this Memorial below); its Article II read as follows:
"The subjects of His Majesty the King of Denmark shall enjoy
the exclusive right of fishery within the distance of 3 miles from
low-water mark along the whole extent of the coasts of the said
islands. as well as of the deoendent islets. rocks and banks.
As regards bays, the distance of 3 miles shall be measured from
a straiaht line drawn across the bay, in the part nearest the entrante,
~ ~th~first ooint where th~ ~ ~~ ~does not exceed 10 miles
The present Article shall not prejudice the freedom of navigation
or anchoraee in territorial waters accorded to fishing boats, provided
they confoh to the Danish Police Regiilations ruling this matter,
amongst others the one stipulating that trawling vessels, while
sojourning in territorial waters, shall have their trawling gear
stowed away in-board."
By the concluding article of this Convention, third States, the nationals of
which were also fishing in the waters around Iceland, were invited to adhere
to the Convention.
This Article, named "Additional Article", was worded as follows: "Any
other Government, the subjects of which carry on fishery in the ocean
surrounding the Faroe Islands and lceland, may adhere to the present
Convention. The adhesion shall be notified to one of the Governments at
Copenhagen or at London respectively. Such notilication shall be com-
municated to the other Signatory Power."
This accessionclause evidenced the willingness of the Danish Governinent to
practise the three-mile fishery limit also vis-à-vis other States.
II. Since 1901, the Danish Covernnient and, also after Iceland had be-
coine a "free and sovereign State" under the Danish Crown by virtue of the
Danish-lcelandic Union Law of 13 November 1918, the Government of
Iceland have strictly adhered to the three-mile fishery limit until aftcr the
Second World War. Altbough seemingly the Govcrniiient of lceland never
had abandoned its earlier claims to a four-mile liinit for other purposes (the
lcelandic Law of 7 May 1925,prohibiting the import of alcoholic liquor into
the territorial sea. still defined the territorial sea as iiieasurinr: four nautical
ment of lceland faithfullv observedthe three-mile liliiit for fishery DLirPoses.
The legal position of thé Government of lceland betwcen the-lwo ~orld
Wars may best be illustrated by citing the intervention of the lcelandic
delegate(Mr. Bjornsson) in the Second(Territorial Waters) Comniittee of the
Hague Conference on 5 April 1930,where he said:
"1 should like to explain in a few words the reasons why 1 voted for
the four-mile rule. In my country, four miles has been the liiiiisince the
middle of the 17th century for al1purposes, incloding fisheries. In 1901,
a Convention was concluded with Great Britain fixing iilimit of three
miles for fisheries, and, therefore, we maintain that limit for fisheries and
shall maintain it as long as the Convention is in force, though for al1
other purposes we maintain the liinit of four-miles, which has been the
accepted limit for the last three hundred years.
In regard to fisheries, there are certain people in my country who are
of the opinion that the thre5-mile limit is too narrow; sonic desire a six- MEMORIAL ON THE MERITS 151
mile limit, but 1 think four miles (which is the historical basis) would be
a fairliiitit, provided it *,ere possible to have some rules for protecting
the fisheries in certain areas outside the territorial waters.
1 regret that 1 aiii unable to agree entirely ivith Sir Maurice Cwyer
(the British delegdte) that fisheries are primarily of special interest to
one or several nations in each particular case. Around Iceland, there is
rather an international fishery: 1 think 1 may say that more than ten
different nations fish in the waters round the coast of Iceland. and the
number of nations wbich go to the rich banks tbere for fishing isconstant-
ly increasing. Furthermore, there are many nations which, though they
do not fish in the waters round the coast of Iceland. are interested in
obtaining the produce of such fishing. Therefore, in m> opinion, il is an
international question how we deal with the waters round the coast of
my country and certain other countries so far as concerns fisheries.
I will not deal further with the question at the moment; it niay be
possible for me to return to it when the proposals which the delegation
for Iceland has submitted to the Committee are discussed. 1 should,
however, like to express an innocent hope. We have seenthat about half
of the niembers of the Conimittee are in favour of the three-mile limit
with or without reservation, and that about half are against it. We
cannot reach aconclusion asto thegeneral rule which would be desirable;
but 1would express the hope that, in the future, it may be possible for the
two parties to approach each other a little, and perhaps they may end
by adopting our historic four-mile rule." (Acts of the Conference for the
Codification of International Law, held at The Hague from March 13th
to April 12th 1930. Vol. III, Meeting~of theCornmittees,Minutes of the
SecoirdComrnilree,Territorial IVarers,p. 142.)
12. Except for the dissatisfaction expressed on such occasions as for
example at the Codification Conference of 1930, the Covernment of lceland
did not claim until the end of the Second World War to be entitled. as a
matter of law, to a wider fisheries jurisdiciionThe campaign of the ~epublic
of lceland (which had severed the relations with the Danish Crown in 1944
and then become an indeoendent Reoublic) for extendine its exclusive
fi,hery zone hçyond the threi-inilc li~iiii iiltriin thc year lG8 On 5 April
1948. the I'.îrliltmeni (Althing) of lcelsnd enacted3 La\\ rniitlcd ''1.a~. con-
cerning the Scieniific Conservaiion oi ihe Cuntincnlul Shell i-isheries".
An English translation of this Law (together with the Reasons attached
thereto) which had been supplied by the Covernment of lceland is an-
nexed to this Memorial as Annex B.
Under this Law the Minister for Fisheries of lceland has been authorized to
issue "regulations establishing explicitly bounded conservation zones within
the lirnits of the continental shelf of lceland wherein al1 fisheries shall be
subject to lcelandic rules and control", and to issue"the necessaryregulations
fur the orotection of the fishine erounds within the said zones" (Art. 1).
~ccording to the declared purp&eUof the Law, the extended jurisdiction was
ostensibly sought for the enactment of conservation mesures; it could not
be anticipated at that time that this law was to provide the basis for the later
campaign of the Government of lceland to monopolize fisheries in the
waters around lceland for lcelandic fishermen. No immediate action, how-
ever, was taken by the Government of lceland after the enactment of this
Law. 13. On 3 October 1949. the Government of lccland gave notice to the
Go\ernnicnt of ihc Unitcd Kingdoni sf the deniinciaii,~ii~f ihc Cimieniion
of 1901 hrhich stood in the \ras tif;iCiirthcr c\tr.nsion oi the I:clsiidilirhcry
iurisdiction. and. in accordance with its ternis. the Convention ceased to be
in force after 3 0ctober 1951.On 18 ~eceniber 1951,the International Court
had rendered its jiidgnient in the Norwegian Fisheries casewhich recognized
the lawfulness of the strairh- baselines svsleni oractised bv Norwav for its
Ierrii.iri.\r.:i xn.1 fi,hcrI.iiiiti. On Il) \l;ir1952.tlic hliniiic'r I<ir I i*hei'ier
,ifI:el.inil issucJ ihe Kr.g.il.tii.iii~ No. 21 1952by irtiich Ihc fi,lic'ric~ Iiiiiits oi
Iceland wereextended to four miles ineasured froni s~ecifiedstrainht baselines.
and al1 fishing aetivities by forcign vessels were prbhibiied witGin the four-
mile zone. The Regulations went into eKect on 15 May 1952. The Govern-
ment of the Federal Republic of Germany did not protest against this action
of the Government of Iceland.
14. .On I June 1958.alter the failure of the First Conference on the Laiv of
the Sea 10reach agreement on the breadth of the territorial sca. the Govern-
ment of Iceland announced its intention to extend Iceland's fisheries limits to
a distance of 12nautical miles from the existing baselinesaround the coast of
Iceland. In a Verbal Note dated 9 June 1958 and delivered to the Minister
for Foreign Afiirs of Iceland on 16 June 1958, the Government of the
Federal Republic of Gerniany declared that the intended iiicasurc coiild not
aiïect the right of other nations to fish in the areas of the high seas in the
respective zone. and that international law does no1 cntitle any nation to
brins parts of the high seüswholly or partially by unilateral action iinder ils
jurisdiction and thus impair the rights of other nations which have fished
there unrestrained since niany decades.
The Verbal Note of the Embassy of the Federal Repiiblic of Germany in
Reykjavik dated 9 Jtine 1958 has alrcady been reproduced in Annex A to
the Metiioriÿl of the Government of the Federal Repiiblic of Germany on
the question of thejurisdiction of the Court filed on 13October 1972.
15. On 30 June 1958. the Minister for Fishcries of lceland issued the
Rrgiildiioni No. 701195~'~hcrehy ihe fiiherie, Iiiiiits <if 1ccl;inJ ucre exteii~1e.i
ii)I? nauiic~l niilei Ironi nçily defincd b;iclincs and al1 fisliiiig actiriiterhy
foreign vesselswere prohibitedwithin these limits.
The Regulations No. 7011958concerning the Fisheries Liiiiits of Iceland,
Srjdrtiarriditrdi 1958,B.5, are reproduced in Annex Bof the Meniorial of the
Government of the Federal Republic of Gcrniany on the question of the
jurisdiction of the Court.
16. The Regulations No. 7011958took eiïect on 1Septeniber 1958.In order
to avoid incidents and to prevent a" aggravation of the dispute, the Govern-
ment of the Federal Republic of Germany issued, on 30 August 1958, a
reconimendation to the Gernian Trawler Owners' Association to abstain
from fishing within the 12-mile zone proclaimed by the Governnient of Ice-
land. The Gernian trawlers followed the recomiiiendation until the settle-
ment by the Exchange of Notes of 19July 1961had been reached. No incident
had been re~orted durina that lime.
17. ~heifforts of the Federal Republic of Germany to initiate negotiations
for the settlement of the disoute on a multilateral basis between the States
concerned did not iiieet withsuccess. The dialogue between the Government
of the Federal Republic of Germany and Iceland was resunied by a Note of
the Ministry for Foreign Aiïairs of Iceland, dated 26 February 1959 and MEMORlAL ON THEMERlTS 153
delivered to the Enibassy of the Federal Republicof Germany in Reykjavik.
The text of the Note of 26 Febriiary 1959is reproduced in Annex D of the
Memorial of the Government of the Federal Republic of Germany on the
question of the jurisdiction of the Court.
This Note did not res~ond ta the ~rooosal contained in the Note of 16 Julv
1958of the ~overnrnent of the ~e<ierai~epiiblic of Germany for multilateral
negotiations. Instead. it referred to the discussions held in the Generat
~ssemblv of the United Nations which were interoreted bv the Government
of 1celan.das showing an increasing trend in favou; of a lf-mile limit, and to
the decision of the Assembly to c;iII a second Conference on the Law of the
Seain 1960.
18. The dialogue was continued by a further Note of the Government of
Iceland, dated 5 August and delivcred by the Embassy of lceland in Bonn to
the Foreign Ministry of the Federal Republic of Germany on 5 August 1959.
The text of the Note of 5 August 1959 is reproduced in Annex E of the
Memorial of the Government of the Federal Republic of Germany on the
qiiestion of the jurisdiction of the Court.
In this Note. the Government of lceland explained in soine detail the position
ithad takcn at the Conference on the Law of the Seain 1958and the reasons
for its policy with respect to the extension of Iceland's fisheries jurisdiction
to 12 nautical miles. The Governrnent of lceland emphasized that its claim
~~r an exclusive 12-mile fish~~ies zone was "a .roh~em of its existence":
referring to thc growing number of States clainiing or supporting a 12-mile
fisheries liinit.the Governnient of lceland expressed the conviction "that
it is only a question of Lime before the 12-mile limit will be accepted as a
general rule", and added that it would greatly appreciate "if the Government
of the Federal Repiiblic of Germany would consider the special situation and
wishes of Iceland". It is not necessary here to go into the details of the
Government of Iceland's Note, but it should be recorded what the Govern-
iiient of Iceland had to say in this Note with respect to a further extension of
its fisheries liiiiits beyond 12 iiiiles, which it considered to bejustified in view
of the particular situation of lceland as a coastal State specially dependent on
its fisheries:
"The Icclandic Government thinks that where a nÿtion is over-
whelniingly dependent upon fisheries, itshould be lawful to take special
measures.and to decidea furtherextension of the fishing zonefor nieeting
the needsof such a nation.
This idea was sympathetically considered by the third committee of
the Geneva Conference, even thoiigh some representatives feared that
such deoarture from the aeneral rule mieht ooen the door for abuse. The
lcelandic Delegation, thcrefore, proposid that a possible disagreement
should be settled by arbitration. With this addition il was carried by rhe
committee biit rejected at the plenary meeting.
A siniilar thought was, however. expressed in a resolution proposed
by South Africa and carried with 67 votes with none against.
The lcelandic Delegation however, pointed out that this resolution
could only apply to areas of the high seasoutside the generally accepted
fishery litiiits, as they might be at any given period.
It was necessary that the coastal State can unilaterally include an
adjacent area in ils fishing zone, subject to arbitration in caseof disagree-
ment." ~IEMORIAL ON THE MERITS 155
to the Embassy of the Federal Republic of Germany in Reykjavik copies of
the Exchange of Notes between the Governnient of lceland and the Govern-
~ ~ ~ ~ ~ ~ ~nited Kingdom and. al the same time. informed the Embassv
of the ~ederil ~epublic-of Gerniany about new ~egulations issued by thé
Minister for Fisheries of lceland on 1I March 1961 which proclaimed some
modifications of the baselines aareed uoon in the British-lcelandic Exchange
of Notes. Thcreupon, the ~overnmen<of the Federal Republic of ~ermany
a~oroached the Governnient of Icelandthrough its Anibassador in Reykjavik
totake up negotiations in order to reach a similar settlement of the fisheries
question. In the Aide-Mémoire, dated 12 April 1961 and handed by the
Ambassador of the Federal Republic of Germany to the Foreign Minister of
Iceland, the Government of the Federal Republic of Germany made it clear
that it could not regard the 12-mile fisheries zone as well as the enlarged
baselines as valid in law before such an agreement has been reached. The
Government of the Federal Reoublic of Germanv added. however, that il
~ ~
was still prepared, in the hope 8f an early agreement, to recommend ta its
fishing vesselsto observe the fishery lirnits claimed by Iceland, including the
new büselines, for the piirpose of akiding any incidents
. .~~ ..~~~ the~Aid--Mémoire of 12 Aoril is reorodoced in Annex G of the
Mernorial of the Government of the Federal Republic of Germany on the
question of the jurisdiction of the Court.
Tlic siïcr to negoiiatc ;in agreenicnt a.is aftrr sonie hc\itat~cin accepiedhy Ihc
<;o>,rrniiieni of Izel:ind irliicir:i\r.iilirreluctaiit to enter ,ni@ncgotlaiions.
2:. Scrioti~tioiis t<iok rilace in Bonn bet\iceii 19June and 6 JiiIs 1961.At
their beginning, on 20 un e961, the Icelandic Delegation handed an Aide-
Mémoire tu the Dclegation of the Federal Republic of Germüny which out-
lined and specified the concept with which the Government of Iceland ap-
proached these negotiations.
The tex1 of the Aide-Ménioire dated 20 June 1961is reproduced in Annex
H of the Meniorial of the Government of the Fedcral Republic of Germany
on the question of the jurisdiction of the Court.
23. Thc negotiations centred more on economic questions than on
fisheries qiiestions. After agreement had been reached on the economic
questions, the German Delegation tabled a drafr which was modelled
after the British-lcelandic Exchange of Notes of II March 1960 (the tex1 of
this Exchanee of Notes had alreadv been reoroduced in Aniiex B to the
~~~licationof the Government of the ~ederal Republic of Germany in this
case) and followed the wording of theseNotes very closely. It is reported that
the German Dclegation requested the same three-years phasing-out period
which lceland hnd granted British fishing vessels,from the date the arrange-
nient would take efïcct. Later, however. the Delegations agreed on the same
date for the end of the phasing-oiit period which had been fixed in the British-
l~~landic Ex~han~e -~ Notes. nanielv 10 March 1964. This resulted for the
<ierlii:i~i fiihing i,cricl,aiihorter phx,ing-out peri(i.i of iipproiin,ïlely tir0
belrs and clght iiionths only. Thi, Notes on \rhich thc.ie t\ro Delc!+tion* had
:i~rccd on 6 J.ily 1961, acre c\chinged (in IY J~ly 1961. In the conclii.ling
par.igr.~ph; of ihcic Notcr ii lidd bcen riipiil:itcd ihat the Note\ e\~li3nged
.hoiild soniiitiiie .an agresnient bet\iecn the tivo Go\.erniiientr and >liould
enter into force immediately.
The tex1 of the Notes exchanged on 19 July 1961 has already been repro- duced in Annex C to the Application of the Government of the Federal
Republic of Germany filed on 5 June 1972in this case.
24. That the two Agreements with the United Kingdom and with the
Federal Republic of Gërmany by which lceland had succeeded in consoli-
dating its position and had even secured a de facto recognition of ifs 12-mile
fisheries zone, were regarded in lceland rather a successihan an onerous
burden was evidenced by subsequent statements of members of the Icelandic
Government. When, in 1963, the Minister for Foreign AiTairs of Iceland, in
the Icelandic Parliament, defended the Agreement against criticism by the
opposition, he emphasized that the 12-mile limit, the recognition of which
had been achieved by the Agreement, was no1 the final goal and that the
Agreement did no1 prevent lceland from further implementing the Althing
Resolution of 5 May 1959 whereby the Government of the Republic of
Iceland had been committed to obtain the recognition of Iceland's right Io
theentirecontinental shelf area in conformity with the policy adopted by the
Law of 1948concerning the Scientific Conservation of the Continental Shelf
Fisheries.
25. On 10 March 1964. the transitional period. durina which British and
Gcrrnïn vesw!lswcre siill aIlo\reJ 10fisIr within ihc o,ilcr iniiles of ihc 12-inilc
fi5hcrtcs zone, came to an rnd. This day \vas Ii.iilcd in Iccland as a day of
victory; members of the Government of lceland look the opportunity to
emohasiz~ ~his~fact in o.blic -dd~-~~~sto the Icelandic oeoole. On II March
1964 in the lcelandic papers a statement of the Prime Minisier of lceland was
published which contained the following sentenceson the 1961 Agreement:
"This day must be regarded as a day of rejoicing. We have not yet
attained Our final goal, but the 1961Agreement has opened to us the only
practical way to attain that goal.
It has sometimes been asserted that we had given away rights without
compensation. The provisions of the Agreement, however, are in full
harmony with the Resolution of the Althing of 5 May 1959. We cannot
extend our fishery zone over the whole continental shelf unless inter-
national law allows us to do so. In the 1961Agreement, we havedeclared
that we shall continue to work for the recognition of the Resolution of
the Althing by the international community Eventually the International
Court of Justice will have to decide on the validity of Our claim. The
agreement on the jurisdiction of the lnternational Court of Justice is a
safeguard which secures that no party goes further than international
law permits and which prevents that a party resorts to the use of force.. .
Later it will turn out what an advantage it will be for the lcelanders that
the International Court of Justice will decide on possible disputes about
Our rights over the continental shelf." (Translation from the II March
1964edition of the Morg~ozhla<lid.)
26. It should benoted at this point of the presentation of the history of the
dispute that the Court, in ils Judgment of 2 February 1973, has recognized
that the Agreement contained in the Exchange of Notes of 19 July 1961 has
not ceased to operate with respect to those of its provisions which do not
have a transitory character, namely paragraphs 1, 2 and 5. These provisions
of the Exchange of Notes of 19 July 1961 still govern the relations between
the Parties and contain in their essencethe following obligations:
(a) the Federal Republic of Germany will no1 object to the claim of lceland
for an exclusive fisberies zone of 12 miles and recognizes the baselines MEMORIAL ON THE ~~ERITS 157
defined in the lcelandic Regulations No. 70 of 30June 1958,as modified
by paragraph 2 of the Exchange of Notes of 19July 1961;
(b) the Repiiblic of Iceland, while reserving ifs position to seek recognition
for a further extension of its fisheries jiirisdictionremains under the
obli~ation to accept the jurisdiction of the Court on the legality or
othcrwise of such an extension if the Federal Republic of Germany
should contest such extension.
C. The Claim of the Government of Iceland for a 50-Mile
Exclusive Fisheries Zone
27. There were no significant developments in the history of the dispute
during the period after the conclusion of the Exchange of Notes of 1961 but
before the general election which took place in lceland in July 1971. Both
Governnients gave eiïect to the terms of the agreement embodied in that
Exchange of Notes and fhey co-operated with each other in furthering the
activities of international bodiesconcerned with conservation and the rational
exploitation of fisheries. siich as the North-East Atlantic Fisheries Com-
mission. Neverthcless, the Government of lceland continued to maintain
that they were iinder an obligation, by virtuc of the Resolution of the Althing
of 5 May 1959(for the tex1 see para 5.of the Memorial of the Federal Re-
public on the qiiestion of the jurisdictioof the Court), to work for a further
extension of Iceland's fisheries.iurisdiction and thev therefore declined Io
beconie a party 10the ~itropean~isheries convention of 1964although they
had participatcd in the Conference at which it %,asadopted and had voted for
the Resolution on Conservation which was also adooied al that Conference
(seepara. 50 of Part IV of this Memorial below).
28. Howevcr. after [he gcneral elcction of Jiily 1971and the formation of
a new Governinent in Iceland, the dispute was rcvived in an acute form. A
policy statenicnt was issued by the new Government which included the
following passage(in an unofficial translation):
"Territorial Waters: The Fisheries Agreements with the United King-
dom and the Fcderal Republic of Gerniiiny shall be tcriiiinated and a
resolution be niade about an extension of the fishcry limit up to fifty
nauticul iiiiles froiii the baselines, effective not later than 1 September
1972. At thc same lime a zone of jurisdiction of one hundred nautical
miles shall be enacted for protection against pollution. The Government
will in this iiiatter consult the Opposition and give it an opportunityto
follow ils entire dcvelopment."
29. This policy statenient naturally caused considerable concern to the
Govcrnment of the Federal Republic of Gerniany because of the proposed
extension of fisheries limits and of the "termination" of the agreement con-
tained in the Exchange of Notcs in 1961. However, in vie~ of talks being
arraneed bctwecn the Government of the Fcderal Reoiiblic of Germanv and
of the-~overnmcnt~of lceland which were to be held inBonn in ~ugust~l971,
the Governnicnt of the Federal Republic of Geriiiany refrained froni taking
immediate foriiial steps with respect to the policy staternent. The talks took
place in Bonn on 20 August 1971. In these talks, the representatives of the
Federal Repiiblic of Germany expressed their view that the lcelandic fisheries
zone could not be extended unilaterally and that the Ezchange of Notes of
1961 was not open to unilateral denunciation or termination and that theGovernment of the Federal Republic of Germany would have to reserve thcir
rights thereunder. No conciliation of the respective views \vas achieved in the
talks and, on 31 August 1971, an Aide-Ménioire was handed to the Ani-
bassador of the Federal Republic of Germany in Reykjavik hy the Secretary-
General of the Ministrv for Foreign Anairs of the Government of Iceland.
~fter referring 10 soméof the relevant provisions of the Exchange of Notes
of 1961and in particular to the provision therein for the reference of disputes
to the lnternational Court of Justice, and after asserting that "the objcc~and
purpose (of that provision) have been fully achieved", the Aide-Mémoire
went on to Say that, in view of certain alleged considerations which il des-
cribed, "the Governnient of lceland now finds il essential to extend further
the zone of excliisive fisheries jurisdiction around its Coast to include the
area of sea covering the continental shelf. It is conteniplated that the new
liniits. the nrecise boundaries of which will be furnished at a later date. will
enter into iorce no1 later than I September 1972." The ide-~énioire'con-
cluded by indicating that the Governnient of lceland were prepared to hold
further iiieetings between representatives of the two ~overnnleiits "for the
purpose of achieving a practical solution of the problems involved".
A copy of the full tex1of the Aide-Mémoire of 31 Augiist 1971 is annexed
to the Application filed by the Governnient of the Federal Repiiblic of
Germany in this caseon 5 June 1972as Annex D.
30. On 27 Septeiiiber 1971, the Aiiibassador of the Federal Repiiblic of
Germany in Reykjavik delivered to the Secretary-Gencral of the Ministry for
Foreign AlTairs of the Governnient of lceland an Aide-Ménioire in reoly Io
the latter's Aide-Mémoire of 31 Augiist 1971. In this Aide-Méiiioirc. the
Governnient of the Federal Rep~iblic of Germany, expressing ils deep coii-
Cernabout the notification. by the Government of Iceland, of ils intention to
extend the lcelandic fishery zone, reaflirmed ifs view already known to the
lcelandic Governiiient, thai the ~inilateral assuniption of sovereign power by ii
coastal State over zones of the high sear is inadiiiissible under international
la\\, and that the Federal Repiiblic of Germany would have to reserve al1
rights in the event of siich a nieasure. The Aide-Mémoire u,ent on to say that
the Exchange of Notes of 1961,having no time-liniit nor containing a denun-
ciation clause, coiild no1 be unilaterallv denounced bv either varty..It ~as
eiiiph:i\ixd thit Ihc pro\ iiion inil,p:irsgr.iph 5conieri>iiigjuilia:il~~'ttleniciii
ofiiny di.ptiie \i.:is iii<iJe precirIiira \iiii.iti<>n siiih si \roi$lJ :triiithe
ei,cntof n iinil:~tcrsl c\leni.i>n of ihe Iccl<indi<fi.;liers ;.oiie hi,13naiiii:.il
miles. The Governincnt of the Federal Republic of ~e;iiiany therefore
reserved al1 rights deriving froni the Exchange of Notes of 19 July 1961,
especially the right to refer disputes to the International Court of Jiistice.
The Aide-Ménioirc went oii to note the nronosal of the Governiiient of
lccland that there should be further disciis;io~s and indicated that. withoiit
prejudice to ils legal position asoutlined above, the Federal Governriient w~s
prepared to enter into further discussions.
The full text of the Aide-Mémoire of 27 September 1971 is annexed to the
Application of the Governnient of the Federal Repiiblic of Gerninny in
this caseas Annex E.
31. Both Governnients having thus expressed their readiness to hold
further discussions, such discussions look place at ofiicial level in Bonn on
8 and 9 November 1971, and in Reykjavik on 1 February 1972. In ihese
discussions the lcelandic delegation reiterated that Iceland was entitled ta, '3'3.Followine this Resolution. on 24 Februa~~~~ ~ ~ 1972. the Minister~~~- -~
-- ~ ~ - ,
Foreign Affairs of the Government of Icclanù delivered an Aide-Mémoireto
the Ambassador of the Federal Republic of Gerrnany in Reykiavik. The Aide-
Ménioire contained a reference toa statement madeby the-lcëlandic Minister
for Foreign Anairs in the General Assembly of the United Nations on 29 Sep-
tember 1971 (first Enclosure to the Aide-Mémoire), and a reference to a
memorandum'entitled Fisheries Ji,ri.rdicfion in Icelaird and dated February
1972 (second Enclosure to the Aide-Mémoire).
A copy of the full tex1 of the Aide-Mémoire together with the second
Eliclosure thereto had already been annexed to the Application instituting
oroceedin~s in this case as Annex H (PD. 17. .. sripra). The first Enclosure
h~tl nt)! bccn 2n11c\ed ,~ti:e 11., repr~~~i~~~c ,d,i.xr tasII1, rc,le\~nt to ihe
q~jc,~,,>ro~f ri~hc~~e~~ori~Ji.i~oln n the \c.,~n.i Fr~:ld\.~re(1, pi,. 51.531,
The Aide-Mémoire stated that, for the reasons indicated in their earlier com-
munications on the matter, the Government of Iceland "considers the pro-
visions of the Notes exchanged (in 1961) no longer to be applicable and
consequently terniinated" and announced that "the Government of lceland
has accordingly decided to issue new regulations providing for fishery lirnits
of fifty nautical miles froni the present baselines, to hecome effective on
1 Septeiiiber 1972, as set forth in the Resolution of the Althing unanimously
adonted on 15 Februarv 1972". In the formal statement which the Minister
for t.>reicn ,\1131rhof the <io\ernnient 01 I:cl.ind h;d rï.d 1.)the Aiiibsi%:idcr
O< IIWl.c,dcr:tl Ucp11h1.c~)i(;er~ii:In) \\lien he ~I~~1t~crct1.i1e,\iJe-\I5nio~rc c,l'
24 Fchrt.ar) 1972. he <i:aicJ th.it tlie efTc.'ti\ed.,te oi the iicn r<gulstion> 18)
he !.~uc.l ~ r t 1 h.i>i< llic 1.14s1.~5% con:ernlng tlw S.'~ciil~t~C .'or~scr$tit~,on
ui tlic Catiiiiiieni~l Shclf l i\hcries !\,i~ild be I Septeinber 1972.
The full text of the statenient of 24 Fehruary 1972 is annexed to the Ap-
plication instituting proceedings in this case as Annex 1.
Neither the Policy Statement of the Government of Iceland, nor the Reso-
lution of the Althing of 15February 1972,nor the Aide-Mémoire of 24Feb-
ruary 1972,explained the choice of the 50-mile limit for theextension of the
lcelandic fisheries jurisdiction instead of the outer limit of Iceland's conti-
nental shelf as envisaged by the Law of 1945. Some light has been shed on the
matter hy a remark in the above-mentioned Memorandurn Fisheries Juris-
dic~iotr in Icelnnd issued by the Icelandic Ministry for Foreign Affairs in
Fehruary 1972, where it was stated at page 8:
"The coastal State should itself determine the extent of its coastal
j~~rt~~I~:iwanncr fisher~e.dn tlw ha,~s oi.,ll reIc\.xni Iuc.11c~w~ider~ition~.
IIII.el~n<lirierr ~<>n,i.ier.ttioii;\rsiilJ c.iincide \\ith the ;ont~iieiiial shelf
area, which, e.g., at the depth of 400 metres would he approximately
50-70 miles from the coast."
34. In the light of the Government of Iceland's Aide-Mémoire of 24 Feb-
ruary 1972, and the accompanying Statement of the Icelandic Minister for
Foreign Affairs, the decision of the Government of lceland to extend the
exclusive fishery zone of lceland to 50 nautical miles with effect from 1 Sep-
tember 1972 had lo be regarded as definitive. Under these circumstances, the
Government of the Federal Repuhlic of Germany concluded that it had no
courseopen but to refer the dispute to the International Court of Justice as
provided for by the Exchange of Notes of 1961. In the previous exploratory
talks with the Icelandic Government,the Government of the Federal Repub- MEMORlALON THE MERITS 161
lie of Germany had made il clear that if lceland should definitely decide to
extend its fisheries limits to 50 nautical miles. the Federal Republic of Ger-
many would have no choice but to have recourse to that means of peacefully
settling disputes that was provided for expressly in the Exchange of Notes.
On 4 March 1972 the Ambassador of the Federal Republic of Germany
informed the Prime Minister of Iceland of the decision of the Government
of the Federal Republic of Germany to bring the qiiesfion before the Inter-
national Court of Justice. On 14 March 1972 an Aide-Mémoire frorn the
Government of thc Federal Republic of Gerniany was delivered to the Min-
ister for Foreign Atïairs of the Government of lceland by the Ambassador
of the Federal Republic of Germany in Reykjavik. The Aide-Mémoire
formally restated the legal position of the Federal Republic of Germany in
reply to the Government of Iceland's Aide-Mémoire of 24 February 1912,
that is that "a unilateral extension of the fisherv zone of lceland is incomiia-
tihle with the gcncrïl riiles of iniernation.la*;" and "thxi ihe ~\rh<tngc.of
Sotc5 of 1961coniinucs Io brin forcc and i;iniiot bc dcni>iinceil iinil:iierilly".
and gave formsl notice of the intention oi ihe Fcderal Kep~blic of Cicrmliny
to in\.okc the agrecd prscedi.rc f<!r ohi:iiningthe :id,.idic:iiii>fthe Iriicr-
ihllttli1Couri i~fJuslice ihcrei>ii. \iciriif ilic ilefiniideci\iuri onAIIJthe
imminence of the action announced by the Governnient of Iceland. the Aide-
Mémoire further stated that the Government of the Federal Rep~iblic of
Germany, for the reasons explained in detail to the lcelandic Government
during the exploratory talks and in exercise of the right laid down in para-
graph 5 of the Exchange of Notes of 1961, would submil the dispute to the
International Court of Justice. The Government of the Fcdcral Republic of
Germany expressed its firm hope that "by this means of peacefully settling
disputes which is provided for under the United Nations Charter and is con-
sistent with good relations betnren friendly States, this lcgal dispute between
the two countries will be settled". 11finally pointed oot that "the Government
of the Federal Re~ublic of Germanv is willinr to continue discussions with
the Government of lceland in ordér ta agrie upon satisfactory practical
arrangements at least for the period while the case is before the International
court of Justice".
A copy of the full tex1of the Aide-Mémoire of 14 March 1972had already
been annexed to the Application of the Federal Repiiblic instituting pro-
ceedings in this caseas Annex J.
35. The Application instituting proceedings in this case on behalf of the
Government of the Federal Republic of Germany was filed with the Registrar
of the Court on 5 June 1972. Reference is made here to al1 the facts and
considerations contained in the text of this Application as far as they are not
repeated in this Memorial.
D. Negotiations for an Interim Arrangement dwing
the Pendeneyof the Proceedings
36. Even after the conimencement of the proceedings in this case the
Government of the Federal Republic of Germany continued to seek an
arrangement with the Government of Iceland for the tinie after 1 September
1972, the date on which the Government of lceland intended to put the
extension of its fisheries jurisdiction into effect. These negotiations were now
directed not so much at a settlement of the substantive dispute as at theestablishment of an interim régime which would las1 until the Court had
given ils decision on the legality of the action contemplated by the Govern-
ment of lceland or until lhat question had been disposed of in some other
way. Such negotiations have taken place between representatives of both
Governments on 15 May 1972al Keykjavik; and 2 June, and again on 7 July
1972,al Bonn. The reasons why these negotiations have remained unsuccess-
ful has been primarily due to the totally different approach of both Govern-
ments Io the iiiatter: while the Government of the Federal Republic of Ger-
man" was anxious to meserve its fundamental fishintl rirzhts but to allay the
fcariof the Governnient of lceland with respect to ankir-exploitation of the
fish stocks by offering a reasonable catch limitation, the Governnient of
Iceland, on the other hand. from the outset aimed at a uartial realization of
their claim for an extended fishery zone by trying to extract concessions from
the Federal Republic which in effect would have resulted in the exclusion of
German trawlers froni niost parts of the 50-mile zone.
37. On 15 Mav 1972. a deleeation of the Government of the Federal
~ ~ ~ ~ ~ ~ ~
~e~ublicof Gcrnknÿvisltcd Kcykjavik for talks with the Minister for Foreign
Affairs of lceland and proposed an interitn agreement on the following lines:
(a) Fisbing vessels registered in the Federal Republic of Germany
would continue to fish without hindrance in the waters around lceland
beyond the 12-mile limit;
(b) the total annual catch of demersal fish taken by vessels of the
Federal Kepublic in that area would be limited to the annual average
taken by such vesselsduring the ten years 1960to 1969, that is Io say Io
120,000 tons;
Ici tliis arranreiiieiit would be entirelv without oreiudice Io the
respective positions of the two Governmen~s, and in GrGcular to thcir
respective legal positions in relation to the proceedings before the Court;
(dl this arraneement would reniain in force oendinrz a more uerma-
nent settlenient 07th~ dispute by negotiations or &herwrse, but should be
reviewed at the Iatcst and not after 1September 1975.
The Minister for Forcign Aîfairs of lceland took note of these proposais but
declared that the position of the Government of Iceland with respect Io an
interim agreement had not yet becn defined and approved by the Icelandic
Cabinet. The Minister intiinated that the proposed catch limitation alone
would no1 be an acceptable basis but should al least be accompanicd by the
retreat of German fishing vcsselsfrom certain parts of the 50-iiiile zone and
by a reduction of the type and nuinber of vesselsemploycd. The question of
control was also disciisscd and the German side made it clear that it would
not be acceotable for the Federal Reoublic of Gernianv th~t~ ~ ~ ~an fishinrr -
vessels would be subject 10 enforcement measures ootside the 12-iiiile limit.
The Minister promised thiit, after the position of the Icelandic Governiiient
would have bccn delined. a concrete proposal for an interiin arrangeiiient
would be tabled by the lcelandic side at the next round of tÿlks which wcre
schedoled to take place in Bonn on 2 June 1972.
38. On 2 June 1972, flic Minisier for Foreign Anairs of Iceland visited
Bonn for a meeting with the hlinister for Foreign Affairs of the Federal Re-
public of Gcrmany. Diiring these talks the Minister for Forcign Alfairs of
lceland said that British and German orooosals for a catch liniitation and for
3 rloiiire of certlicn irc.is for211 lrauiin~(~cel.~ndic :ind Corcign) Corci>n<er-
\uton purpow, diJ nul tlike ilic hliifc prln:ipls oi prefcrential ircaiiiicnl for
Iceland riifi~icntly into aciouiii. but trould raiher nie;in ihe frcezing df ihe MEMORlALON THE hlERlTS 163
status quo. The Government of Iceland insisted on a visible reduction of
German and British fishing in lcelandic waters. He, therefore, proposed:
(a) that limitations should be imposed on the number, size and type
of vesselsallowed to fish; and that in particular freezer trawlers, factory
vesselsand other large fishing vesselsshould not be allowed;
(b) that al1 waters from the 12-mile limit out to 25 iiiiles shoiild be
reserved to lcelandic vessels;
(c) that the waters betwecn the 25-mile and 50-mile line should be
divided into 6 areas of which only 2 would be opened al the sanie time
for some months during the year;
(d) that certain additional areas should be closed for conservation
purposes for lcelandic and foreign vessels;
le) that certain areas should be reserved for line and net fishinc -
where al1trawling. lcelandic and foreign, would be prohibiled;
(f) that the Government of lceland would have the right to enforce
lcelandic rules and regulations in the whole area up to the 50-mile limit;
(g) that the arrangement should operate until the end of 1973.
The Federal Ministerfor Foreign Affairs took note of the lcelandic proposals,
but there was no time to discuss themindetail.Thereforea new round of talks
was scheduled for 7 July 1972.
39. In the talks which took place at Bonn on 7 July 1972, the nicinbers of
the Delegation of the Federal Rcpublic of Germany made il clear that the
lcelandic proposals of 2 Iune 1972were unacceptablc for the Fcderal Repub-
lic of Germany,in particular those proposals which envisaged thecomplete
ban of freezer trawlers, the complete exclusion of Gernian trau,lers from the
25-mile zone. the discriminatine - ré-inie in the outer zone. and lcelandic
cnforccnieiit j~ri\diciion o\er Gcriiilin lishing \essel,. An inicriiii .irrarigetiieni
on ihis b~il isas riijr licccptliblc furthe (;<>!,~.rnmcntof tlic FrJcr;il Repiiblic,
for the ft~lloh+ingrelisons itwoiild hzvc prejiiJiccd ihc fishcry righis of the
FeJer31 Republic in the w:itcrr ufihc high scdsaround Icel.ind. itir<>uldhxve
invol\c<l recognition of rtghis of )iiri,iliciio,inil c<>niruloker Cierriisii ship,
on the hiah seas.and it would havereduced the German catch in these waters.
becauseof the limited number of ships and the limited area and tinie opened
for fishing, to only a fraction of the normal catch in these wüters.The German
side exDressedthe ho~e that the lcelandic side would show a more flexible
attitude in reaching acornpromise solution for an interini arrangement, but
the lcelandic delegation was not in a position to modify (Iieir proposals.
Both sides declared their willingness to continue with the ncgotiations but
no date for further talks was fixed.
40. The Government of the Federal Republic of Germany had Iioped that
during the pendency of the proceedings before the Court the Government of
lceland would not Gke anv unilateralaction to enforce Iceland's claim for an
cxieiided e~clusi\e hhr'ry 7onc. Ho\iei.er. on 14 Jul) 1972. ilie Mintiier for
F,,hçricr of Icelaiid is\iicd the Kegiilsiton, No. Ib9 conccrning thc I'içhrry
I.iinit\oiTIceland uhich niiroort iticntorce the cl.iiiii of !lie Cis\,ernmcnt of
Iceland for an exclusive 50-mile fisheries zone.
The text of Regulations No. 189 of 14 July 1972, together with an English
translation, has been attache* to this Memorial as Annex A.
These Regulations prohibit al1fishing by foreignfishing vesselsin theextended
zone up to 50 nautical miles from new established baselines. According to the
lcelandic laws which the Regulations have declared appliczble to fishing acti-vities in the extended zone, foreigners who engage in fishing activities in con-
travention to these Reeulations. .av .hen be ounished bv fines uo to 100.000
lcelandic ~rowni. ~Geign ships which enter lcelandic ports gr territorial
waterswill besubiect toinspection of their papersand to enquiries in order to
ascertain that they have not violated or evaded the lcelandic~~awsconcerning
fisheries, and will probably be exposed to seizure if they were found Io have
contravened the new Regulations.
41. In view of this situation the Government of the Federal Reoubiic of
Gcrrii:iny sa\\ nit uihcr altern~ti\c ihxnt<aik thc CCIL~~ for interiin mçljures
(ifproicctioii f~r iheir fi<hing right., pcnding ihe final JeosiofihcCourt. On
the Keuuesr filcd bv the C-iowrniiic'nt of the I:edcr;il Rcniiblii uf Cieriii3ny
with thé Court on-21 July 1972, the Court, by Order of 17 August 1972,
indicated several provisional measures.The Court indicated in particular that
bothparties should each of them ensure that no action of any kind is taken
which might aggravate or extend the dispute, that the Republic of Iceland
should refrain from taking any measures to enforce the Regulations of 14July
1972 against the vessels registered in the Federal Republic and engaged in
fishing activities in the waters around lceland outside the 12-niile fishery zone,
and from applying administrative, judicial or other sanctions or any other
measures against such ships, and that the Federal Republic of Germany,
on their part, shoiild cnsure that ifs fishing vessels do not take an annual
catch of more than 119.000nietric tons of fish from the "Sm Area" of Lceland
as defined by the InternationalCouncil for the Enploraiion of the Sea as the
statistical area Va. Refercnce is made here Io al1the facts and considerations
contained in the Request of the Governinent of the Federal Republic of
Germany of 21 July 1972, and in the oral argiiinent belore the Court on 2
Augiist 1972as f;ir as thcy are not repeated in this Meniorial.
42. On 28 Augrist 1972. in a Verbal Note handed by the Anibassador of
the Federal Repiiblic of Germany in Reykjavik to the Minister for Foreign
Affairs of Iceland. the Government of the Federal Republic of Germany
informed the Govcrnment of lceland that the Federal Republic will respect
the Order made hy the Court on 17 August 1972, and fully carry out the
obligations containcd therein; that in particular, the Government of the
Federal Rcpublic will ensure that vessels registered in the Federal Rcpublic
do not take an annual catch of niore than 119,000metric tons of fish from the
"Sea Area of Iccland" as dcfined by the International Council for the Ex-
ploration of the Sca as the statistical area Va. The Government of the
Federal Repiiblic ndded that it was ready to discuss the position with the
lcelandic Govcrnincnt at any convenient date.
The tex1 of the Verbal Note of 28 August 1972 is reprodiiced in Annex C
to this Meniorial.
The Governnient of Iceland, however, openly declared that il would no1
comply with the Coiirt's Order of 17 August 1972and would take the neces-
sary measuresto enforce the lcelandic Regulations of 14 July 1972 against
the ships of other nations which \i,ould engage in fishing activities in the
50-niile zone.
43. As ibccamc apparent that the Government of lceland had no intention
ofcomplying wilh the Court's Order of 17August 1972and began, by actions
of ils coastal patrol boats, to interfere with the fishing operations of German
vesselswithin the 50-niile zone, the Governinent of the Federal Republic of
Germany continiied ils efforts to bring about an interini agrccmcnt with the
Government of Iceland in order to prevent further incidents. Ln September MEMOR~AL ON THE MERITS 165
1972 the Government of the Federal Republic proposed trilateral talks
between Iceland. the United Kingdom a-d the Federal Re~ublic of Geriiianv
for ncgotiaitng siish an inleriiii a~reciiierii. 0ti 19Scpteniber 1972. houever,
ttx hltnibter for For<.igii Ail..ir~ ai 1~cl:iri.l inforiiieJ the ..\iiibsssa,l~>01'itic
1:eJer;il Repuhlic oi C;ermliny itiRc~kjsvik that the G,i\criiiiicnt of I;cl.tnJ.
uhile:ippreci.~i.n,:this iii.ti.ivc oi the Gu\crniiient oi ilie Feder:il I<cputilt;
u.<s th11 N ill,ng "to p:lrIl...p.ttjrt!~ii.lt~l:ttt~r.tl,I~sc!i~~!~.,~n:criiing ipc<.aI
right. of fi>rcigii tiiliernicn nithln the Stl-i~iileIiniithi.(\ro~.ld lx prcparcd I,>
hhtc ~I~scii~~ion g<~tticatch~uai.~tn c~~iiccrncJ"; the l.cl.inJ~~ %l.n~,tcr ;8.1~leJ
1ti:itIII, Goserniiir.iit «oiil.l bc prsp:ire~tci:i~ntiiiiie niiti iti,:us\i;>iis aiih thr
Federal Republicof Geriiiany for making particular arrangenientsconcerning
German fishing inside the 50-niile liniit.
44. During the following nionths the Governnient of the Federal Republic
of Germany, through its Ainbassador in Reykjavik, repeatedly invited the
Government of lceland to take up bilateral negotiations for the conclusion of
an interim agreenient with respect to the exercise or the fishing rights of the
Federal Re~ublic in the waters around lceland durinr the nendencv of the
pro;cedinp hef<irc the C,iiiit Tlie Gi>\.crnment nt'Iccllind. hriirwcr. inide
ilclc.~r tliit11\\LIS1101 n1.1tngto :IXCIII hucti .IIini.~.~tton unlc,, the Govcrn-
oient of ihc Feilerxl Kepiibli; n,ii.ld iiiioriiithe Gobcrnnicnt of IccI:iiiil of tir
conception of an interini settlciiicnt in more detail in order Io enable the
Government of Icckind to consider beforehand whether it riiight be a suit-
able basis for begiiiiiing tlic disciissions. Although this deinand for tabling
concrete proposals prior Io the decision of both parties to t;ike iip negotia-
tions was soniewhat uiii~sual. the Federal Repiiblic being anxious to bring
about an interiiii agreeiiieiit as soon as possible, eventiially agreed to this
orocedure.
45. On 12 Februnry 1973 Ihe Govcrnnient of the Federal Republic of
Germany transniitted. through its Ambassador in Reykjavik. a paper to the
Government of lceland \\,hich ci~ntained detailed proposals for in interim
agreement.
A copy of the paper trans~nitted to the Governnient of lceland on 12 Feb-
ruary 1972,is attziched to this Memorial as Annex D.
The main points contained in this paper were the following:
(a) an agreed catch 1iniit;ition the amount of which woiild be nego-
tiable and niight possibly involve a reduction from the atiioiint allowed
by the Court's Order of 17Augilst 1972;
(b) fishing vessels of the Federal Republic of Geriiiany woiild volun-
tarily abstain from exercising their fishing rights in certain areas of
the 50-mile zone involving the abstention from fishing at any one tiine
in a fixed nuniber of areas ilut of six into which the zone between the
12-mile and 50-niile limits around the Coastof Lceland woiild be divided
(rotation areas);
(cl agreenient on certain specific areas which are known as spîwning
and nursery grounds which would be closed to both Geriiian and Lce-
landic fishing vesselsduring ;ifixed time in the ycar (conservation areas);
Id) fishing vesselsof the Federal Republic of Germany woiild no1fish
in certain specific areas which are frequented by lcelandic sniall boat
fishermen (long line and gill net üreas);
(ej Icelandic coastal patrol boats would have the right to inspect the
fishing log-books and the catches of German trawlers engaged in fishing
in the 50-nile zone and to reqiiest any relevant inforniation; 166 FISHERIEJ SVRISOICTION
f the foregoing arrangements would constitute an interim agreement
no1 akcting the basic question of the rights of the Federal Republic of
Ger~iiany and ifs fishing vessels in the waters around Iceland nor its
position beforethe Court.
46. The Governnient of Iceland accepted this paper as a basis for further
discussions, and a delegation of the Federal Republic went to Reykjavik for
discussions on 4 and 5 April 1973.These disc~issionsagain revealed the fun-
damental differences in the approÿch of both sides. The delegation of the
Federzl Rcpublic of Germany emphasized the need Io conceive a scheme
which would be consistent with the Court's Order of 17 August 1973 and
which, therefore, should have an agreed catch-liniit for German fishing vessels
in the "Sed Ared of Iceland" as ils basis. The representatives of the Govern-
ment of Iceland, however, emphasized the need, in view of lcelandic public
opinion, for spectdcular concessions from the German side which should
include, in addition to a sizeable reduction of the catch of German trawlers
in the waters before the Icelandic Coast,foremost a conspicuous limitation of
the nuniber and size of German trawlers as well as of the areas where they
would be alloived to fish. Therefore, the representatives of the Government of
Iceland declared that the proposals transnlitted by the Governnient of the
Federal Kcpiiblic on 12February 1973were not acceptable.
47. The re~resentatives of the Governrnent of Lceland without discussina
further the ~crman proposals, instead confronted the Delegation of thé
Federzl Republic with a new counter-proposal for an arrangenient which
contained thc following elements:
(a) The trawlers of the Federal Repiiblic would be permitted to fish
only in thc outer part of the 50-mile zone beyond a line which would run
on the averac- 25 to 30 miles froni the codst. Under such a scheme. the
coiiiplicaie(l <)sicni of rtitating cloicil cirenscoiil,l bc :ibnnJoncJ. This
iras praiçcd hy tlic I~clandic Delcgaiion ar s .pc.idl dJvintige of ruch
a schc~ne.
lh Tlic .i,ii<iunt oifirhtrliich ihipi OCthe FcJcral Kcp~ibli. ni~ulJ bc
;ill<iircdICIt:ike \r.,>iiIJ hat<i hc Iiiiiitcil.
, Tiic I~clsnilic <io\crriiiicni ii,ii.IJh:.\c the rishr IO "iiiinlenient"
the orovisions ~f~~h~ ~ ~ ~eem-nt ~.
(il)The duration of the arrangement would be about Iwo years.
(cl Freezer trawlers or factory shios would not be allowed within the
outer part of the 50-mile zone where Sernian trawlers would be allowed
to fiSh.
The Delegation of the Federal Republic immcdiately raised some objections
of principle to thesecounter-proposals:
(ci) A 25 or 30-mile limit would not be acceptable as a basis for an
interiiii agreement as il would prejudice the legal position of the Federal
Republic-with respect Io its fishi& rights on-the high seas in the pro-
ceedings before the Court and elsewhere; ifwould furthermore crcate a
dangerous precedent taking into accoiint the tendency of other codstal
States to extend their national fisherics' limits.
(hi A total exclusion of freezer trawlers and factory ships coiild no1
be accepted in view of the modernization of the German fishing fleet;
there was no logic in excluding any type of ship as long as an agreed
catch limitation existed. The German delegation again emphasized that MEMORlAL ON THE MERtTS 167
a catch-limitationshould be the basicand most important elenient of any
interim agreement.
(c) The lcelandic conditions would in their contbination result in a
drastic reduction of catches from the fishing grounds around Iceland.
The Delegation of the Federal Republic requested the representatives of the
Government of lceland to formulate an integrated counter-proposal in the
light of the discussion and to have it transmitted at an early as possible date
to the Government of the Federal Republic of Germany for consideration.
48. On 14 April 1973the Government of Iceland transmilted, throtigh its
Embassy in Bonn, so-called "basic points" for an arrangement regürding
fishing by vesselsof the Federal Republic in the lceland Area. These "basic
points" were, however, nothing more than a repetition of the earlier con-
ditions for an arrangement and in some respectseven more stringent; their
essencemay be summarized as follows:
(O) trawlers of the Federal Republic would be perniitted to fish in an
area outside a line which runs on the average in a distance of 30 nautical
miles from the baselines;
(b) the number of trawlers permitted to fish would be negotiated,
but in any casebe reduced ascornpared with previous years;
(c) freezer trawlers and factory vesselswould not be permitted within
the 50-mile zone;
(d) the amount of the total annual catch by trawlers of the Federal
Republic u~uld be negotiated, but in any case be reduced as cornpared
with previous years;
(e) conservation, long-line and net areas as determined by the lce-
Iandic authorities would have to be respected;
(f) rights of control and enforcement within the 50-mile zone against
German trawlers.
The full tent of the paper containing these "basic points" which had been
transmitted by the Government of Iceland through ils Ernbassy in Bonn
to the Ministry for Foreign Alïairs of the Federal Republic on 14 April
1973, isreproduced in Annex E to this Memorial.
49. On 29 June 1973 hirther discussions look place at Reykjavik on the
basis of the proposals of bofh sides of 12 February and 14 April 1973 res-
pectively. In these discussions the Delegation of the Federal Republic of
Germany iiiade a new coniprotiiise proposal which went greüt lenglhs to iiieet
the apprehensions of the Icelandic side. The main featiire of this proposal
consisted in the following:
Thefishing vesselsof the Federal Republic would, pendinga settlemeiit of the
fisheries dispute. voluntarily abstain from fishing in theICES "Sea Area of
Iceland" within ;tline which woiild run around lceland at a varying distance
from the lcelandic coast (or ils baselines), on some points touching the
12-mile liniit. on the averaze keening 20 to 40 niiles froin the coast. and
enibracing sbme areas up-to thé Gographical boiindarics of the [CES
"Sea Area of 1celand"-up to 130miles froni the coast-for rcüsons of con-
servation.
The map rvhich shows the proposed "line of abstention" as well as the 12
and 50 niile lines measured from the baselines of the lcelandic coast, is
reproduced in Annex F to this Memorial.The main reasons which had led the Government of the Federal Republic to
conceive such a proposal, were fourfold:
(1) To make an ostensible concession which. in view of Icelandic
pu'blic opinion, would make it politically possiblefor the Government of
lceland to agree on a compromise solution for an interim arrangement;
(2) in oarticular. to contribute effectivelv to the conservation of the
fish itock's in the waters aroundlceland byl
(a) staying voluntarily away from the main young fish grounds in the
north-eastern parts of the ICES Zone Va;
. . stavina com~letelv out of the imoortant soawnina arounds-o- the
cod inthe s&th of the ICES zoné Va;
(c) giving particular consideration ta lcelandic small-boat coastal
fisheries off the west coast of Iceland;
(3) at the same time, to make it clear that the Federal Republic of
Germanv maintains ils riaht to fish in the waters around lceland uo to
the 12-mile liniit (two sections of the line proposed by the Federal ~ebub-
lic running round Iceland at a varying distance reach the 12-mile zone
before the south-west and south-east coast):
(4) to make complicated measures of contra1 in the execution of the
arrangement superfluous and diminish thereby the risk of incidents be-
tween lcelandic coastal patrol boats and German trawlers to the widest
possible degree.
50. This new proposai of the Government of the Federal Republic of
Germany seemed to have found some sympathy with the Government of
Iceland; at least it was not as flatly rejected by the lcelandic Delegation as
previous proposals made hy the Government of the Federal Republic.
However, the Icelandic Delegation found that even this far-reaching com-
oromise orouosal did still not ao far enouah to fulfil al1the conditions which
ihe ~ovérnient of lceland regarded as ildispensable even for such a short-
term interim arrangement. Ln particular, the representatives of the Govern-
ment of lceland still insisted on a drastic catch-limitation (the amount of
00.00iI iiieiir< lori\ai\ nieniioiied herc ior ihe tirs1 iinie \rh/<h !i,,uld Iixic
h.rl\crt tlic prci'ioii* \h;irc oi rhc r~uer.il Rcpiibli:the? rii,t,~eJ fiiriher &Ia
c~inc.Jcr.,ble liiiii1;iti<>iihc n~nihcr oiCicriiidri fi4iing \cshclr iihich iiauld
bc ~llo\re<l itiii,h round Iccl:rnJ, and c?nille coiiiplcie c~;lii~ii,n free~er
ir3nIcri ir<111he 50-iii.I~~l~i1ie.F~,rriii~r\i, liuire~er. iIic rcpre,cnr.iioTtIie
Government of lceland insisted apain on full Icelandic enforcement iuris-
diction over German vesselswhichshould not be liniited to a right of inspec-
tion (which the Federal Republic would be willing to concede in analogy ta
the joint enforcenient scheme practised under the North-East Atlantic
Fisheries Convention), but should include also the right of seizure and appli-
cation of penal sanctions under lcelandic law. Thus again no agreement was
reached. A new round of discussions has been planned for the end of August
1973. \
51. .I hc <tiial~ii~i 111~nc~aii.ii#oni 1.pIIIihc i13tc irlien ihtb \lemori.ilh:id
bccn :~~iiipileJ. !ipl.itic\..len.c ufilic 1.i;~th:ir the dt.inieiric:ili,@p<iscJle-
gal positions of both Governments have up till now made it imiossible to
agree even on an interim agreement for the time during the pendency of the
proceedings before the Court. The Government of the Federal Republic of
Germany stands ready to negotiate an acceptable and equitable interim
agreement, but is also prepared to negotiate a permanent settlement with ~IEMORIAL ON THE MERITS 169
respect to the fishery rights of the Federal Republic of Germany in the waters
of the high seas around Iceland. The inflexible attitude so far shown by the
Government of lceland in the present negotiations, has made it abundantly
clear that the Government of Iceland is prepared to grant the Federal Re-
public of Germany only a short phasing-out period, but no permanent
settlement of the fishery rights of the FederalRepiiblic in the waters of the
high seas around Iceland. Therefore, the dispute on which a decision is
requested froin the Court still subsists and reqiiires an adjudication by the
Court. PART 11
MACHINERY AND MEASURES FOR THE CONSERVATION
OF FlSH STOCKS IN THE ICELAND AREA
A. lntroduetion
1. The first round on which the Government of lceland claims that it is
necessaryfor them to exiend the lcelandic fisheriesjurisdiction up Io 50 miles
from the coast and to reserve al1the fish in this area for lcelandic fishermen,
is the contention that fish stocks are in danger Io be over-exploited. For
illustration of this point of view the following sentencesmay be cited from
the Government oflceland's Memorandum on FisheriesJririsdicrioir in Irelaird
(issued by the lcelandic Ministry for Foreign Affàirs in February 1972 and
reproduced as Enclosure 2 to Annex H attached to the Application of the
Governnient of the Federal Republic (seep. 18.sr~pro)):
"Further im~lementation of the 1948 Law is becorning ever more
urgent. Fi<hing tcchniq.~e,iind c.iich cdp.?citgarc rnpidl! bcing dcvel<ipcù
.iii,I .ihoiii I1d1i>Ithe c;ii;h of Jcnicr,?l fi& in ihc Iccl~~iI:~2re.i hii bcen
en b fret r d Tlic ddnccr i>f inicnsifieJ forcigii fi5hini: IO
~celandic waters is now imminent.~he catch capacity of the distant
water flcet of nations fishing in Icelandic waters has reached ominous
proportions and il is well known that their activities are increasingly
bein- directed towards~-~~ wate~ ~a~ ~nd Iceland. The vital interests o~ ~
the Icelandic people are thcrefore at stake. They mus1 be protected.
Such remedial action would also enhance the role of lceland in a srstem
of an equitable division of labour whereby Iceland would be a prime
supplier of fish from her own waters ..." (1, p. 28).
"lt is quite clear that it iin the interest of al1concerned that necessary
conservation measures be adopted. In the areas adjacent Io ils coast the
coastal State is in the best position to evaluate and enforce the necessary
measures, since ils vital interests are at stake. Agreements between
varioils nations to solve the oroblems involved have oroved to be slow
and ineffectual because~even'if scientists may agree on what measures
are desirable and necessary, other considerations can prevent the en-
forcement of the recommended action" (1, p. 37).
2. There is no doubt whatever that the conservation of the fish stocks in
the Iceland area is a matter of very great importance. Fish are an extremely
valuable source of food and the number of fish in the senis limited. The con-
ser\~t<on and efficiente\ploii;rtion of ihc tirh stocks in the Iccl:ind are:15 of
imporisnce no1oiily t<iIceland biit also to ihc oiher nations uho oker .ilong
pcriod of ycars h:i\c li$hcd ihcre and in pdrt!ciilar io the Fedcr:il Keptiblis of
Grrniany. l~urihermorc. \incc s Ixrge proporiion of the nsh caiighi hy
1scl;tndic vc$~elsis e\portcd. the conicriaiion and exploiiïiion of the stocks
is of imoortancc to the ~ooulations who in the Dresent or in the future
mny dependon ihe ïren :is'a ;oiirceof food ihough th& play no pari in ils Jircct
r~~>loiiaiion.The 1-cdcralKepiihlic of Germdn) hïj a pdritcular iniercsi in the
conservation and utilization of the fish stocks in this area. German vessels
have been fishing in these seasin a manner and.on a scale comparable with This classification, however, is not without exceptions and somehow Ruid.
Some demersal species which are caught in the Iceland Area are partly
pelagic in their way of life, such as the redfish, or partly migratory, such as
the cod where migrations between Greenland and Iceland have been observed.
5. In view of the high intensity of the international fisheries in the North
Atlantic which has been caused by an increasing number of fishing vessels,
greater niobility of modern deep-seafishing vesselswith processing and deep-
, freezing equipment, and the development of more etiicient fishing gear and
refined means of fish-detection, it is generally agreed that conservation
measures are necessaryto prevent over-fishing. The first measuresintroduced
for thispurpose, such as prescriptions for the mesh-size of the nets and limits
for the size of fish to be taken, useful as they may be, do no1 necessarily
guarantee the conservation of the stocks; effective conservation presupposes
that enough mature fish will be left for spawning in order Io assure the
necessary recruilment of the stocks by young fish. Therefore il has become
necessary to regulate the catch of those species to which the most intensive
fishing effort has been directed. Limits for the total catch of the principal
species and quota allocations to the nations which are fishing for them have
already been introduced for the fishing grounds of the north-west Atlantic
by the International Commission for the North-West Atlantic Fisheries.
~im~larmcisiircs :ire iinder ~.on,!Jcr3ii<rn b) the Sorih-Enst hilnnttc Iijlrcrtr,
Comnii,si<in for th:,! p:irt t>fthe Atldnt!stiahich the fhhing jirouniir ;$round
IccldnJ belons (,ce bcI,~ii Dar>,. 32 Io 33 of this P.iri of the >lcnl,~riaI).
6. Il is a basic principlcof conservation policy that kind and extent of the
measures to be taken miist conform to the situation of the particular fish
stock which on scientific evidence is found to be in danger of being over-
fished. Therefore, it will be necessaryto examine the situation of each parti-
cular fish stock separdtely whether such a danger is imminent and what
medsuresare called for to meet this danger sufficiently and efectively. To this
end, special attention should be paid to therange of misration andrecruitment
of a certain fish stock; thus, piecemeal measures which are confined to a
limited area only and cover only a part of the fish stock, are of no useand may
even by its secondary effects result in a disruption of the precarious equi-
librium. This is particularly true with respect to pelagic speciessuch asherring
with their wide range of migration. but if is also true with some demersal
species (e.g., redfish, cod and saithe) which migrate beyond the limits of the
ICES Iceland Area. The conservation of fish stocks of such an international
chardcter can be eiïectively and adequately regulated only by the international
management of such stocks under the collective responsibility of al1 States
whose nationals fish for them. The claim of a coastal State Io be aualified to~~
regulxte ti,hiiig for ri.ch fi~ sto~k.; bcforç \ts ioa.;t i,nilirer;is a1variiin-c
\%il1ihe prin~.tple of collzr~a\e rcsli<~nsibilitOC ihc S1;itej for the high se>$
fisheries and may put the concept of international fishery management in
jeopardy.
7. While itis sound policy to direct conservation measures10the particular
fish stock and no1 to al1 the fish within a certain sea area generally (the
confinement of conservation measures to particular "fish stocks" had already
been made a condition for such measures by Articles 3 to 8 of the Geneva
Convention on Fishing and conservation of the Living Resources of the
High Seas of 29 April 1958), it should, however, not he overlooked that
conservation measuresdirected to one particular fish stock may have indirect
efects on the situation of other fish stocks. Catch limitations and quota
allocations which reduce the fishing effort directed to a particular fish stock MEMORIAL ON THE MER~TS 173
in a certain seaarea. .av .nduce the hiehl-.mobile fishine fleets to divert their
fishing effort, if that is technically and economically possible, either to other
speciesin the same nrea or to other fishing grounds so that the danger of over-
exnloitation of those other fish stocks or of those other fishine -.ounds which
ir iior )et prcscnt. [na). then ;iri>c. Thii,. rhcrc ian L>cni>iloiihi ihat the catch
limiiationc introdiiced hy the Intertiational Commivion ior ihc North-\Veçt
Aillinti< fishcrics [or thc fishini: arounJs of th15rccii>n \%IIIrndke II incvitiiblr'
to protect corresponding fish sticks of the ~astern Atlantic, including the
lceland Area, from a shift of the fishing efiort from the West Atlantic Io the
eastern areas. lt should, however, be emphasized that soch a situation
justifies only "closing-door" meastires by stabilizing the fishing elfort in the
eastern regions of the Atlantic on the present level (either by catch limitations
or other appropriate measiires), but not measureswhich purport to rcduce or
exclude fishing by nations which have habitually fished there. lt may be noted
in this context that the danger of the diversion of the fishing elfort from the
West Atlantic to the lceland Area ha, at present, disappeared since the
Court has, by its Order of 17August 1972asaffirmed andcontiniied by the
Order of 12 July 1973, limited the catch by United Kingdom and German
fishing vesselsin the lCES lceland Area to the previous level.
8. Turninc now to the situation of the fisheries in the lCES lceland Area.
the Governient of the ~ederal Republic of Germany would like to direct the
attention of the Court to the fact that the fishing vesselsof the Federal Kepub-
lic fish only for demersal fish in the waters ;round Iceland, in p'drtictilar
redfish, saithe, and on a smaller scale for cod. On the avcrage of thc years
1964to 1971 the catch figures of the three specieswere: redfish more thün 60
ver cent.. saithe nearl. 30 .er cent.. and cod iiboiit 5 Dercent. of the respective
iota1 catChes of these species in the ICES Jceland ~rea. As the Government
of Iceland asserls concrete cases of over-fishing in the ICES Iceland Area
only with respect to the herring, cod and haddock fisheries, the acciisation of
over-fishing agüinst the Federal Republic hds no sound basis in the fzicts.
Nevertheless, some comnients on the situation of the fisheries in the [CES
lccland Area will be made in order to place the situation in the right per-
spective.
9. German fishing veselsdo not fish for herring in the waters ziroiind Jccland
and are not expected to do so in the foreseeable future. German fishing
vesselshave, in Tact, fished for herring in the past only during the fcw years
from 1965 Io 1969(attracted by the herring fisheries boom) in compar:itively
small quantities (1965: 6,440 tons; 1966: 26,640 tons; 1967: 10,614 tons;
1968: 908 tons: 1969: 335 tons) comvared with the huze catch figrires by
lcelandic vessels(1965: 590,400 tons; i966: 430,100 tons-1967: 94,700 tons-;
1968: 27,600 tons; 1969: 23,500 tons).
10. In view of this nenlipible German fishinc effort which cotild not
possible have contributcd Ïothe break-down or thc herring fisheries in these
years, it would not be necessary to deal here with the case of the Atlanto-
Scandian herring were it not for the fact that the Government of Iceland
refers in the first lineIO the collaose of the herrine fisheries in order to Drove
~ ~ ~ ~ .
the danger of over-fishing by the iictivities of fishing fleets of other nations in
the waters arorind lceland. ln a pamphlet, entitled Iceluiirlai~drlie Leiv ofrlie
Seo. published by the ~overnment of lceland in 1972, itis st;ited tindcr the
heading "The Need for Conservation" (at p. 19): MEMORIAL ON THE MERITS 175
14. The Government of Iceland asserts that the cod stock is now also being
over-fished. In the aforementioned pamphlet Iceland and the Law of the Sea
(see above para. 10)the Government of Iceland said the following:
"Today the cod is by far the most important species in Icelandic
fisheries, and the Icelandic Government is most concerned with the
evidence which indicates that the cod is now also being overfished.
Scient~-t~ have clearlv~,emonstrafed t~ ~ ~he total mortalitv in the ~.
spawning population of the cod is now over 70 per cent. annually, and
fishing is responsible for four-fifths of this figure. The average -ge o- the
soawnine s-ock has been -~~rolv~red. .d.-~h over ten vears of aee
&e now very rare whereas 15-20 years aga fish up to 17 years old w&e
no1 unusual. These facts clearly indicate that the increased fishing effort
seems ta have drastically redked the spawning potential of the cod
stock. The cod is now in a similar position to the salmon or capelin
because the greater part of the stock has now only the possibility ta
s~7wn onc-~~~ its l~fe. ~ ~ ~iol~eical imolications of this are bound 10
be veiy negative for the survivalifthe Stock and can be disastrous for
the Icelandic economy if nothing is done to halt this dangerous trend"
(loc. cil., pp. 19-20).
It is not the place here ta examine the correctness of the figuresmentioned in
this statement, and of the conclusions drawn from them; it may suffice to
mention that this pessimistic view of the situation of the cod stock is not
shared by other experts (see below para. 16). In any case no concrete figures
have been produced by the Government of Iceland which indicate clearly a
downward trend in cod catches; after a gradua1 downward trend from 1955to
1966. the trend has aeain turned uoward from 1967 10 1971. If. however,
newl; built Icelandic crawlers will t;rn to the cod fisheries to an increasing
extent as predicted by the Icelandic Minister for Fisheries, then the danger of
over-fishing may, in fact. become imminent.
15. Here again the Government of the Federal Republic would like to
direct the attention of the Court to the fact that German fishing vessels take
only 8 small percentage of the cod catches in the ICES Iceland Area..The
catch figures for 1971-according to the Advance Release of the ICES
B~rllerinslatisriqrte despêchesmaririmes 1971-were as follows:
Iceland 250,324 metric tons
United Kingdom 161,855 .
Federal Republic 27,007
Others 13,816
Total 453,002
Thus. Iceland look 55.5 oer cent.. the United Kinadom 35.7 Dercent. and the
Federltl Kepublic only f~'~ercent of the total cod catch in CheICES Iceland
Are3 The compdr3tivcly sma11share of the tederal Republic of Germdny
in the cod fisherv around Iceland-imoortant as it may be for the Federal
Republic by repiesenting still 22 percent. of the total ~irman catch in these
waters (1971: 27,MH)of 123,000 tons)-could no1 have influenced the mor-
talitv rate of the cod stock to anv sizeable extent. The Federal Republic has
supiorted the research undertaken on behalf of the ~orth-~ast Atlantic
Fisheries Commission (see later, paras. 38 to 44 of this Part of the Memorial)
in order to ascertain whether a süfficient spawning stock of mature cod is left176 FISHERIES IURlSDtCTlON
for maintaining the oo~ulation. The Federal Re~ublic is readv to aeree to
any reasonablegroposal for restrictions on the cod fisheries which wilÏassure
the maintenance of the cod stock. provided that such restrictions are applied
indiscriminately.
16. In 1971 a Joint ICES (on behalf of the North-East Atlantic Fisheries
Commission)-ICNAF (Lnternational Commission for North-West Atlantic
Fisheries) Working Group on Cod Stocks in the North Atlantic was estab-
lished with the following terms of reference:
". .. to summarize existing assessmentsconcerning cod stocks in the
North-East Arctic. lcelandic and East Greenland Waters. as well as the
West Greenland, Labrador and Newfoundland cod stocks. and to ex-
amine in general terms the effects ofreeulatory measures,with particular
emphasison the interaction between fisherieson different stocks ..."
In this Report, presented in 1972(ICES CM 1972/F: 4), the Working Group
recommended a general reduction of the fishing effort directed to the cod
fisheries in several areas where it considered the stocks as being over-ex-
ploited, but not for the [CES Iceland Area Va with respect Io which the
Working Group came to the following conclusion (loc.rit.at p. 12):
"During the period 1964to 1967the catch of cod at Iceland declined
to 345,000 tons, in 1967'dueto lack of good year classesin the spawning
fishery, but since 1968 a part of the strong year classes 1961, 1962 and
1963 which originated at Greenland migrated to lceland and raised
catches again Io a high level (417,000 tons in 1970). Previous assessments
indicate that an increase in fishing mortalitywould not result in a further
increasein a yield per rccruit so rhis stock con he co~rsi(lerrdasheit~gjr~lly
exploired."
Thus, the Working Group did find that the stocks in the ICES lceland Area
were "fully" butnot "over"-exploited and a reduction of the fishing iiiortality
(by reduction of the fishing eiïort) wiis not recommended specifically for the
ICES lceland Area. The Working Group found, however, that the reduction
of the fishing effort recommended for the cod fisheries in certain other areas,
including the Arctic and Norwegian regions, which it recommended, should
not result in the fishing effort now being diverted to the lceland Area, but
rather re-deployed, if possible, on other lightly exploited species. The inter-
action between the regulations of fisheries on the same fish in different areas,
and the consequential need for an ocean-wide management of such fish
stocks has thereby been demonstrated very clearly.
17. The situation of the cod fisheries in the ICES lceland Area may be
summarized as follows: while it has not vet been oroven that this stock is
Over-fished, it is, at least, full; exploited and any increase in thefishingeffort
directed to the cod fishery rnay cause a deterioration of the situation. This
situation, however, provides no ground for the exclusion of Gernian fishing
vesselsfromfishing in the waters around Iceland; it justifies only reasonable
restrictionson thecod fishery, e.g.. the establishment of closed areas for the
protection of the spawning grounds or, at most, the limitation of the total
catch of cod in this area on the present level, provided that such measures
are applied indiscriminately.
4. THE REDFISHANDSAITHEFISHERIES
18. Redfish as well as saithe are found al1 round lceland but, since these
speciesare no1wholly of lcelandic origin, it has not been possible to estimate MEMORlALONTHEMERlTS 177
the efïect of fishing at lceland on the size of the stocks. All that can be con-
cluded from pas1catch figures is the fact that catches have rather reniained
on a relatively steady level within the last years; the figures were--on the
basis of the yearly ICES Brrllerins slalisriqries rlc pêchesmaritimes-the
following:
Redfish: 1964. ........... 62,000 metric tons
1965. ........... 74,000
1966. ........... 74,000
1967. ........... 67,000
1968. ........... 63,000
1969. ........... 56,000
1970. ........... 49.000
1971. ........... 47,000
Sairhe: 1964. ........... 21.000 metric tons
As both speciesare caught by German trawlers in the same areas and on the
same voyage, the fluctuations in the catch of each of thesc two species are
more due 10 accidential factors than 10 the decree of exoloitation of the
stocks. The total catch of both species has genera?lyremainid on the level of
80,000 to 90,000 metric tons on the average. Both stocks live not only inthe
Iceland Area: thev reoresent hiehlv minratorv stocks which migrate as far as
it is known &thin the whole region of Che~tiantic and Arctic 0cean between
Iceland, Norway and Greenland. It is, therefore, extremely dilficult 10 assess
the efïects of the fishine efïort in onlv one area on the size and recruitment of
the stock. The regulation of the fisheries of these species cannot be left to
the coastal State but mus1 be left to the competent international bodies such
as the North-East Atlantic Fisheries Commission.
19. The statisticÿl figures mentioned in the preceding parapraph do no1
prove a case of over-fishing; there were no other indicators which might have
pointed 10 the possibility that'the redfish or saithe stocks are in danger of
beine over-exoloited. The Government of lceland. too. has not been able to
prod;cc ;iny ixis ihiih woulJ iiidicitç that the redfish and s3ithcsiocks are
mer-fished: thc Govcrnnicnt of I~.cland ha< not evsn îswrted that aii over-
fishina of these oariicular stocks had taken olace. Thus. the redfish and saithe
fishericsrdn prokide no jii<tific:ttion ii.hatsoe\,er [or the extension of lccland's
jurtdiction oi,er theic fisherieiipto the 50-niilc Iiriiit.
20. The vesselsof the Federal Republic of Cermany fish also for haddock
in the lCES lceland Area, although on a very limited scale; on the average of
the years 1960 to 1969 the catch of haddock constituted only 3.3 percent. of
the total haddock catch by al1 nations in this area. The bulk of the haddock
catch is taken by lceland (54.3 pet cent.) and the United Kingdom (38.5per cent.). Certainly, the fishing effort of the Federal Republic of Germany
has had no sianificant influence on the state of the haddock stock.
21. The G-overnment of lceland has in its above-mentioned pamphlet
Iceland and rheLaw of rhc Sea (sec above para. 10)specifically referred to the
haddock fishery, besides the herring and cod fisheries, as the third case of
over-fishing in the waters around Iceland:
"As an indication of overfishing in Icelandic waters il may be pointed
out that the herring catch by Iceland dropped from 763,000 tons in 1965
to 50,700 tons in 1970, and the drop in the lcelandic haddock catch was
from 53,500 tons in 1965 to 31,800 tons in 1970. The figures for the total
catch of haddock in lcelandic waters by lceland, Britain, the Soviet
Union, France, Belgium and other nations fishing in lcelandic waters
a,ere 110,000 tons in 1961and 44,500 tons in1970 (lac.cir.,p. 19).
22. While these figures shall not be disputed here, ilshould, however, be
added that il is probably lceland which has to blame itself for the decline of
the haddock catches. The haddock is found al1 round lceland but mainly off
the West and north-west coasts. The haddock originates from spawning
grounds within the 12-mile limit before the south-western Coast of Iceland
and the state of the stocks is. therefore. laraely detcrmined by Icelandic
fishing within thïi zonc. The haddock ,rock ha; duindlcd sincc 1~60bcçauhe
of insutiicieni rccruiinient hy young fish. Wheihcr this rcsult ha%hccn cliu<ed
by adverse natural conditions. over-fishing of the spawning stock, or by
detrimental effects of lcelandic fishing for other species on the nursery
grounds of the haddock, may be left open here. In any case, the meagre
percentage of German fishing for haddock cannot possibly have been respon-
sible for this result.
6. EVALUATI~N OF THE SITUATION OF THE FISH STOCKS INTHEICES
ICELANDAREA
23. Summarizing the conclusions which had been drawn from the faciiial
situation of the different fish siocks in the ICES lceland Area; described in
the preceding paragraphs 9 to 22, it can he safely maintained that if there
have been casesof over-fishing in the past (cg., in the herringand perhaps the
haddock fisheries), the Government of lceland cannot blame the Federal
Republic of Germany for over-exploiting these fish stocks. As for the other
fish stocks, no over-fishing had been scientifically proven. Therefore, the
Government of Iceland cannot assert anv valid around for exclusive iuris-
diction over the waters around lceland fOr the Grpose of the preservation
of fish stocks. It may become necessary Io introduce limits for the total
catch of one or more species in order to prevent the diversion of fishing
effort from other over-exploited regions to the ICES iceland Area; this may
require quota allocations in the nations fishing in that area by equitable
criteria. but thisdoes not iustifv the exclusion of the fishing vessels of the
~ederal Republic from thai are; altogether. The situation ojihe fish stocks
does not yet require unilateral conservation measures by Idand aslong as
there are reasonable prospects that the international machinery respon-
sible for the conservation of fish stocks in the ICES Iceland Area will deal
adequately with this problem. This international machinery, that is the
North-East Atlantic Fisheries Commission, and the activities so fat under-
taken by this Commission will be described and evaluated in the following
paragraphs. MEMOR~ALON THE MERITS 179
C. The lntrrnational Management of the Fishrry Resourees in the
ICES lceland Area: the North-East Atlantic Fisheries Commission
(NEAFC)
24. Some credit for the remarkably stable amount of catches of demersal
fish in the waters around lceland since 1953 mus1 be given to the regulation
of the meshes of fishing nets and size limits of fish.
25. The first Convention on this matter which had been concluded by the
North Sea States to apply also to the lceland Area, was the International
Convention for the Regulation of the Meshes of Fishing Nets and SizeLimits
of Fish of 1937.There were nine signatories, including Germany, Iceland and
the United Kingdom. The Convention imposed a minimum mesh for the
Iceland area of 70 mm. and also imposed minimum sizes for fish-that for
cod being 24 cm.-and provided for the setting up of a Permanent Com-
, mission, but never became effective because of lack of ratification before the
Second World War broke out. At the Overfishing Conference held in London
in 1946, which was largely concerned with the problems of the North Sea,
the Convention for the Regulation of the Meshes of Fishing Nets and the
Size Limits of Fish of 1946(231 UNTS, 199)was entered into for the North
Atlantic, including Iceland. This Convention, which came into force on 15
April 1953, increased the mesh limit for the Iceland area to 110mm. and the
size limit in the case ofcod to 30cm.
2. THENORTH-EASA TTLANTICFISHERIEC SONVENT~O OF 1959
26. Fishing in the ICES Tceland Area is now regulated under the North-
East Atlantic Fisheries Convention signed in London on 24 Iuly 1959.
486 UNTS, 157. The text of this Convention is reproduced in Annex F to
the Application of the Federal Republic of Germany insti1uting proceedings
in this case.
The purpose of the Convention, asstated in the preamble. is "the conserva-
tion of the fish stocks and the rational exploitation of the fisheries of the
North Atlantic Ocean and adjacent waters, which are of common concern"
to member States.
27. The area covered by the Convention (which is defined in Art. 1of the
Convention) comprises, infer aliathe waters off East Greenland, the Middle
and Eastern Atlantic including the Azores grounds, the Iceland Area, the
waters around the Faroe Islands, the Irish Sea, the North Sea, the waters off
the Norwegian Sea, the Arctic Waters around Spitzbergen and Bear Island,
the Barents Sea. and the Kattegat and Skagerrak. Fourteen States are parties
to the Convention: Belgium, Dcnmark, France, the Federal Republic of
Germany, Iceland. Ireland, the Netherlands, Norway, Poland, Portugal,
Spain, Sweden, the Soviet Union and the United Kingdom. These are practi-
cally ail States whose vesselsfish to any extent in the Iceland Area.
28. Article 3 of the Convention establishes a permanent North-East
Atlantic Fisheries Commission (NEAFC), to which every member State may
appoint as ifs Delegation two commissioners and as many experts and
advisers as it likes. Each Delegation has one vote in the Commission. Deci-
sions may be taken by simple majority, except where otherwise specificallyprovided (see para. 31 below). The Commission has established Regional
Committees for each of the three regions into which the Convention area is
divided (Art. 5); the lCES lceland Area forms part of the northern region
(No. I) together with the Faroe Islands, East Greenland, and the Arctic
Waters. Adjacency to a region or participation in the fishery of a region
confers membership on the particular Regional Committee responsible for
that region; other member States which exploit elsewhere a stock which is
also fished in the region for which the Rcgional Comniittee is responsible,
may al their request be also represented on that Cornmittce. Ad hoc working
groups have been freqiiently formed over the years to deal with special
problems.
29. According to Article 6 il is the duty of the North-East Atlantic
Fisheries Commission and of its Regional Committees:
"(al to kee~ under review the fisheries in the Convention area:
ibj to consider, in the light of the technical information =vailable,
whatmeosuresmay berequired for the conservation of thefishstocks
and for the rational exoloitation of the fisheries in the area:
(c) toconsider,atthe request of any Contracting State, representations
made 10 itby a State which is not a Party to thisConventionforthe
ooenine of nie-tiationson the consekation of fish stocks in thecon-
vention area or any part thereof; and
(ci) to makc to Contracting Statesrecommendations. basedas far asDrac-
ticableon the resultsof scientific research and investigiitions,-with
regard toany of themeasuresset oiit in Article7 of this Convention."
30. The Commission is advised on scientific questions of fish conservation
by the International Council for the Exploration of the Sea ([CES). This
organi7ation. founded in 1903, has its headqiiarters iit Charlottenlilnd in
Denmark. It collates fishing statistics from fishing nations, inclitding al1 the
rnembers of NEAFC, and publishes the annual R~~llctiirstatistique des pêches
mari!imrs which is regarded as the main authoritative source of such statis-
tics. 11carrics out reviews of particular stocks for NEAFC arid in particular
has carried out reviews of the cod stocks in the North Atlaltic (including of
course the lceland Area)-more recently in 1965, 1967, 1968,1970and 1972.
These reviews, bascd upon statistics of the amount of fishing, the quantities
landed and an age census of the fish caught, together with ancillary data,
enable estimates to be made of the sire of the resoiirce and the rate of fishing
(i.e. the percentage of the stock removed each year) and the evaluation of
manaEe-ent str;ite~i-s and rarticolar conservation ~.ono.als.
31. Article 7 (1) of the Convention provides that the measures relating to
the objectives and purposes of this Convention ivhich the Commission and
Regional Committeesmay consider, and on which the Commission may
make recommendations to the Contracting States, are:
(a) any measures for the regulation of the size of mcsh of fishing nets;
(b) any measures ror the regulation of the size limits of fish that may be
retained on board vessels,or landed, or exposed or onèred for sale;
(c) any measiires for the establishment of closed seasons:
(dl any measuresfor the establishment of closed areas;
(e) any iiieasures for the regulation of fishing gear and appliances, other
than regulation of the size of mesh of fishing nets;
(f) any measures for the improvement and the increase of marine resources,
which may include artificial propagation, the transplantation of orga-
nisms and the transplantation of Young. MEMORtALON THEMERITS 181
According to Article 8such recommendations become binding for the member
Si.iter ifihc, :ire ;idopted b) a tito-thirdr rii:ijairit) ol the DeÏegrlt~~~np.rcccnt
2nd vottl~g: cxh inemher St;~te III:~)houe\er, \\tth.n :t~ect.~~n t(nic-l:m~t
ohiect IO the recoiniiicnd.itio ;ind iiitIi;icscnt sh:ill iiot be iindcr ohlig;ition
topive effect to the recommendation. The Government of the Federal ~epub-
lic of Germany would certainly accept and implement any recommendation
which the Commission might make on scientific evidcnce. Nor is there any
reason to suppose that the other member States would not accept and en-
force such a recommendation.
32. The procedure by which recommendztions of the Commission may
~~come bindin~ o..the member States does. however. not ve~.aoolv ,o recom-
mrnil:it 0115ior thc institutioii of iilt~h liniit;itionor cither rcstr.ctii~n~whch
:.rcnet Iited in p~ir.i-.:inh ,Ir df ,\rt.<lc 7. Horicser. hl Art slc 7 (2101th~
Convention, power to rccommend measures for regulating the amount of
total catch, or the amount of fishiiig efïort in any period, may be added to the
Commission's existing nowers under Article 7 (1) on a nro~osal ado~ted bv
not less than a two-thirds majority of the ~elegaljons piesent and voting and
siibsequently accepted by al1 Contracting States in accordance with their
respective constitutional procedures. Such a proposal cmpowering the Com-
mission to recommend measures of both catch and elTort limitation was
unanimously adopted by the Commission (including, of coiirse, the lcelandic
delegation) at the 8th Meeting in 1970. This recommcndation has now been
acceptcd by al1the Contrltcting States except lcelünd.
33. Jceland's refiisal to ;ictiv;itc section 7 (2) was not annoiinced ~tntil.the
NEAFC meeting in Loiidon in May 1973. At tlie previoits NEAFC meeting
in Londonon 9 May 1972, tlie Icelandic delegation had said that:
"... as mentioned nt the special meeting (of NEAFC) at the level of
Ministers in Moscow (on 15 December 1971). lceland was now prepared
to accept the activation of Article 7 (2). Formal notification would be
sent Io the Secretariat" (NEAFC, Srtmmary Rcrord for 3rd Sessioii of
10th Meetiiig-Doc. NC.10/175, 3rd Session, p. 7).
No such notification was, however, received by the Secretariat and, at the
l lth NEAFC meeting in London on 9 May 1973, the lcelandic delegate
without warning reported that:
". . .he was unable to say when his Government would ratify Article 7
(21 poucr,. The I~.r'lsn<licCi<,\,erririicnr hel:r\cJ th.ir soil,tdl States h;id
prinie re~ponrib~l.t) 1%)iiidnage :iiid pritir r~ghi to iise m;irinc reioiirscs
OIT1hs.r coi<ts. C:itch uui>t:i, .ionc.ired to contl\ct uiih tlirs riahi, irnd
the problem would be iaised ai next year's Law of the Sea conference
which was the only forum for discussion of if.It would be very difficult
for lceland to accept a catch quota system which did not harmonise
with its policy in regard to fishery Iimits" (NEAFC,S~,rnrnary Recor<ifor
21idSession of Ilrlz Meeti~rg-Doc. NC.I1/195, 2nd Session, p. 1).
The lcelandic delegate was asked whether lceland would consider ratifying
the Article with a reserv;ition on its application to Icelandic waters but later
stated (ihid., p. 7) that hc had telephoned his Government but had to report
that the Government of lceland remained opposed in principle to activation
of Article 7 (2) of the Convention in any circumstances. This decision was not
to be altered. He added, however, that his Government would continue to
respect measuresagreed oiitside the framework of the Commission.
34. The Commission later approved the following resolution by nine votesto none, with four delegations abstaining and one delegation taking no part
in the voting:
"The Commission
-Noting the decision of the lcelandic Government oot to accept the
proposal of the Commission that ifshould be empowered to recom-
mend measures concernine limitation of catch and effort:
-Rccalling that at the mccïing of the Comniir$ion ai Xlin:\terial levcl
in Moscou, in Dcccmber 1971. the '.linister% of ;il1 Contracting St:iies
defined the s~...v imolementation of this Dro~osal bv al1 member
States as the primary task of the ~ommission~; .-
-Considers that this decision not to approve the propmal will have the
regrettable and damaging result of depriving the Commission of
powers which are indispensable to the effective performance of ils
responsibilities;
-Expresses the hope that the Icelandic Government will soon reconsider
the decision, and
-Invites the other Contracting States 10consider as a matter of urgency
what steps may be taken in the meantime 10remedy this deficiency in
the Cominission's power" (NEAFC, 11th Meeting, Conclr~.riotrsand
Recommendations-Doc. NC. I11204,p. 4).
Accordingly, but for this sudden change in the position of the Government of
lceland, the Commission would now have power to recommend nieasures
for regulating total catch or fishing effort in any part of the North-East
Atlantic, including the Iceland Area, if il considered on scientific evidence
that such measureswere necessary.The result of the Government of Iceland's
belated refusal has been to force the other Contracting States to star1 again
and seek other meihods of regulating catch or effort even in thoseNEAFC
regions in which lceland has no interest at all.
35. Notwithstanding the fact that liniitations of catch or fishing eflort
recommended bv the Commission cannot UD till now be made oblieatorv
under the procedure of ~rticle 8 of the ~onbention, the Governnient of thé
Federal Republic of Germany would certainly accept any recommendation
which the ~ommission miehtmake on scientific evidence as to the limitation
of catch or fishing effort-in the lceland Area. Nor is there any reason to
suppose that the other Contracting States would notaccept and enforce siich
a recommendation. ~otwithstanding the'refusal of lceland to activate
Article 7 (2), the Government of the Federal Republic of Germany remains
ready and willing to negotiate measuresof catch limitation.
36. Article 13 (3) of the Convention provides for measures of national
control in the territories of the member States and nationaland international
measures of controlon the high seasfor the purpose of ensuring the applica-
tion of the Convention and the conservation measures enacted under the
Convention. A scheme of so-called "joint enforcement" to which 13niember
States, including lceland and the Federal Republic of Germany, are parties
has been made under Article 13 (3) and came into force as froni 1July 1971.
Under this "joint enforcement scheme" which bas likewise been institutcd
for the North-West Atlantic, niember States designate specially authorized
inspectors and the vessels from which they are to carry out their functions.
These inspectors are supplied with standard certificates, and the vessels
carrying theni, mus1 Ry a special pennant; they may stop fishing vessels of
other membcr States, board them and inspect their nets and catches. When
an inspection has been carried out, a report mus1 be written on a standard MEMORIAL ON THE MERITS 183
form for transmittal 10the Commission and to the Government of the country
~nder whose flae the insoected vesselsooerate. as a basis for oossible oun-
-
ishment of contr!ventions. This is, certainly, not a true "international"
ins~ection in the name and under the responsibility of the Commission, but
itiSreciprocal inspection under which every member State aquiesces in the
inspection of its fishing vessels byofficiaisof another member State under
specifically agreed rules. The prosecution and punishment of contraventions
- -ains. however. within the orovince of the State where the vesse1is reg- -
istered. The powers of the inspectors and the inspection procedure are
defined in detail in order 10orevent misuse of the inspection auihority and to
forestall~ ~nt-ov~~sies about the7orocedure a..lied in a concrele case.Bv the
institution of this "joint enforcemeni schcme" the North-East Atlantic
Firheries Ci>iiirnirsion and the 1ntern;iiional Coninlission for the North-West
Atlantic Fisheries have hecn brc;iking nciv ground in internalional law. It
c;iniiot any longer be niaintained that ihr implenieniation of conservation
nicasures enaiied under ihe Convcniiun could not cff~tively becontrolled.
3. AcTrVlTlEs OF THENORTH-EASTATLANTIC FISHERIE S OMMISSION
RELATINC TO THEICES ICELANO AREAS
(a) Mesliesof Netsand Sire of Fish
37. The rçgiilations ;is Io iiieshej <ifnetsand ii7e of lish in ihc Icsland arca
mhiih had becn itnposed under the Con\enii«n i~f1946hwe been niade inore
stringent by NEAFC. At present the limits in respect of the lceland area are:
Type of net Appropriate
ividlh
Seine net 110 mm.
Such part of any trawl net as is made of
Cotton, hemp, polyamide fibres or polyester
fibres 120 mm.
Such pari of any trawl as is made of any
other material 130 mm.
There are also further restrictionson devices obstructing nets and on sizeof
fish, the minimum for cod now being 34 cm.
(b) Icclarid'sProposolfor ClosedAreas 1967.1971
38. At the Fifth NEAFC meetine in 1967the IcelandicDeleration orooosed
(NEAFC Reportof F@h &Mpelirrg.-p1.0) that an area off the korth-&astcoast
of Icelandshould be closed to al1trawling in the months of July to December
for an exoerimental oeriod of 10 vearsand that ICES should be asked to
SIUJ Yni evaluaie the effect of the proposed mcawres and report ra the
Coinmis\ion. In 3 niemorandum. thc Icclandic Dclegation also drew aiteniion
to ihe nerd for consideration of ihc total nrublem of liniltina fishing effort in
lcelandic waters by, for example, a quota system where thé priorily of Ice-
land would be respected in accordance with internationally recognized
orinci~les reaarding the oreferential reauirements of the coastal State where
ihc people iiere ~i\~eruhelmingly dependent upon the resources invol\ed for
lheir IivelihooJ. In introdiicingtlieir rneniorandiini ihc lcelandic Delegation
sirs\sed the crucial irno<rrtance of the cod firhcrtei 10 the Icel:indic ccononly and the serious concern felt by lceland at the decline of cod stocks in her
waters. They maintained that the Commission's mesh size provisions were
insufficient to arrest this decline, that increased fishing ellort was now pro-
ducing reduced landings, that the mortality rate for imniature cod was high
and largely attributable Io fishing and that the spawning potential of the
, stock had been seriously reduced, with consequent adverse efïects on re-
cruitnient.'The proposedclosure would apply in an area where young cod
were known to congregate and grow to maturity before niigrating to spawn
elsewhere and where they were entensively fished by.foreign irawlers.
39. Most Delegations, including the Delegation of the Federal Republic of
Germany, expressed sympathy for the lcelandic position but considered that
further scientific investigation was necessary and suggested that this should
he entrusted to ICES. The United Kingdoni Delegation pointed out that
administrative as well as scientific considerations were involved. particularly
in view of the suggestion in the Icelandic memorandum that wider forms of
fishery managenient might be necessary, and they suggested thal the matler
might be exarnined by ~a working group upon which both scientists and
administrators would be represented. Alter further consiiltution, the Com-
mission unanimously passed the following resolution:
"The C.onimission, after consideringthe proposals put forward by the
lcelandic Delegation for the closure to trawling of an area off the North-
East Coast of lceland and the observations made by other Delegations
recomniends:
(i) that a working group be set up consisting of representatives of the
Federal Republic of Germany, Iceland, Norway. the USSR and the
United Kindoni to consider the lcelandic proposal and any modi-
fication of it that may appear desirable, and report to the Sixth
Meeting of the Commission;
(ii) thatICES should be invited tosend a representative Io meetings of
the group;
(iii) that nienibers of the groupshould consist of both administrators and
scientists;
(iv) that the lcelandic Government should be invited to convene the
first meeting of the group."
40. At the Sixth NEAFC meeting held in May 1968 the Commission
considered the report of the working group set up in accordance with the
resolution passed at the Fifth meeting (NEAFC Rcpori of Sir111Meeting,
p. 10). The working group reported that it had examined the proposal in the
light of information iiiade available by its scientific advisers who had con-
sidered the oro~osed ban in the lieht of the 1965 Report of the North-Western
Working droip and other available inforniatiin. It recommended that
further research should be undertaken on the size and age coniposition of the
stocks and their seasonal distribution uithin the vroposed area of closure
ïiid on theorigin ofrerruitiiicni fro~iiJillcreiii areAIOihe licl.indicspnaiiirig
stuck. It xlso reiommen\led that the Cornniijsion should give rurther ron.id-
eration 10 the lcelandic oro~osal althourh some members of the working
group had felt that the &idence already 'vailable was suiiicient to justify an
experimental closure. \
41. The Delegation of lceland while recognizing that there wereuncertain-
ties in the scientific advice on the need for and enècts of the oro~osed closure
which should be re&vedby further research, neverthelesi considered that
the stocks in the area were endangered and that imniediate action was required. They stressed the great dependence of Iceland upon its fishing
industry and put forward the modified proposal that there should be an
experimental closure off the north-east coast of lceland while further neces-
sary research was undertaken. After further discussion, the Delegation of
lceland noted that their proposal did no1 meet with general approval. They
agreed therefore not Io press for an experimental closure, on the understand-
ing that intensive research into the whole lcelandic fishery would he carried
out so that the Commission might consider at a later meeting what, if any,
conservation measureswould be desirable. This siiggestion was welcomed and
the delegations of the colrntries principally concerned were requested to
prepiire an appropriate resolution. The Commission later resolved as fol-
lows:
"Wiih referenceto theproposal for closure Io trawlingof an area off the
North-East coast of lcelandand to the report of the Reykiavik Working
Croup held in January 1968, the ~onimission resolves io request the
International Council for the Exploration of the Sea to make arrange-
ments Io initiate, as soon as practicable, and Io CO-ordinate the following
additional research:
(i) To study furlher by al1means available the size and agecomposition
of cod stocks and haddock stocks around lceland and in adjacent
waters;
(ii) To identify the origin and proportion of recruitment from different
areas. particularly Greenland, to the lcelandic spawning cod
fishery;
(iii) To study hy CO-ordinaled tagging experiments the dispersal and
survival of immature and spawning fish;
(iv) To identify, if possible, discrete racial characteristics and to
estiniate by this means the proportions of the different races within
the spawning stock of cod;
(v) To determine by exploratory fishing, echo surveys, etc., the im-
portance of the areas north of Iceland and any other areas not at
present fished as a source of recruits to the spawning stock of
cod or in other ways;
with a view to oreoaring for consideration at the Ninth Meeting of the
Conimission ne& éslirn~tesof the effects of changes in fishing effort on
the yields of the Icelandic cod and haddock stocks."
42. At the Ninth NEAFC meeting 1971,the ICES committee duly reported
to the Commission on these matters (NEAFC Rcporr ofthe /CES Liaison
Comniirree /or 1971-Doc. NC.9/141, pp. 5-10). In summarizing their
findings, the Chairman of the ICES Liaison Commiiiee said that, as far as
cod was concerned. fishinz effort at lceland had continued to decline and in
1969ii.:is;ii Ic, ih:in h;ilithe1964Ic\,el. Calch raies had. ho\iï\cr. inirsaxd.
The Cimii~iiiice h.id in:iJc a\,ersnienis. on the ba.;ii of i;irwi.s x\iiiniptioni
of \:iri;iiionin fishinr elfi~ri. of chdnges in y.eld pcr recruii. The.r <onilii>ii>n
had been that changes of eRort wouÏd notmake a significant change in the
total yield. They had given consideration Io the efict of closing an area off
the north-east coast of Iceland to trawling, for the period which the lceland
Deleeation had nrooosed. ln their ooinion. the effect of this closure would be
- ~ ~"~ 7 ~. -~
negligible, and if it led to diversion of effort to other areas, e.g., around
Greenland. its effect would be even smaller. As regards haddock, the situation
was that catches had declined continuously froml962-1969, hecauseof poor186 FISNERIES IURISDICTION
year classes and a decrease in British effort. The Icelanders had, however,
increased their effort and more or less maintained the level of their catch.
There was no cause ta changetheir Committee's previous assessment.
43. In fact. despite the pessimistic outlook foreshadowed in the lcelandic
orooosal in 1967.the stock. catches and catch-oer-unit effort had imoroved
in tic intervening years and continued to increase. But not~ithstandik~ this
and the report of the ICES Committee, the IcelandicDelegation again asked
the Committee to close this area to al1trawlinz in the neriod Julv to Decem-
ber, this time for an experimental period of fiveyears. 'Duringfu;ther discus-
sions the lcelandic Delegation made certain criticisms of the report of the
~C-S Com~~ttee. Thev later as- .d. however. that it was true that lceland
war representedon the,orkinggroup and rhatthe group h~dsll the aviiiliible
information before ir. This merely illustrïted. rhcy snid. that there sas a
d-~isio~ o~ oo~7ion in Iceland. Thev asserted that the fact that the stocks
were in a comparatively good state was due to temporary and external factors.
They had no doubt that Iceland had a right to expand its fisheries more than
others. Its dependence was illustrated by the fact that the 1967 and 1968
failure of the herring fisheries had led to a fall in its gross national product of
about 17 per cent. They alleged that increased mobility of distant water
fleets made the situation precarious and a remedy urgent (NEAFC, Siimmary
Recordfor 7th Session of 9th Meeting-Doc. NC.91150, 7th Session, pp. 2-3).
After further discussion the Commission passed the following resolution
(ibid., pp. 5-6):
"The Commission,
Taking note of the discussion, during the Ninth Meeting, of the Ice-
landic proposal for the closure to fishing of an area off the North-East
Coast of Iceland:
~pp~eciating lcelandic concern regarding the effects that might arise
from an expansion of effort due to the redeployment of iïshing from
other areas or stocks;
Noting, with interest, the intention of ICES to join with ICNAF in a
study of the scientific aspects of the cod fisheries of the North Atlantic
as a whole;
Requests ICES, through the Liaison Committee, ta provide such
further scientific information as may become available from this study;
and
Resolves that. at the next meetine of the Commission. or assoon as the
additional information becomes-available, ~egional Committee I
should give further consideration to the need for additional measures to
regulatëthe cod and haddock fisheries al Iceland, in the context of the
position in the North Atlantic as a whole."
44. Accordingly, it is clear that at that stage(May 1971)not only was there
no scientific evidence that the cod stock was in danger but lceland was not
itself alleging ani such danger. It was merely exGessing a fear that the
increased mobility of fishing fleets might lead to danger in the future.
(c) The Period Afrer Iceland's Decision Io Exiend Its Fisheries
Zone ro 50 Miles
45. Since the new Government of Iceland. which came into oower after
the general elections in 1971, had announced its intention ta extend Iceland's
exclusive fishery zone to 50 miles, it tried to find support for ifs policy in the MEMORIAL ON THE MERITS 187
North-East Atlantic FisheriesCommission. Such an attempt was made during
a special meeting of the Commission al Ministerial level. which was held at
Moscow in December 1971. The meeting, however, declined to discuss
Iceland's claim to a 50-mile fishery limit.
46. At the speciül meeting in Moscow, Ministers laid particular stress on
the urgency of measures for limitation of catch and effort in the NEAFC
area generally and of activating Article 7 (2) of the Convention. The United
Kingdom suggested as an immediate action (NEAFC, Sfrmmary Record for
3rd Session of Speciai Miaisfcriai Meeting-Doc. NC.Mj7, 3rd Session,p. 6)
that al1countries fishinr cod and haddock in the North-East Atlantic and in
the area ORIcrland (i.e.. in [CES areas I, IIa, Ilb and Va) sht~uldagrcc ït the
nicetins ih:ii J.irin~: 1972their raichci ufihcsc specieshç Iimiied Io a tunnage
not exceeding thaï caught on a\.erage over the previous ten years. 11was
stressed that this would be an interim propo+l and that the total catch and
its divisionsbetween countries would need to be considered subseqiiently in
furthe~ det~ ~ ~or anv,oe.manent scheme. Althou~h this-~ro~osa. .eceived
some support it was opposed by the lcelandic delegate on the grounds that
it would involve a relativcly high sacrifice of demersal fishing by lceland
(ibid.r o.lm, Iceland had. in fa$. achieved ils hie-est ever demeka1 catch
ihe previous year (1970: 471,000 inetric tons).
47. At the 10th Meeting of the North-East Atlantic FisheriesCommission,
held in Mav 1972. two reoorts were submitted for consideration. The first.
from the IEES ~iaison Cbmmittce. stafed that the lcclandic scientists had
suhmitted more data as to fishing effort in support of their case for a closure
of the area olf the north-east Coast of Iceland. They concluded. however
(NEAFC, Report of ICES Liaison Commirlee for 1972-Doc. NC.10/165,
para. 34):
"The new information from Iceland indicates that in recent years the
Iceland catch figures for that area are larger than the figures presented
by Iceland at the Working Croup meeting. In the absence of concrete,
detailed Icelandic data the Liaison Committee is not able to reassessthe
effect ofa closure."
The other report was from the ICES/ICNAF Working Graip on Cod Stocks
in the North Atlantic. This rcport, which covered the whole of the North-
West Atlantic (ICNAF) as well as the whole of the North-East Atlantic
(ICES on behalf of NEAFC), came to the following general concliisions (see
loc.cit. in para. 16 of this part of the Memorial, p. 42) as 10 the area as a
whole:
(i) lncreasing range and mobility of the feets fishing for cod in the North
Atlantic has increased their efficiency and their ability to concentrate
on those stocks that happen to be most productive at a parficular lime.
lii)For virtually al1 the stocks considered the current fishine. mortality has
reached theievel where further increases in fishing will 2 best produce
very small increases in yield per recruit, and insome stocks will actually
decreasethe yield Der recruit.
(iii) Therc is ;1p;obah;liry rhar spïunin~ ~tocks as low. or louer. thxn the
prcsent coiild lcad to ï rccriiiinientIiillure and consequenily to a very
large drop in total catch. Taking this into account, and to some extent
the economic benefits implied by an improved catch per unit effort, a
desirable level of fishing mortality (effort) would be approximately half
the present level. This would not affect the average long-term yield.
(iv) If such a reduction were achieved in a single year, then, given average recruitment, the cod catch would recover close to the current level after a
transitional period of five years.
(v) The same benefit could be achieved hy a phased reduction involving less
immediate disturbance to the catch thounh it-would take oerhaos ten
)nrr i<ircali>e ihc i~ll heneliis.
(VI) If ihc ilispl:iccd tishinp efi.~ri rem.iincd fi\hinp and coulrl bc reJeplo)ed
on oiher Iichil\ e\r>loiicd >r>ccicsilirre ituiild he .in incresrc In the toi.il
catch of alÏsp&ies'and a less severe immediate loss."
These considerations apply, however, less to the Tceland area than to other
areas. In some areas (ex., West Greenland and Labrador/Newfoundland)
fishinemortalitv alreadvexceeds what is reeardedas the maximum oermissible
figurc~his is iot so inihe Iceland area (~&ort of the ICESIICNAF Working
Croup, p. 30, table 10). Furthermore. while for most stocks the catch in 1970
was 20-25 ver cent. of the biomass (~~~~-~tal ~stimated weieht of the stock). .t
was somewhat lower for the Iceland stock (16 percent.) and much higher for
the Arcto-Norwegian stock (41 percent.) (Report, /oc.rit., p. 15).
48. At the 11th NEAFC Meeting, 1973, the lcelandic Delegation put
forward no proposais for conservation in the Iceland area. Instead they
announced their refusal to support measures for regulation of total catch or
fishing effortin any part of the NEAFC area (NEAFC, Sirmmary Recordfor
2nd Session of 11thMeeting-Doc. NC.11/195, 2nd Session).
4. EvALUATION OF THE RECULATORP YOWERS UNDER THE NORTH-EAST
ATLANTIC FISHERIEC SONVENTION
49. The failure to give effect to the extension of the Commission's power
under Article 7 (2) of the North-East Atlantic Fisheries Convention which is
entirely due to Iceland's refusal to ratify this proposal, is certainly a regret-
table weakness of the Commission's regulatory powers which should be
overcome as soon as possible. However, the lack of procedural power to
make recommendations of the Commission for catch limitations or for
restrictions of fishing effortbligatory by a two-thirds majority vote, should
not be over-estimated: 1
Firsr, the fact that limitations of catch or restrictions of fishing effort are
not yet included in the list to which the special procedure of Article 8 (obli-
gatory character of recommendations by virtue of a two-thirds majority
vote) applies, does not, under the present régime, preclude member States,
on the occasion of a Commission Meeting or elsewhere, to agree on catch-
limitations or restrictions of fishing effort with respect to certain stocks of
..-...
Second, even if the special procedure under Article 8 would already be
available. recommendations of the Commissi~~ still reauire the willinnness
of each kember State to accept therecornmendation'as binding because
each member State retains the right to "contract out" within a certain time-
limit
Therefore, the procedural advantage to make use of the special procedure
under Article 8 is not so decisive as it could seem; if member States are really
determined to introduce catch limitations. Ttis true that for a meniber State
which is unwilling to accept such obligations, it may be politically easier to
delay an agreement on catch-limitation than to repudiate openly a decision
which has already been taken by a two-thirds majority; but, in effect, no MEMORIAL ON THE MERITS 189
recommendation which provides for a catch-limitation or other restriction
could be forced on a metnber State against ils will if such recommendation
affects its interests substantiallv. irres~ective whether the orocedure under
Article 8 has been used or not. on the Other iiand, there is evéryprospect that
a recommendation of the Commission if based on sunicient scientific evidence
and on eauitable criteria. will find the suooort of member States. AI1 deoends.
therefire; on the qualit; of the ~ommi;sion's preparatory work and on the
~reoaredness of member States to live up Io their collective responsibility for
ihe- .reservation of the common fisherv resources. The commission has
alreddy Jcmonstralcd itr Jeicrniin~tii~n Io piirsiic %rithoui dclü? ilsionsiilera-
1,01101'mca,ures for catcti.liniitation In ttic case of ihe North SCJand Ccltlc
Sea Herring it agreed at the annual meeting in May 1973 to hold a special
meeting in December 1973, in order to decide on measures for regulating the
catch of herring and any other appropriate measureswhich may be recognized
for the conservation of North Sea and Celtic Sea Herring.
50. The International Commission for the North-West Atlantic Fisheries
(ICNAF) has been from the outset provided with the power to propose
overall catch-limits for any species of fish under the Convention for the
North-West Atlantic Fisheries of 8 February 1949; the cornpetence of the
Commission (and of its Committees or "Panels" froiii which proposals for
regulatory nieasures originale) has bien broadened by an amendment Io the
Convention which becanie effective on 15 December 1971, which allowed the
Commission or ils Committees to propose any appropriate measures to
schieve the ootitiium ~ ~ ~ ~ ~tion of the fiçh stocks. Bv another amendment
which becami ilTeclive already on19 ~ccember 19-59:the same procedural
device for makin~ vro~osals of the Commission binding on member States
as under Article 8 of the North-East Atlatitic Fisheries convention has been
introduced into the Convention, namely that proposals were to become auto-
matically binding on each member State if no1 objected to within a certain
.~-iod~~. time. U~d-r t~.se~nower. the lnternational ~o~mission for the
S~>rili.Wcst Atlantic Fisheries h:ii 3lre:idy in5tiiutcd est-h-liinitatiuns in the
f<irii~iif o<r.r;ill aatch aiicitds it.hicli iiere in sc\'cr:il c;iscs d,v.ded inIo n:itionül
qiioiai for the principxl .pc<ie\ in nios! fiihlng grounds (if the Wc\t Atl~iitic.
This c\pr,ricncc shoiis th;ir thc C<iiiinil\\ii>ii'pouers uiider the Sorlh-Wcit
inJ Nortli-East Atlantic I'i.heric, Coni,eniions are bruad ciiough toeit~hliih
.in cff~.ctiveand cquitüble cuiniiidn nianagcincnt of the tishcry rc\ourcer. The
Niwth-East Aililntlc Fislicric\ C,>mniiij~on which 13 reipsn<ible for ihc Ics-
land Area. has the additional advantaae to be able to rely on an independent
inicrnn1ion:il rcsearch body. the lntc~nüiionül Council -fur ille EYploririun
of the Sc;i(lCES). lor the supply of the ncccsilir). scientificcv~dcncc for ils pro-
vosals; the "seoaration of oowers" between the two bodies. the one vreparing
independent sc'ientific advke and the other taking the practical deciiion, may
contribute to the authority of the proposals of the Commission, enhance the
confidence in the soundness of the Commission's rirovosals and render such
proposals more acceptable forniember States. ~his, ioo, is an argument in
favour of the effectiveness of the Commission in dealing with difficult conser-
vation problems.
51. One of the most difficult problems that had to be faced by the Inter-
national Coinmission for the Fisheries of the North-West Atlantic, was the .
allocation of national quotas either in terms of catch quantities or fishing
effort units within a catch-limitation scheme.It may be difficult to draw lessons
[rom the sh.nrt lime ofexperience in this field, but it may be useful Io recall
some considerations in this respect as an example of international co-opera-190 RSHERIES IURISDICTION
lion in the management of international fishery resources. For the purpose
of allocation of auotas there was wide agreement within the Commission.
that the decisive criterion for such apportionment should be the relative size;
of the current catches of the States participating in the fishery of a certain
species.There were, however, some ~tates which were still in process Io biiild
up their high-seas fisheries and these States requested higher shares, and there
were finally the coastal States which claimed preferential treatment in the
form of a svecial share allocated beforehand from the total catch. Several
formulas h&e bccn discussed to mcei thc diiïcreni intcrests. As an cxample
fur sn equitshle solution the 40 : 40 : 10 : 10forniula niighi hc nieniioncd un
which a recent ICNAF auota re~ulation was based: this formula means that
40 percent. of the overall catch willbe allocated in iroportion Io catches over
the last three years, 40 percent. will be allocated in proportion to catches over
the las<ten years: 10 ver cent. will be allocated as "oreference" Io the coastal
State, and Ïhc rcmaiiing 10 pcr cent. will bc resewcd for \pcciaI necd5 (c.6.
for "ncw-conicrs"). ln ordcr to protect the spçcial inierests ofcuasial States in
casea considerable reduction of the total catch becomes necessary, a "sliding
scale" was proposed which provides that the shares of coastal States should
be reduced by a lesser degree than those of non-coastal States. It is not
intimated here that such a formula is the most eauitable solution and that
this formula should be guiding the allocation of q;otas in other regions and
under other circumstances. It has been mentioned here for the purpose of
showingthat international management of fishery resources is possible and
that the powers under the Fisheries Conventions of the North-West and
North-East Atlantic are broad enough to introduce and implement any
avvrooriate-conservation measure if member States are reallv determined
enough to assure an elTçsiii~cand equiiahle resiilt.
52. Having regard 10ihe exirting po~sibi1i)iesfor 3n rfFrrriic 2nd equitshle
international management of the fisherv resources of the ocean, the claim
ofa coastal State to he alone entitled to-determine how the fishery resources
in the high seasbefore ils coast should be exploited, mus1 be regarded as an
anachronism which has no other purpose than Io serve national interests of
the coastal State.
D. Conelusion
53. On the basis of the facts and arguments advanced in the preceding
.ara-.a~hs of Part II of this~M~morial it is r~s~~ctfullv submitted that the.. ~ ~ ~
argument of the Government of lceland that ilis necessary Io extend Ice-
land's fisheries jurisdiction ur, to 50miles from the coast for the purpose of
the conservation of the fish Stocks in the waters around ils coastsl cannot be
maintained. MEMORIALONTHEMERlTS
PART Iii
IJTILIZAI'IOS Ok TIII. FISIIP~KY RCSOL'RCI:S HI' ICEI..4NV
AS0 THE FCDERAL RF.IJUBI.IC OF CKKhlANY AND
THEIR DEPENDENCE THEREON
A. Introduction
1. The second eround on which the Government of lceland claims that it is
necescary for lc&nd IOextçnd II\fishery limiis. is the contentiothït the
exceptional dcpendence of the Icelnndic population un the fishing inductry
entitled theni to takc ail the fish in that nreï. For illustr~tion ofthic oosition
of the Government of lceland the following sentences may be cited irom the
Government of Iceland's Memorandum on FisheriesJirrisdictionin Iceland
(issued bv the Icelandic Ministrv for Foreirn Anàirs in Februarv 1972 and
;eprodu&d as Enclosure 2 to ~nnex H at6ched to the ~pplicaiion of the
Government of the Federal Republic of Germany instituting proceedings in
this case, pp. 17-18):
"But evenif theconservation problems aresolved, e.g., through reduced
fishi-e effort. the maximum sustainable vield freouentlv is not sufficient
to satisfy the demands and requirements involved. In such cases-
and lceland then provides the obvious example-the requirements of the
coastal State have a orioritv onsitio..
Investigations in lceland have quite clearly shown, that the country
restson a platform or continentalshelf whose outlines follow thoseof the
Coast itself whereuoon the deoths of the real hi-h seas follow. On this
platform invaluahle fishing banks and spawning grounds are found upon
whose preservation the survival of the lcelandic people depends. The
countr;itselfisbarren andalrnost al1necessitieshave 10be imported and
financed through the export of fisheries products. It can truly be said,
that the coastal fishing grounds are the conditio sine qita non of the
Icelandic people for they make the country habitable."
In another pamphlet entitled Iceiand's 50 Miles and the Reasons Why, pub-
lished by the Government of Iceland in February 1973, it is said (p. 5):
"Practically al1 the necessities of life. except fish and dairy products
have to be imported. Furthermore, tools, machinery, fuel, textiles,
household aooliances. semi-durable eoods. automobiles and ~racticallv
~~7
al1 kinds of mechani& appliances as ii~eflas other necessitfes of lif;
are bought from abroad. Being literally a one-industry State, lceland
hasto pay forall theseimports by the revenuefrom the export of fish and
fish products, which for the larger part of this century have amounted to
over 80% of Iceland's total exports. Clearly, to deprive Iceland of the
resources of the sea would inean the collapse of the Icelandic economy.
But there are several other economic factors which make Iceland's case
for conservation, preferential right to the marine resources, rational
utilizationof fish stocks, and extension of the fishery limit, a special case. NoStatescomeanywherenearlceland in theirdependenceon fishand
fish products of the earnings of foreignexchange. This is clearly demon-
strated by the fact that fish and fish products make up over 80% of
Iceland's exports ..."
2. At a Ministerial Meeting of the North-East Atlantic Fisheries Commis-
sion in Moscow on 15 December 1971,the Minister for Fisheries oflceland
stated quite bluntly that it was necessary for Iceland to secure for lceland a
larger part of the catches for economic reasons (cited in the aforenientioned
Icelandic Memorandum Fisheries Jlirisdicfiotr in Icelanp. 35):
"The population of Our country is increasing. Therefore, we mus1
increase Our national income if we are to keep in step with other nations
in the inatter of standard of living and economic security. Only five
years ago, fifty percent. of the total of fishproducts exported by lceland
consisted of herring products. Now the Atlanto-Scandian herring stock,
on which nearly al1 the herring fisheries were based, has totally dis-
appeared. The consequences of overfishing this herring stock have
weighed very hedvily upon our economy. As herring fishing in Our waters
is now practically nonexistent, we have in an increasing nieasure turned
Our herring fishing vessels Io other fisheries. And we are now in the
process of enlarging Our trawler fleet greatly. This is an inevitable
econoiiiic necessity. For us there exist no other possibilities. For this
reason the fishing effort directed by the Icelanders to the cod stock and
other demersal fish stock is being intensified, while at the sanie time the
number of foreign fishing vessels on our grounds continues to increase.
Foreign i'essels have been taking about fifty per cent. of the total catch
of demersal species obtained annually on the Icelandic fishing grounds,
or a share eaual to Our own. Lnthe oninion of our marine biolonists an
increase of the fishing effort froni what it is now will inevitablylead to
overfishing. These are the reasons underlying the decision to enlarge Our
fisherv iurisdiction to 50 miles. for we must secure for ourselves a lar~er
partifihecatches andsafeguard al the same time the fish stocks arouod
thecountry, on which Oureconomic system rests, against extermination
-
3. While it cannot be denied that at present the economy of lceland rests
priniarily on the fishingindustry, and while it may be equitable that Iceland,
as a coastal State particularly dependent on fishing, should be given some
preferential treatrnentin the waters of the high seas before ils coast, it does
D not necessarily follow froni these considerations that it would also be just
and eqiiitable in presenl or any foreseeable circumstances that lceland
should be perniitted to take al1 the fish for itself to the exclusion of other
nations who over a very long period of years have shared the fishing in these
waters with Iceland and are also economically dependent on the further
utilization of these fishery resources. The legal issue whether and, if so, 10
what extent a coastal State may claim preferential treatment in the utilization
of the fishery resources before its coast will be discussed in Part IV of this
Memorial. In the following paragraphs it shall be examined Io what extent
the economy of lceland depends on the fisheries industry at present and in the
years to come and whether the Government of lceland has established beyond
doubt that lceland will need al1 the fish in the sea area of lceland for the
upkeeping of ifs economy. The Government of the Federal Republic of
Germany contends that this had not been established and that the case of
lceland does no1 rest on a solid ground in this respect. MEMORIAL ON THE MERITS 193
B. The leelandie Economy
4. Despite some inherent disadvantages Iceland's economy has expanded
rather quickly in the post-war years. The fishing industry still plays the key
role in the lcelandic economy and virtually its entire output is exported the
proceedsof which account for the major part of the total value of merchandise
exports (1970: 78 per cent.), but as a result of the development of other
industries the heavy dependence on the fishing industry is lessening. Iceland's
own forecast of the export share of other than fish products expccts an
increase of their share to 37 per cent. in 1974 and 10 44 per cent. in 1980,
thereby reducing the export share of the fishing industry to 67 and 56percent.
respectively.
Sortrce: Iiidnsrriul Dcvelopmei~tPerspeclii,es, lceland 1971.
The dominant position of the fishing industiy and ils orientation has been in
the past a primary source ofeconomic instability (fluctuations in the raies of
growth of the gross national product and inflaiionary pressure) because the
performance and profitability of thefishing industry greatly depend on bio-
lorical factors and on vice develo~ments abroad
5. Setting aride the economic instability caused by the heüvy dependence
on the export-orientedfishingindustry lceland has by the post-war expansion
of its economy attained a high standard of living and is now by any standards
a moderatelyrich nation, acmeasured in ternis of either the usual cconomic
criteria (such as the gross national product per capita) or indicators of the
standard of living of ils people (such as housing, education and welfare,
consumer durables, and so on). Iceland's BrOSSnational product per capita
compared to those of other OECD countries keeps a mid-position and sur-
pÿssed-on the basis of 1970 figures-those of such countries as Austria,
Finland, Ireland, ltaly and the United Kingdom and cornes near Io those
of Belgium and the Netherlands.
Sorrrce: OECD Economic Sitrvcys: Icelo,i</, March 1972.
More important than the gross national product itself is the annual rate of
growth of this economic indicator. It has been estimated by the Governor of
the Central Bank of Icelandthat the rr-ss national oroduct has increased bv
an avcrdgc of 3.7 per ceni pcr annuiil sinse ihc cnclof 1945, a rdtc of grouth
above llii or ihc average (or 0I.CD sounirie'. Indeed. II lhc yelir, of adjust-
iiieni fcilloainr! itic Sccond \Vorlr( \.iree\iluded. thc orcr;cll ratc is~iiu..h
higher and is c?oseto 5 percent. per annumfor the period 1953-1971.In 1970,
Iceland's annual rate of growth of gross national product was 7.9 percent.,
compared to the Federal Rep~iblic's rate of 4.9 per cent. and the OECD's
average rate of 5.1 per cent. Iceland's 1971 growth raie of gross national
product is reported to have been 9 per cent., the highest rate recorded in the
OECD area during that year.
Sorrrce: OECD Ecorromic Sr,ri'eys: Ice/ai>rl, March 1972.
6. Income per capita in Iceland is estimated in 1970 at USS2,200. This
places Iceland among the dozen or so nations in the world's highest income
bracket. Equally, the rate of growth of the national income per head has far .
surpassed the rates of other European States. National income per capita
has risen by about 56 percent. overall in EEC countries during thc period TABLE NO. 4. NATIONAL INCOME (NI)AND CROSS NATIONAL PRODUCT
(GNP) FER CAPITA
At factor cos1(US$)
Percentage
increase
1963-latest
1968 1969 date
United States NI 3,569 3,814 20.1
GNP 3.955 1 (38.5)
EEC NI
GNP
EFTA
GNP
United NI
Kingdom GNP
Norway NI
GNP
Denmark NI
GNP
Sweden NI
GNP
lceland NI
GNP
1 Not available.
2 Estimated by thCovernor ofthe Central Bank of Iceland.
Source: National Accounts; UnitedNationsStatis~icalYearbook1970.
CROSS NATIONAL PRODUCT PER CAPITA OF OECD COUNTRIES (IN
US$)
1970
Austria 1,940 Japan 1,910
Belgiurn 2,670 Luxemburg 2,940
Canada 3,550 Netherlands 2,400
Denmark . 3,200 Norway 2,900
Finland 2,180 Portugal 660
France 2,920 Spain 970
Federal Republic Sweden 3,820
of Gerrnany 3,020 Switzerland 3,260
Greece 950 Turkey 350
lceland 2,290 United Kingdom 2,150
Ireland 1,320 United States 4,850
ltaly 1,700
Sorircr: OECD ~urvey; Iceland, March 1972. MEMORIAL ON THE MERITS 195
1963 to 1969; the overall increase for lceland has been about 73 percent.
despite intermittent downturns in 1967 and 1968 (see table No. 4, p. 194).
7. To quote an inipartial judgment on Iceland's economic standard, the
following conclusions in the OECD's EcotiornicSurvey on Icelond 1972 may
be cited (from p. 45):
"lceland ~s faced with a number of inherent disadvantaa-s. The rane-
of natural resources isrelatively limited, climatic conditions are unfavour-
ableand thecountry islocated at a point remotefrom majorworldmarkets
and suppliers. In addition, the Size of the population, which barety
exceeds 200,000, sets strict limits to the range of industries which can be
economically developed on the basis of an assured domestic market.
Despite these apparent handicaps a comparatively high standard of
living has been attained. Evenafter the severe serbacks of 1967and 1968
when real income levels actually fell in absolute terms, average per
capita GNP has remained nbove the European OECD average. The
distribution of income appears ta be relatively even and high levels of
employment have been maintained during virtually the entire post-war
period. lceland would alsoappear torank highly in terms of othersocial
indicators ofwell-being in a broader sense. Certainly, housing standards
must rank among the highest in the world."
2. ICELAND'D SEPENDENC OEN FISHERIE SND THE NEED FOR
DIVERSIFICATION
8. It is a fact that Iceland's prosperity is at present closely linked to the
vearlysuccesses (and failures) of itsfishing industry. Fish and fishproducts even
now account for about 80 oer cent. of Ïhe total value of her (visible) exoorts
Gd almost 20 percent. of ihe gross national product is directiy relakd Cothe
earnings from fishing. lceland is undoubtedly heavily dependent upon
fisheries as her orincival source of foreian exchanae earninns; and this very
dépendence continue; to create seriousdifficulties for theëconomy of thé
country. But. no doubt, with the dangers of this situation in mind, successive
Governments in lceland have pursued a policy of economic diversification.
As long ago as 1966,even before the major economic blow brought about by
the collapse of the herring fishery, Iceland adopted definite policies and made
specific arrangements for industrial diversification which were considered
majorstepsforward toward lesseningherdependenceupon thefishingindustry.
These policies have been attended with considerable success.
9. Iceland's eeocra~hical location at a ooint where a branch of the Gulf
Slrcam convcr~s iith cold Polar currcnts'has cndowcd the country with nul
only rich fish breeding grounds bill 3lso hçavy precipit~tion whiçh has formcd
the basis of abundant hvdro-electric Dower resources. The country is also
situated in an active volcanic belt providing reserves of geothermal power.
Although at present Iceland isdependent upon the importation of 84 percent.
of her total energy reauirements (of which petroleum oroducts account for
by far the largesf;hari),short and long-teri prospects-are excellent, for her
principal natural energy reserves remain virtually untouched. In broüdening
ihe base of her economy, lceland is making most effective use of these two
vast reserves. With a rather limited domestic market (bath with respect to
demand and availability of funds), she has rightly concentrated on attracting
those export-orientated industries which flourish on cheap and abundant
power. (a) Hydro-ElecfricPower
10. Iceland's water resources provided her in 1972with 94 per cent. of her
electricity requirements, together with practically universal central heating,
and an increasina income from tourism. It has beenestimated that. even at
present levels of ~echnological knowledge, a mere 8 percent. of the economi-
cally exploitable hydroelectric power resources have been tapped. There is
sufficient reserve potential to allow the renerdtion of hydro-electric oower at
cost~ we~l below the economic minima inothercountries-. With the co&oletion. -
of the Burléll projeri this yçar. total hydrs-çlectric pouer putential u,ill have
incre:iscd hs iwer 170pcr cent. Taa plants under i~injiri~ction. iln the Thlorsa.
Tungnaa and ~rauneyjorfoss rivers, are expected Io yield a further 1,700-
1,800 million KW, and further plans under consideration involve the building
of a new installation of equivalent cdpacity Io the Assuan dam project and
oroducine the cheaoest electricitv in the world.
11. ln1966 agreémentswere made with the Alusuisse (Swiss Aluminium
Comoany) for the construction of a smelter al Straunisvik. involving a total
investniek of about $35 million. Exports of smelted aluminium nowmake a
substantial contribution to foreign exchange earnings. In 1970 the value of
exports of aluminium represented over one-eighth of total exports, manu-
factured goods in general accounting for one-sixth of the value of al1exports.
(The capacity of the Straunisvik plant was recently increased, and output
should be doubled by the end of this year.) The feasibility of opening a new
plant in the north of the island is under consideration.
(b) GeorherrnalPower
12. Geothermal energy could provide, il has been estimated. a power
equivdlent to 7 million tons of oil per year but al only one-sixth of the cost
of oil: the 1969 total fuel-oil consum~tion was about 0.43 iiiillion tons.
Experimental plants are already producing electricity at prices competitive
with those of existing hydro-electric power installations. Besides providing
limitless enercv for central heatinp and nlass-houses(Iceland arows a laree
amount of hochouse fruits, despitebeingciose Io the ~rctic circlel), geothermal
power has now been harnessed for the diatomite industry al Lake Myvatn.
Amonast the oroiects now under discussion in lceland is that for a sea-
chernicals ind;stri based on the use of geothermal steam in the Reykjanes
area. A proposed complete project would eventually produce a range of
chemical oroducts includinr salt. macnesium chloride and maanesium metal.
~ost of this project isstill atthe planning stage,but initial studie; on economic
feasibility have been favourdble. The National Research Council, in ils
assessnientof the oossibilities for new'industries, is considerina dcveloonient
of a heavy water plant, also based on geothermal power, a kaweed:based
indostry andan oil refinery. Furtherexpansion isanticipated in the production
of diatomite and fertilisers.
(c) SrnoIl-ScaleI!rrlnsrries
13. Apart from attracting Foreign capital to develop power-hitngry indus-
tries, lccland stands Io gain considerably through the contribution inade by
her smaller-scale traditional industries, in particular skins, wool products,
ccrdniics and mink farming. Relying totally on local raw materials. their net
contribution to exports is relatively high. The Industrial Developnient Fund, MEMORIAL ON THE MERITS 197
set up uhcn Icclïnd joincd EFTA, is providing loani ii)finance thccxp~nsion
and r~tiunîli73Iiun of chirling industries. I~eland's Iighi iiiduiiries nou iiiakç
a variety ofproducts including biscuits, buildingcomponents,cürpets.clothing.
confectionery, furniture, leather goods, margarine, plastics, paint. shoes, ships,
cured skins, soft drinks and textiles
(d) Invisibles
14. Invisible earnings, led by tourism, are also making an appreciable
contribution. Invisible earnings, as a whole, approximately doublcd over
corresponding periods in the years 1969 and 1970, and in 1971 transportation
and travel represented over 23 percent. of total exports of goods and services.
As OECD comments, "the expected expansion of tourisni might lead to
particularly good opportunities for lceland in the next decade".
So~irce(for paras. 8 Io 14): OECD Economic Siirveys: Icelo~rd,March 1972.
15. It has been and still is a sound economic oolicv for lceland Io continue
the policy of economic diversification and to le'sen Chedependence upon the
fishing industry. The OECD Eco~romicSlirvey or1Iceloird 1972 recoinniends
that "irrespective of the outcome of tlie dispute over the fishing limits the
diversification of resources in10 manufacturing remains of the grcatest
importance for a satisfiictory development of the Icelandic econoniy". With
a ~onulation of sliehtlv more than 2ûû.ûûûinhabitants the national financial
reiources available-for.such a policy are naturally limited and greater efforts
should be made to attract foreign capital in order to accelerate the diversifi-
cation inIo ex~ort-orientcd industries on the basis of the still unexnloited and
somehow negiected power resources of the country.
16. It may be recalled here that as early as at the occasion of the setllement
of the dispute relating to the cstablishment by lceland ofa 12-mile exclusive
fisheries zone bv the Exchanee of ~ ~es of 19 lulv 1961. the Government of
the Federal Reiublic of Germany hadoffered teChnicaland economic assis-
tance for "plans for the development and diversification of the basis of the
lcelandic economy".
See paragraph 20 of the Mernorial of the Government of the Federal
Republic of Germany on the question of the jurisdiction of the Court in
this case and the text of the Memorandum handed to the Ambÿssndor of
the Republic of Iceland on 21 July 1961 which has been reproduced in
Annex 1to that Memorial.
For the implenientation of this olkr technical experts of the Federal Republic
of Germany were sent to lceland in order to exaniine the feasibility offurther
exploiting the geothermül and hydro-power reserves of the country. The
experts recommended financial assistance for the building of two additional
Dower stations; the Government of Iceland. however, showed little interest
in sucb develon.ent or. * ~s and nre.erred financial helo f.r the com~letion .
of the exi\tiiig clcctric poarr dirtribuiion iist!vurk (cle~irilic;iiion or diiiïnt
rural ci>mniiiniite\). Thcrcupon the Krcditanrtalt für M'icderarifhiiu(13dnkfor
Reconstruction and Develbpment) of the Federal Republic of Germany
provided for an investment loan of 4 million DM to the Statc Electricity
Authority in lceland for this purpose. No further requests of the Govern-
ment of Iceland for financial and technical help for diversificiifion purposeshave been reported. 1t should, however, be mentioned in this context that
the Federal Republic had always pursued a liberal trade policy with respect
to the import of lcelandic fish products into the Federal Republic of Germany
in order to help lceland in securing sufficient export earnings for its economic
development; the Federal Republic has always advocated the same liberal
trade policy towards lceland in the European Economic Community. ln
1970, the Federal Republic granted a loan of 3 million DM for the building
of the lcelandic fishery research vesse1Bjarni Socrnirndsson.
17. With the notable exception of the Alusuisse Aluminium proiect ai
Siradms\,ik mentioned xbo\e(\ee yïr;l. 1I of this Parr of the ~ciori~l) the
Goveriimeni of Icclsnd, unfc~rtunntely. has shoun a growing rcluclsncc Io
ïrirnci rorelgn ca~ir<il.Tlic OtCD Eonr>m;cS«r6oon Irr~Iutt1972(a1 P. 351
points to thefactthat "the .olic. statement of the new Icelandic ~overnmenf
iays stress on the development of diversification with Icelandic ownership.
The Government's stresson nationalcontrol could imoly difficulties in attrac-
tine forei-.n caoital"
Ï8. It seemsthat the economic policyof the present IceIandicGovernment
concentrates more on the enlargement of the fishing industry than on other
industries. The Minister for Fisheries is reoorted to have stated at the Minis-
terial Mceting of the North-East ~tlantic'~isheries Commission in Moscow
on 15 December 1971 that lceland is now in the process of enlarging its
trawler fleet greatly.
The text of the statement of the Icelandic Minister for Fisheries made on
15 Dcccmber 1971 is reproduced in ihc lcelandic Memorandum F~<hert~s
Ji,nsd~clrr~u;nIrclt~nd, ïrtdcherl ro Annei; H of rhe Appltcîti<in of 5 June
1972instituting proceedings in this case.
There are reDorts that Iceland intends to build UD a new Reet of larae wet-
fish stern trahlers in the range of 440 to 500 GRT; the number on order has
been reported as about 30. This would more than treble the existing Reet of
Tcelandic distant-water wet-fish trawlers. ln view of the fact that the oresent
fishing elïort in the waters around lceland by Iceland and other naiions is
already going to reach the upper limit, if the maximum sustainahle yield is to
be preserved. these new Icelandic trawlers if not merely destined to replace
older types, could enlarge Icelandic catches in this area only at the expense
of other nations, in particular at the expenseof the United Kingdom and the
Federal Republic of Germany who have until now relied on these fishing
grounds to a considerahle extent.
19. 11is understandable that a country does its best to increase thestandard
of living of its population by developing its economic resources where the
highest possible output may be expected, and it is certainly within the com-
petenceof the Republic of Iceland to define the goals of its economic develop-
ment policy, and in particular IO determine the economic sectors into which
the limited financial resources of a small countrv like lceland with 206.000
inhabitants (1971) should be directed. But a couniry should for this puriose
look to those resources which are within the national domain; it cannot claim
resources which belongto thecommon domain ofall nationsandtheutilization
of which ithad shared up till now with other nations. Iceland is not entitled
to claim such resources simply because it needs economic development and
chooses to build its economic deveio~ment on such resources as long as-there
are enough national resources in the country itself which may suitably be
exploited and would, probably, yield a higher, safer and more constant rate of MEMORIAL QS THE MERITS
C. The Dependence of the Federal Republic of Germany on the
Fishing Grounds in the Waters around Iceland
20. The Federal Republic of Germany may be regarded as a "big" State
comoared with Iceland. if measured in terms of the number of ils inhabitants
or it;economic capacity (though there is.not much diFerence between the two
States with respect to their standard of living or their national income per
capita as had been demonstrated earlier). This, however, should no1 create
the wrong impression that the loss ofthe fishing grounds in the waters around
lceland would have no sensible impact on the economy of the Federal
Republic. The economic loss in absolute figures that would result from the
exclusion of German fishing vessels from the fishing grounds within the
50-mile zone around Iceland would at least be equivalent ta, if not even
hieher than the net orofit which might orobablv accrue to the lcelandic econo-
myif thesefishing g;oundswould bëexbloited by the Icelandic fishing industry
alone. The economic consequences for the Federal Republic of Germany
r~~ ~ ~ne from the loss of the fishin~ zrounds around Iceland will beexolained
in more detail in the following p'ragraphs. In this respect the atiention
should be directed (1) 10 the effects on the fishing industry, and (2) ta the
eiïects on the supply of fish in the Federal Republic of Germany.
1. THEEFFECT ON THE FISHINCINDUSTRY OF THE FEDERAL REPUBLIC
OF GERMANY
21. Distant-water fishing is the'most important branch of the fishing
industry of the Federal Republic of Germany. In the year 1971 the distant-
water fishinn fleet of the Federal Reoublic accounted for 70 Dercent. 1345.000t
catch weigh;) of the total landings.(493,000 t catch weightj, representini 269
million DM in value. The distant-water fishing flet of the Federal Republic
of Germanv comorises 94 trawlers istatus of 30 June 1972): 67 of them are
socalled wét(fresh) fish trawlers (443.1084 GRT) and27of ihemareso-called
freezer trawlers (719-2684 GRT). Wet-fish trawlers store the catch on ice;
their range is. therefore. limitedbecause thev cannot keeo their catch fresh
longer than 12 10 14 dais. Freezer trawlers, on the othér hand, are equipped
with deep freezing equipment; their catches are immediately processed and
deep frozen on board; therefore, their range is not limited by the time factor
and they operate mostly in the inore distant fishing grounds of the North-
West Atlantic. The wet-fish trawlers will gradually be replaced by freezer
trawlers: 15 new freezer trawlers are alreadv on order to be readv in 1974.
Tu,enty wet-fish trawlers of an older type have already been tied Üp because
it has heen found unprofitable to keep them in service. All wet-fish trawlers
with sporadic exceptions regularly fish in the waters around Iceland. The
freezer trawlers, tao, fish from time to time in these waters either on their
voyage to and from the more distant fishing grounds in the North-West
Atlantic or when weather conditions or seasonal fluctuations of fishstocksdo
no1 allow fishing in the waters of the North-West Allantic. The distant-water
fishing fleet of the Federal Republic of Germany employs about 4,W
persons; about 3,200 of them serve on board, the remaining 800 on land
,technical and a-ministrative services).
?2. Llyc<tablish!ng 3 50-mllc c~slusiie Fisher) zone Icelînd rvould ci;rl.ide
the tishing vessclr of the Fedcr~l Kcpubli; oTGernidny Tromabout 90 percent.
of their traditional tishinc eroundj in thii3rr.a. l'hc rcmatninc IO Der cent.
- -
of these fishing grounds, which lie heyond the 50-mile limit, would be taosmall to allow distant-water fishing on them, becausesuch fishing depends on
the availability of a chain of interconnecting fishing grounds between which
vessels can move according ta the ever-changing weather conditions and
concentration of fish. In the oractical result. the exclusion of the fishine
vessels of the Federal ~epubli; from a 50-mije zone around Iceland would:
therefore, mean the total loss of these fishing grounds. The fishing fleet of
the Federal Rep~iblic of Germany would no1 beable ta compensate the loss
of the lcelandic fishing grounds by diverting their activities to other fishing
grounds in the oceans.
23. The range of wet-fish trawlers is limited by technical and economic
factors. A shift to more distant grounds would mean longer voyages to and
from home ports and thereby leave conventional wet-fish trawlers with an
unorofitable short oeriod of fishine. because thev cannot keeo their catch
freih longer than li ta 14days. ~he-fishing grounds OREast Greenland which
lie within the reach of wet-fish trawlers, allow only seasonal fishing for a
limited variety of species; an intensification of the fishing effort in this area
would create the danger of over-fishing. The nearer fishing grounds (North
Sea, Faroe Islands, Norwegian Coast) are already exploited by German wet-
fish trawlers. International fishing in these grounds has reached levels at
which an intensification of the fishing effort would result in a reduction of
already low catch rates and would depress the earnings of traditional coastal
fisheries in these arcas.
24. Only frr.czcr traulcr\ coul.i rc.i:h the more J~rtxnt fishing grounds in
ttte S\irth-West Atl~ntic. cg., Weil tirecnldnd. Lsbrlidor. Nr.~iloiiriJland,
Nova Ssùtia. Kcu Enal.ind. Ili~acvcr. freclcr iraaler.i ci>iild h4rJlv tnicnrifv
their operati'ons in the North-West Atlantic because these fishini grounds
are already subject Io quota limitations. The International Commission for
North-West Atlantic Fisheries (ICNAF) has decided on quota regulations
for al1 important species in the North-West Atlantic by which in most areas
the total catch will be limited to the present level or even be reduced. Since
the allocations Io member countries are mainly based on their past perfor-
mance, there will be no prospects for an increased fishing effort in these
waters. In the fishing grounds of the North-E-t Arctic (Norwegian Sea,
Bear Island, Spitzbergen) where difficult weather conditions prevail, catch
rates have continuously fallen in the last years and will continue to fall
(following the Reporrof the Liaison Cornmirtee of [CES ro rhe 10th Meeting
o/ the North-EusrAtla,ttic FisheriesCommission).For this reason only a few
German vessels have fished there in recent years; any intensification of
fishing effort inthese areas would, therefore, not only be ineffective but also
result in a further depression of catch rates below economic levels.
25. The loss of the~ fi~hinu urounds aroiind Iceland would reouire the
immediate withdrawal of the major part of the wet-fish trawlers of théFederal
Republic of Germany from service. These vesselswould probably have to be
scrapped with considerable losses ta their owners before ihey were due for
replacement by the more modern freezer trawlers in the normal course of
development under the modernization programme which is under way.
The loss of the fishine erounds around Iceland would also anèct the existine
possibilities for the ec&omical operation of the freezer trawlers which are
equipped with expensive technical gear and operate at high costs, in sa far as
they have partly been fishing in the waters around lceland~in order ro be fully
utilized. Since the trawler owners are already in a very tight position and
operate at marginal profits, they cannot afford to continue operating their
vessels if they are not fully utilized throughout the year. The premature MEMORlALON THE MERlTS 201
serapping of the wet-fish trawlers and the reduced possibilities for a profitable
utilization of the freezer trawlersmay wellereateacritical financial burden to
the trawler owners and endanger the implementation of the modernization
programme.
26. The witbdrawal of a considerable number of trawlers from service
would have sizeable secondary effects. It is estimated that about 30 percent.
of the persons employed ,on board wet-fish trawlers and a major part of those
employed inthe processing industry based on fresh (wet) fish landings would
lose their jobs. A drastic reduction in the number of trawlers would also
involve lossesfor the supporting and other related industries which, however,
cannot be assessedin accountable figures. All this would particularly affect
the eeonomic situation in those coastal towns such ris Bremerhaven and
Cuxhaven where the fishing industry plays a predominant part.
2. THE EFFECTONTHESUPPLY OF THEGERMANMARKET
27. The catches from the fishing grounds around lceland accounted for
about 60 to 70 per cent. (estimates for 1971: 62 per cent.; for 1972: 70 per
cent.) of the fresh (wet) fish and for about one-third of the total landings (wet
and frozen fish) by distant-water fishing vessels of the Federal Republic.
This pattern corresponds to that of former years and ma? be illustrated by
table No. 5 (at pp. 202-203) which shows the catches of the German distant
water fishin- fleet from the different fishin. .rounds since 1885. The main
spezies caught b) the fi<hing ve\irlrdf the re<lerlil Kcpiibli:in [lie u.iters
liraund 1:cl;iir.i are redliih. ,sith<. :.>J ~ttd h:i,lJii;k: rcdtiih 2ndp\A!taie
nrcdcilii niiit rtile. T.iho. h (.ini, ?OJ.?U5j>li.>\rsthe tot.11I.x~i.iin<,<ifthe
different species in harbours ofthe'federal Republic in 1968 and théfishing
grounds from where they have been taken. Table No. 7 (al p. 205) shows
the catches of demersal fish by German fishing vessels in 1971 by fishing
grounds; 34.9 percent. of al1demersal catches came from the ICES "Iceland
Area" in this year.
28. The market for fish in the Federal Republic of Germany is charac-
terized hy a high demand for fresh fish, particularly redfish and saithe which
are mainly caught in the fishing grounds around Iceland. In 1971the demand
for fresh fish was met to 50 per cent. by the trawler fleet of the Federal
Republic; landings by forcign vesselsand other imports of fresh fish accoun-
ted only for 20 percent. The reniaining 30 percent. were supplied by the sniall
boat and coastal fisheries mainlv from the North Sea.The deficit in the SUDD~Y
of fresh (wet) fish which would be caused by the loss of the fishing grounds
around Iceland, especially the deficit in the supply of high quality fish cannot
easily, if at all, be eonipensated by imports from other sources, neither in
quantity nor in quality. The Icelandic trawler fleet has neither the capacity
to meet this demand nor the orientation to this type of demand because the
Icelandic fishing industry concentrates mainly on frozen products, especially
for the enport to the United States and the Soviet Union. In the pas1the land-
ings of fresh fish by lcelandic trawlers in German ports were very low (1970:
25,000 t, 1971: 10,700 t, 1972: 11,400 t) in comparison with the fresh fish
landings by German trawlers (1971: 125,700t).
This situation would result in a sensible shortage of fresh fish and conse-
quently in a rise of fresh fish prices in the German market. Moreover, the
heavy dependence on imports resulting therefrom would place an additional
burden on the econoniy of the Federal Republic and would deprive the
poorer classesof the population of a cheap food supply. TABLE NO. 5. TOTAL CATCHESOF THE GERMAN HlGH SEAS FISHING FLEETBY FISHING GROUNDS FROM 1885 TO 1971 N
.-
1. Demersal Fish (in metric tons on 5-year average~)
1885 1889 1894 1899 1904 1909 1919 1924 1929 1934 1950 1955 1960 1965 19691
Fishing grounds IO 10 IO IO IO 10 IO Io 10 IO IO 10 IO IO IO
1888 1893 1898 1903 1908 1913 1923 1928 1933 1938 1954 1959 1964 1968 1971
Southem/Central
North Sea 1.200 8,300 14,700 6,500 9.500 10,400 15,300 4,200 800 100 - - - - -
Skagerrak - 2,603 10,500 18,W 25,800 20,200 18,900 10,300 3,900 800 - - - - -
Norlhern North Sea ' - - 100 ,100 1,000 10,5002,400 16,800 14,900 23.500 12,200 7.W - - - Z
Iceland - - 1,000 9,500 17;80029,700 31.700 64,100 83,800 99,900 66,800 125,400 106,500 108,900 115,938 m
T!
Barents.Sea - --- 300 3,600 100 18,900 38,700 40,700 19,900 8,800 1,000 200 2,753 y:
Bear Islands/ -
Spitzbergen
Narwegian Sea -
Faroë Islands -
Greenland -
Labrador -
Newfoundland -
Nova Scolia -
South Africa West coast -
South Africa East coast -
Total 1,200 10,900 26,300 34,100 54,400 74.40088.400 114,300 153,900 260,900 258,800 310,200 330.400 338,300 290,400
1 1969-1971: 3-year averages. TABLE NO. 5 (~0llf.TOTAL CATCHESOF THE GERMAN HIOH SEAS FISHINO FLEETBY FlSHlNG GROUNDS FROM 1885 TO 1971
2. Herring (in merric tons on5-year averages)
1885 1889 1894 1899 1904 1909 1919 1924 1929 1934 1950 1955 1960 1965 1969I
Fishing grounds -10 10 to to 'Io Io to to 10 to to 10 to to to
1888 1893 1898 1903 1908 1913 1923 1928 19331938 1954 1959 1964 1968 1971
W
North Sea ----- - 13,400 38,600 82,700 148,100159,300140,20037,700 13,000 882 0
EnglishChannel - - - - - - - - - - 41:700 19,900 500 - 426 $
- - - 6,900 6,200 12.700 12,906 z
West British Waters - - - - - - - -
Far& Islands - - - - - - - - - - - - - 100 - -l
Iceland - - - - - - - - - - - - - 10,100 - s
--- ----- - - - - -
Norwegian Sea 1,800 - z
Nova Scotia - - - - - - - - - - - - - 2,M)O 8,703 t!
New England - - - - - - - - - - - - - 21,200 69,434
New Jersey - - - - - - - - - - - - - 100 74
- - - - - - 13,40038,600 82,700 148,100 201,000 164 6,0000 61.W 92,425
Total
N
1 1969-1971 : 3-yearaverage. 2 FISHERIESJURlSDlCTlON
TABLE NO. 6. TOTAL LANDINGS IN HARBOURS OF THE FEDERAL
REPUBLIC OF GERMANY BY IMPORTANT SPECIES AND BY
FlSHlNG GROUNDS 1968
Fishing Her- Cod Had- Saithe Red- Shell- Others Total
Grounds ring dock fish fish
(Catch weight in metric tons)
North Sea 27,100 33,977 2,226 6,100 22 33,798 52,012 155,245
West British
Waters 16,627 117 97 503 - - 708 18,052
Skagerrak - 107 9 5 - 65 104 290
Baltic Sea 16,362 14,132 O 5 - 35 4,609 35,143
Faroe Islands 279 1,180 31 7,532 6,613 - 2,914 18,549
Iceland 862 29,612 2,616 17,187 60,828 - 8,810 119,915
NorwegianSea 721 1,112 1,933 4,597 3,245 - 160 11,768
Greenland - 135,320 25 239 26,761 - 2,165 164,510
Labrador - 52,370 1 2 315 - 571 53,259
Nova Scotia 10,555 - - O - - 2 10,557
New England 68,148 - - 4 - - 138 68,290
New Jersey 413 - - - - 2 415
South Africa
West coast - - - - - 3,334 3,334
Total 141,077 267,927 6,938 36,174 97,784 33,898'75,529 659,327
(Percentage oj Catches hy Fïshing Grortnds)
North Sea 19.2 12.7 3.2 16.9 O 99.7 68.9 23.5
West British
Waters 11.8 O 0.1 1.4 - -. 0.9 2.7
Skagerrak - O O O 0.2 0.1 O
Baltic Sea 11.6 5.3 O O - 0.1 6.1 5.3
Faroe Islands 0.2 0.4 0.1 20.8 6.8 - 3.8 2.8
Icelind 0.6 11.1 3.8 47.5 62.2 - 11.7 18.2
Norwegian Sea 0.5 0.4 2.8 12.7 3.3 - 0.2 1.8
Greenland - .50.5 O 0.7 27.4 - 2.9 25.0
Labrador - 19.6 O O 0.3 - 0.8 8.1 '
Nova Scotia 7.5 - - O - - O 1.6
New England 48.3 - - O - 0.2 10.4
New Jersey 0.3 - - - - - O O.1
> South Africa
West coast - - - - - - 4.4 0.5
Total 100 100 100 100 100 100 100 100 MEMORIAL ON THE MERlTS
TABLE NO.6 (concl.)
Fishing Her- Cod Had- Saithe Red- Shell- Others Total
Grounds ring dock fish fish
(Percefrtageof Catchesby Species)
North Sea
West British
Waters
Skagerrak
Baltic Sea
Faroe lslands
Iceland
Norwegian Sea
Greenland
Labrador
Nova Scotia
Nea. England
New Jersey
South Africa
West Coast
Total 21.4 40.6 1.1 5.5 14.8 5.1 11.5 100
TABLE NO. 7. CATCHES OF DEMERSAL FlSH BY FlSHlNG VESSELS Of
THE FEDERAL REPUBLIC OF GERMANY BY FlSHlNG GROUNDS 1971
Qiranrityin Percenlagr of roral
IO0 metric tons demersalcorches
Barents Sea 2.5 0.7
Bear Island/Spitzbergen 5.7 1.6
Norwegian Coast 17.5 4.9
Faroe Islands 6.7 1.9
Iceland 123.6 34.9
East Greenland
43.0 12.2
West Greenland 41.5 11.7
Labrador 19.2 5.4
Newfoundland 11.5 3.2
New England 0.6 0.2
North Sea + Baltic Sea 82.1 23.3 D. Evaluation of the Conflicting EcoriomicInterests of Both Parties
29. The Government of lceland conterids that the earnings of the fishing
industry of the Federai Republic of Germany constitute only a very small
fraction of the gross national product of the Federal Republic, while for
lceland the fishing industry accounts for about 16 per cent. of ils gross
national product and for about 80 per cent. of its export earnings (this
figure has, however, to be adjusted to 49.5 per cent. (1971) if invisible ex-
ports such as earninas-from international transport. orimarilv trans-atlantic
passcnger air traiiic. arc inciudcd,. Silrh:iprcscniaiion of the facts. howe\.cr,
is mi4eading and ciilrul~tcd to nbscurc the reiil issue. Nobody will deny the
extraordinary~.ependence of Iceland's trade balance on exoorts of fish and
fi>hproducii. Houcver. the diffcrent degrce of depcndcnce o'fhoih cnuntries'
cconomy on thc fishing indusiry i, not an nppropriaie yardstick for measuring
the value or importance of the interests of the Federal Re~ublic of Germanv
which are affected by the lcelandic action. The real picture of the conflicting
interests in the present case is rather the following:
30. The economic interests of both Parties which are at stake in this case,
present themselves to a neutral observer in the following way:
(ai lceland is a vrosperous, not an under-developed State. lceland is in its
economy, paitic"larly with respect IO ils exports, still heavily dependent
on the fishing industry, bu! makes progress in diversifying its economy.
lceland takes a predominant share of the catch in the waters around
Iceland; il takes on the average more than 50 percent. of the total catch
of demersal species in the ICES lceland Area (1971: 52%); lceland takes
nearly al1the catch of pelagic fish (herring, capelin) in the ICES Iceland
Area (1970 and 1971: 100 per cent. of the herring and capelin catch);
lceland takes about Iwo-thirds (1970: 66%; 1971: 61 %) of the total
catch of al1 species in the ICES lceland Area. Iceland's shares in the
total catches and ~n~ ~~ catches of dermersal soecies durine the-vea~ ~ ~
1960to 1971are lisiedin tables~os. 8 and9 al p. 202). 1celand'sp;esent
share is no1 disputed. but the Government of lceland wants to increase
its catch (rom ChelCES lceland Area and to exoand ils fishineindus-rv
for export purposes.
(b) The Federal Republic of Germany has built up a distant-water fishing
fleetmainlv for securine the necessarv suovlv of fresh fish for national
consumption because the fishing grouids beiore German coasts do not
yield enough to satisfy the demand of ils large population. Exports of
fish products for which mainly imported herring isuied, are of secondary
importance. Within thelast decade thedeep-sea fishingfleet ofthe Federal
Republic which is dependent on distant fishing grounds, has taken more
than 60-70 percent. of ifs fresh fish landings andahout one-third of al1
ifs catches (fresh and frozen) from the fishing grounds around Iceland,
but this represents only a share of about 16-17 per cent. of the total
catch of demcrsal soecies and about 12ver cent. of the total catch of al1
species in the ICES lceland Area compared with Iceland's share of 52
and 60 percent. respectively. The Federal Republic of Germany merely
wants to meserve its riaht to take the same amount of fish as hitherto
from the ICES lceiand~rea (120,000 1 in the average during the years
1960-1971)or at least the same percentage of the total catch of demersal
species from that area if agreed catch limitations would reduce the total
allowable catch from this area. MEMORIAL ON THE MERITS 207
(in 1,000 tons)
Total Iceland %
1960 985 542 55
1961 1,142 676 59
1962 1,365 818 60
1963 1,245 758 61
1964 1,399 951 68
1965 1,418 . 1,005 71
1966 1,257 880 70
1967 883 502 57
1968 798 468 59
1969 936 638 68
1970 1,028 680 66
i971 996 612 61
Average
1960-1971 1,121
TABLE NO.9. ICELAND'S SHARE IN THE CATCH OF DEMERSAL FISH
IN THE ICES AREA VA1960 TO 1971
(in 1,000 tons).
Average
1960-1971 730208 FISHERIES JURISDICTION
31. The interests of both Parties as analysed in the preceding paragraph,
i.e., the interest of lceland to increase its catches from the fishing grounds
around its Coast and the interest of the Federal Republic to take the same
amount of fish as hitherto from these fishing grounds, had not been irrecon-
cilable in the oast as lo-e as the abundance of fish in this area allowed lceland
an ever-increasing share in these fisheries. However, since under the aspects
of the preservation of fish stocks the amount of allowable catch has reached
its hm%.at least with resoect to one of the most im~ortant soecies caught in
this are; (cod), but probably also with respect to oihers, the problem of the
equitable distribution of the available resources has appeared. Whatever may
be said in suooort of takine more effective and morë drastic conservation
measures (se; 'Part II of thys Memorial) is not relevant here becduse such
measures have to be applied indiscriminately and do not per se justify a
redistribution of the available resources. Thus the real issue in the present case
is the claim by Iceland to be entitled to take over the present shares of the
United Kingdom and of the Federal Republic of Germany in the fisheries
around Iceland for its own economic benefit, because, in view of the limits
set by the needs for the preservation of fish stocks, the catch can only be
increased at the expense of the other nations which have fished in the same
waters.
32. Thus, the case hefore the Court is in reality a case for the equitable
distribution of fishery resources. The Federal Republic of Germany contends
that, in law, Iceland is not entitled to claim al1 the fish in the waters of the
high seas around Iceland. Whatever may be the law with respect to a preferen-
tial right of the coastal State in the exploitation of the fishing grounds before
ils coasi which will be discussed in Part IV of this Memorial, it should be
noted here that Iceland has already, by taking nearly two-thirds of the total
catch in ICES lceland Area, secured for itself a preferential position of
considerable weiaht in view of the vield of about 1 million metric tons (1971)
in this area. ~ef&e making claims ior a higher preferential rate at theexpense
of the other nations which depend on the same resources, Iceland should
first establish that such claim is not onlv advantaaeous for the lcelandic
economy, but also really indispensable and the only Gay for Iceland's further
economic development. As it is the Government of Iceland which wants a
redistribution of the fisherv resources amona the nations which have UP till
now shared these resource;, it is for the ~ovërnment of Iceland to provethat
such a situation exists. But the Government of Iceland has not been able to .
prove the existence of such a situation MEMORIAL ON THE MERITS
PART IV
THE LAW RELATING TO FlSHERlES JURlSDlCTION
A. The General Perspectives of the Law Relating to the Fishery
Resourees of the Oceans
1. This part of the Memorial concerns itself with the rules of law that are
relevant to claims by coastal States ta exercise fisheriesjurisdiction in waters
adjacent to their coasts.
2. 11 is a long-established and universally recognized principle of inter-
national law that the waters of the high seas are open ta the comrnon use by
al1nations, in particular for the purpose of navigation and fishing. Article 2
of the Convention on the High Seas which, according to ifs preamble, had
been adopted by the Geneva Conference on the Law of the Sea as being de-
ciaratory of established principles of international law, states that
"
Freedom of the high seas.. . comprises, inter alia, bothforcoastal
and non-coastal States-
(1) Freedom of navigation;
(2) Freedom of fishing;
(3) ..."
Article I of the Convention on Fishing and Conservation of the Living
Resources of the High Seas, done at Geneva on 29 April 1958, states in ils
Article 1, the substance of which had not been controversial at the Geneva
Conference on the Law of the Sea:
"1. Ail States have the right for their nationals ta engage in fishing
on the high seas, subject (a) to their treaty obligations,(b) ta the inter-
ests and rights of coastai States as provided for in this Convention, and
(c) ta the provisions contained in the following articles concerning
conservation of the living resources of the high seas.
2. ..."
Whether the fisheryresources in the waters of the high seas should juridically
be qualified as res commrinis (common property or common patrimony) in
the utilization of which each member of the international communitv is
cniitled to partiike, or whether -from ;imore trad~tional point of view-the
fishery resources should merely he regardcd us the "reneo~ble" fruirs of the
wealih of the hieh seas ivhich niavbe taken bv al1mcmbers of the international
community ex&cising the recohized freedom of fishing on the high seas,
can be left to academic discussion. Whichever of these lines of thought one
would like to follow. there exists unauestionably under international iaw a
right of each State and its nationals'to fish in-the waters of the high seas.
This right, however, is today neither absolute nor unlimited; theright to the
common use of the fisherv resources of the oceans entails the common
responsibility of al1 membeis of the international community taking part in
such use, to exercise their fishing rights in such a way that the fishery resources
are ~reserved and zuarded aaainst any form of over-exploitation which
might lead to their exhauslion. There is today a growing con;ciousness of this
common responsibility and an increasing recognition by al1members of the210 FISHERIESJURlSDlCTlON
international community of the need to take the necessary conservation
measuresfor the preservation of the fish stocks. As it is a common responsi-
bility of al1 members of the international community taking part in the
exploitation of a certain fish stock, and as al1these members are interested
in and al thesame timeaffected by theenactnient ofany conservation measure,
the discharge of this responsibility is priiiiarila matter of international
concern. Consequently the enactment of the necessary measures falls within
the competence of the international community as a whole, or, as long as the
international communitv has not acted hv e.neral treatv or otherwise..of the
States directly interested in the fishing of a certain speciesin a certain area.
This cornmon responsibility had already been reîiected in Article 1, para-
graph (Z),of theCeneva Convention on Fishing and Conservation of the
Living Resourcesof the High Seas:
"All States have the duty to adopt, orto CO-operatewith other States
in adopting, such measures for their respective nationals as may be
necessaryfor the conservation of the living resources of the high seas."
3. The coastal State's claim for a zone of national jurisdiction over the
waters adjacent to ils coast, including the right to the fishery resources within
that zone. hasin principle been recognized by the international community,
althoue- the outer limit of such a zone has reiiiained controversial. The
controversies with respect to the borderline between national and inter-
nationaljurisdiction reflect not only conflicts hetween national interests, e.g.,
between States which are enza-ed-in distant water fishine. and States which
are concentrating on coastal fishing, but also, if not prikarily, the conflict
between the interests of the international community as a whole and those of
the national State. State practice has shown a tendency, which has been
accentuated in recent lime, to extend the zone of national jurisdiction of the
coastal State farther out into the sea, but this practice developed for Iwo
distinct purposes:
(a) for enacting and enforcing conservation measuresfor the preservation of
the fishery resources on which the coastal State's fishing industry relies
(conservation aspect);
(b) for reserving the fishery resources near the coast tu the exclusive or
preferential exploitation by the nationals of the coastal State, in parti-
cular for the benefit of the coastal fishery (utilization aspect).
These two aspects of the claims for extended zones of maritime jurisdiction
should be clearly distinauished when the lecitimacv of such claims is to be
examined. ~i~erent coisiderations apply whethe; a claim for extended
jurisdiction is assertedfor the purpose of conservation or for the purpose of
national utilization of the resources: considerations \\.hich niüy justifya
.. .
claim for extendedjurisdiction on grou'ndsof conservation do not necessarily
support a claim for extended rights of exclusive national exploitation of the
fishery resources and vice versa. While it may under certain conditions be
conceded that the coastal State should have the rieht to enact and enforce
conservation measuresfor the preservation of the f;s sthcks hefore its coast
~fthe necessaryInternationalaction for this purpose is not forthcoming, such
a situation dues not iuso focro orovide aiusfification for a claim of the
coastal State for a preferential& excl~sive~ri~ht to such fishing resources.
As al1nations have, in principle, equal rights with respect to the utilization of
the fishery resources of the oceani, a claim by the coastal State for a wider
fisheries zone (whether preferential or exclusive) is in reality a claim for a MEMORIAL ON THE MERITS . 211
re-aonortionment of the availableresources of the oceans which wnuld reauire
.. ~ ~ ~ ~ ~ ~ ~ ~ .~ .~~~~-
special justilication. cg., the ipeci;il dcpcndence oi the coliitiil population on
the coastsl lisherics for thcir .iveliti~iorl.Such a re-allocation of internatlonal
resources must he based on an international consensus having regard to al1
interests involved; unilateral action by the coastal State is a one-sided, not an
equitablc solution of the re-allocation problem.
B. Historical Analysis
1. THENORTH SEAFISHERIEC SONVENTIO OF 1882
4. For the purposc of the prewrit cÿsc it Joes not sccm ncccsrÿry IO rct ieu
in dctsil the historical dcvelopnieiii i)f thr' rccognitiun of the codst31 Statc's
jurisdiction over the sea adjacent to its coast. It is common knowledge that
claims for exclusive fisherv riehts in the coastal zone nlaved a considerable
part in the maritime dispuies rthe~l7th and 18thcent;ryand hahavet,ogether
with the claim by neutral States that their coastal waters be protected against
cantures in nrize. contributed to the formation of the conceot of the territorial
se; @verwhich ;he coaslal State has exclusive jurisdictikn in al1 respects.
Although claims for exclusive fishery rights and for neutrality limits generated
from different interests and the width of such zones claimed were by no
means always identical, eventually a merger of both neutrality limits and
fishery limits into a common limit based on distance was achieved during
the 18thcenturv.Ahout 1800the three-mile limit had become the limit aenerallv
accepted amoig the major European Powers for the coastal ~1ate's'jurisdi;-
tion over the waters hefore its coast. Nevertheless, claims for more than three
miles were maintained on historical grounds, at least for fishery purposes.
5. The most significant action by the European States in applying the
established three-mile limit of the territorial sea to fisheries u.as theconclusion
of the Convention for Regulating the Police of the North Sea Fisheries on
6 May 1882 (Martens Nouveau Reciceil Généralde Traités, 2' série, vol. 9,
p. 556). The reason for concluding this Convention was no1 so much the
three-mile limit which was uncontroversial between the signatory States.
The purpose of the Convention was rather to prevent disputes that had arisen
between the North Sea States partly from the uncertainty concerning the
rules which should be applied to bays, islands, islets, and sand banks in
delimiting the territorial sea; partly from the difficulty of policing fishery
operations; and partly, particularly towards the end of the century, from-the
difficulties that occurred in carrying on trawling and drift-net fishing in the
same localities at the same time.
6. In order to avoid or reduce these disputes and at the instance of the
Government of the Netherlands, a Conference of the North Sea Powers was
convened at The Hague in 1881. It drew up the Convention for Regulating
the Police of the North Sea Fisheries which was signed by representatives of
the United Kingdom, Belgium, Denmark, France, Germany and the Nether-
lands on 6 Mav 1882. Its obiect was to reaulate the fisheries in the North Sea
-
oi,r,idr tcrritnrial %aiers. It mas therelore necessslir) Io dcfine the se3 areas
outside uhich ifshould apply in prrcisç ternis and this u,a5done in Articlc II.
That Articlc rcîds (in an Ene-ish tran$lation of the authoritative French text)
as follows:
"The fishermen of each countrv shall eniov the exclusive riaht of
'fishery within the distance of fhree hiles frok lkw-water mark al&g the
whole extent of the coasts of their respective countries, as well as of the212 FISHERIES JURISDICTION
deoendentislands and banks. As reeards bavs. the distance of three miles
shall be measured from a straight cno drawn across the bay, in the part
nearest the entrance, at the first point where the width does not exceed
10 miles. The present Articleshall not in any way prejudice the freedom
of navigation and anchorage in territorial waters accorded to fishing
boats, provided they conform to the special police regulations enacted
by the Powers to whom the shore belongs."
The area to which the Convention aoolied was. under Article IV. bounded
on the North by the parallel of the 6i;tdogree of latitude and thu; excluded
the ocean surrounding the Faroe lslands and lceland. The régimeof the 1882
Convention was, however, extended to the waters around lceland and the
Faroe Islands by the Convention between Denmark and the United Kingdom
of 24 June 1901which has already been cited above (Part 1of this Memorial,
para. 10). The Government of the United Kingdom of,Sweden and Norway
decided not to adhere to the Convention although a special article of the
Convention provided that il might do so for both countries or for either
country. One of the principal reasonsappeared to have been the opposition of
Sweden and Norway, which both claimed a four-mile limit on historic
grounds, to the three-mile limit provided for in the convention.
2. THE DEVELOPMEN TP TO 1945
7. Sincethe beginning of the present century, therefore, it seemed to be a
very wide-though not universal-acceptance that the extent of a coastal
State's fisheriesjurisdictionwas limited. broadly speaking, to a distance of
three miles from its coast. For the most part, this was not conceived as a
separate fisheries jurisdictionlimit but rather as an incident of the coastal
State's total jurisdiction over its territorsea.
8. At this time there were four main practical purposes for which States
claimed jurisdiction over the waters before their coasts. These were:
(a) the need to regulate navigation, including the exercise of criminal juris-
diction in collision cases;
(b) the need to regulate and protecl coastal fisheries;
Ic) the need to preserve neutrality in time of war;
and
(d) the nced to prevent smuggling.
Other needshave since arisen, such as pollution control and the exploitation
of the continental shelf. but they were not yet present in the maritime ~ractice
at that time. The practical considerations affecting these four purpoies were
oot the same in every case, and very early the view had been put forward
that a more satisfactory régime would authorize jurisdiction to beexercised
over different distances from the coast for differentjurisdictional purposes.
Reference may be made in this respect to proposals put forward in the
Geneva session (1892) and Paris session (1894) of the lnstitut de Droit
International (Annriaire, vol. 12.pp. 104-105; vol. 13,pp. 125-161,281-331)
and the Conference of the International Law Association in Brussels 1895
(Report of the 17th Conference, pp. 102-109).
8. Although the idea of a wider and separatesystem of fisheriesjurisdiction
was thus present in the minds of somejurists in this period, it advanced very
little in the course of the first three decadesof the 20th century and no sub- MEMORtALON THE MERtTS 213
stantial reflection of itcan be found in State practice. The claims for a wider
jurisdictional limit, as distinguished from the territorial sea as such, concen-
trated rather on neutrality lirnits and, to an increasing extent, on customs,
fiscal, and similar matters (including the enforcement of national alcoholic
liquor prohibition legislation as practised by the United States of America).
9. The only international conference of importance convened in this period
that was concerned with general questions of maritime jurisdiction. was the
Conference for the Codification of International Law which met at The Hague
between 13 March 1930 and 12 April 1930. The Assembly of the League of
Nations had decided that the topic of "Territorial Waters" was "ripe" for
discussion and should be included in the Agenda of the Conference. Accord-
inelv. there was much discussion of the tooic of the territorial sea. but no
dist discussion of fisheries jurisdiction as'a separate topic. ~isheries juris-
diction received attention only as an aspect of the coastal State:s jurisdiction
over the territorial sea. At the Conference the oroo. .l was made of estab-
lishing a three-mile limit as a maximum for al1purposes, but there were some
States which obiected and were in favour of not fixing a uniform distance for
al1 .uroo.es and f~ ~~il cou~~ries. T~ventv States. comorisine Germanv and
Ïhe IJnited Kingdom PavoureJ threc mile;; four of the'Sc3ndinn\,i.in ~taiei.
Noru,ay. Siiedcn. Finlxnd and Iccland cl.i:med fuiir miles on historic erounds
~ ~ ~astfor therns~lves.~but without or. .~~ne them for al1 other countries:
ttreli,c States ï.ivsured six miles. Opinions uere Ji\,iJcd u hether ;is~inliguous
zone bevond the three-mile limit shoiild bcectahli~hed fur cnesial ~urooses. In
the res& no agreement could be reached on the question of ju;isdiction
limits. The Second (Territorial Waters) Committee of the Conference pre-
pared a set of draft articles on the legal status of the territorial sea but no.~e
on the breadth of the territorial sea,and proposed not to adopt a Convention
without this question being solved. The Conference embodied the draft
articles prepared by the Commission in the Final Act of the Conference but
did not take any further action on them. For the purpose of the present caseit
should only be recalled that Article 6 of the draft articles provided that the
jurisdiction on the rights of fishing within the territorial sea belongs to the
coastal State.
10. Although the Haguc Conference on the Codification of Intcrnation31
I.aw did not specifically deal \ritli fishcriesit should net be omitred that the
Delegation of~lceland tabled a draft resolution together with a commentary
which called attention to the desirability of research and conservatory
regulations beyond the three-mile limit. The draft resolution was worded as
follows:
"The Conference calls attention to the desirability of the States in-
terested e-vine-.vmoat.etic consideration to a reauest ïrom a coastal
State to assist or participate in scientific researchesregarding the supply
of fish in the sea and the means of protecting fry in certain local areas
of the sea. and. further. to the desikabilitv of their efectivelv carrvine
.
out any proposlils resulting from such reiearches and designcd 10 enrure
the international repulation i>f fishinpor restrictions on the uie of certain
fishin- a. Tiances in the areasconcerned." (Acts oftheconference for the
Codification of International Law, held at 'The Hague from March 13th
to Aoril 12th 1930. Vol. III, Meerinm of the Commirrees. Minutes of the
Second Committee, Territorial ~aters;at p. 142.)
The reasons given by the Icelandic Delegation for this move were the fol-
lowing: "ln the las1thirty years, the useof dredging fishing tackle-especially
the trawl-has increased very much in some places; for example, on
fishing grounds in the seaaround thc coasts of Icëland. In the opinions
of many persons, the use of such appliances has a peculiarly injurious
effect, not only within the limits of the territory where ils use is for-
bidden by several or most States, but also in certain areas outside these
limits, especially where the fry lives. The view is taken that the fry is
destroyed in enormous quantifies. and also rhat the conditions of exis-
tence of the fry are adversely affected or ruined in those areas by the
continual dredging. Without giving a yield worth mentioning ta the
fishing vessels,the stock of fish in the seais liable ta be much reduced on
other neighbouring fishing grounds owing to the same cause.
lt is of increasing importance to examine, on an entirely scientific
basis, the general questions of the effects offishing with dredging tackle
in the said areas on the reduction in the supply of fish and on the future
possibilities of improving fishing. Those researches have already been \
started. inter alia. on some arounds in the seaaround Iceland. where the
fishing is more 8niern;itionaÏ [han in mirny other pl~ccs, and ihey niight
gaveresults u,ithin a period uf sume )cars.
As thisquesiion is of international intercst and as itrnicht be a subject
for consideration ~ ~t~~- the rul~s ~o~-~ontrolline fish-rks in territor~a~
waters could not be extended ta certain areas outside these limits, the
Icelandic Government thinks it reasonable that.the Conference should
make a recommendation as proposed above, in connection with the
international legal rules for territorial waters" (ibid., at pp. 188-189).
II. In the period between the Hague Codification Conference of 1930and
the end of the Second World War there were no major attempts, comparable
to the Conference itself, ta effect fundamental changes in the law, either in
relation to the territorial sea in eeneral or in relation Io the establishment of
separate zones ofjurisdiction for particular purposes, and specifically for the
regulation of fisheries. State practice during this period reflects the uncer-
tainty on bath these matters.
12: There ucre no rnultil>ieral instruments in this pcriod *,hich throw any
light on the nttituJc of StJtes chcept pcrhaps the Dcclar3tron of Panama of
1939 (34 AJII. (19401. Surinlement. D. 17) in uhiih s numher <if.American
Siate.: purportçd io esiabliih uhai ue;e in etïect neuirdlii), Iiniits exiend:ng to
300mile, from the co3sis of the contincni. This aas eirCcti\.~Iy ignorerl by aII
States who were actually engaged in the hostilities.There were, however. two
bilateral treaties in the field of fisheries itself which deserve mention. An
agreement between Denmark and Sweden. which was concluded on 31 De-
cemher 1932. regarding fishing in the waters bordering those two countries
provided for a general limit of "three minutes of latitude" (i.e., three nautical
miles) from the Coast of each country (United Nations Legislalive Series
ST/LEG/SER. B/6, p. 794). A treaty between Iran and the USSR which was
concluded on 27 Aiieust 1935 (ibid.. o. 794). ..o.ided in Article 15 for an
exclusive fisheries zone of ten nàuticalmiles.
13. So far as concerns national legislafion, there were a few examples
during this period of countries which purported to exercise fisheries juris-
diction, of one sort or another, as far out as 12 nautical miles (e.g., Brazil,
by a Decree Law No. 794 of 19 October 1938; Ecuador, by Regulations of
2 February 1938; and the USSR, by Regulations of 25 September 1935) or
20 kilometres (e.g., France, by a Decree in 1936).But most countries appeared MEMORIALON THE MERITS 215
to assert no more than the traditional three miles or. in some cases where
there were special historic claims (e.g., Spain), six miles.
14. In general, therefore, there were no spectacular moves in the develop-
ment of maritime law in the period immediately preceding and during the
Second World War. Nevertheless. the idea of a senarate fisheries iurisdiction.
going somewhat wider than the territorial sea(though rarely, ifit all, more
than about 12 nautical miles from the coast), was gaining some ground.
3. THE DEVELOPMEN T STWEF.N 1945 ANDTHE GENEVACONFERENCE
OF 1958
15. Immediately alter the War the question of the coastal State's juris-
diction over the seabed and subsoil adjacent to its coast came into promi-
nence, primarily because of the technological developments which were
making the exploitation of the resources of the seabed and subsoil a prectical
operation of ever-increasing importance. In the legal field the process received
a considerable impetus from the so-called "Truman Proclamation" of 28
September 1945, which declared, inter alio, that "the Government of the
United States of America regards the natural resources of the subsoil and
seabed of the continental shelf beneath the high seas but contiguous to the
coasts of the United States as appcrtaining to the United States, subject to ils
jurisdictionand control", but added that "the character as high seas of the
waters ahove the continental shelf and the right to their free and unimpeded
navigation are in no way thus affected".
Bullerin of the üS Deportmeirr of Srure, Vol. XIII, Nr. 327, 30 Sep-
tember 1945, p. 485. Proclamation No. 2667, 10 U.S. Federal Register
12303.
The history of the development of the law relating to the continental shelf is
not. of course. directlv relevant to the nresent case. But it does illustrate the
fact that, sfa ;s resources of the waters superjacent to thecontinental shelf
are concerned, a clear distinction emerged hetween, on the one hand. those
resources which could be regarded as part of the continental shelf (i.e., the
so-called sedentary species) and which, therefore, are governed by the same
legal régime as the shelf in such matters as rights ofjurisdictand exclusive
exploitation and. on the other hand those resources which were not thus
intimately linked with the continental shelf, in particulardemersal and
pelagic fish. It may be pointed out that the Truman Proclamation itself
referred only to "natural resources" and it seemsreasonably clear from the
circumstances under which it was issued that it was meant to apply primarily
to mineral resources.
16. This was put beyond doubt by the fact that on the same 28 September
1945. President Truman issu~-~another Proclamation entitled "Policv of the
~nited ~taiej nith Kespect io ~oistïl Fisheriei in Ceriain Arcaî of the Hngh
Sca5". Afrer riferring to ihe inadequdcy of prewnt arrangements for the
proieciion and preservation (if the fishery resources coniiguous to the coabts
of the United Ststc, and rhc urgcnt need ro protect coÿsial fishery resource,
froni destructive exploit~tion. ihe operative passagenf ihe Proclamation went
on as follows:
"ln view of the pressing need for conservation and protection of
fishery resources, the Government of the United States regards it as
proper to establish conservation zones in those areas of the high seas216 FISHERIES JURISDICTION
contiguous ta the coasts of the United States wherein fishing activities
have been or in the future may be developed and maintained on a sub-
stantial scale. Where such activities have been or shall hereafter be
developed and maintained by its nationals alone, the United States
regards it as proper ta establish explicitly bounded conservation zones
in which fishing activities shall be subject ta the regulation and control
of the United States. Where such activities have been or shall hereafter
be legitimately developed and maintained jointly by nationals of the
United States and nationals of other States, explicitlv bounded con-
servation zones ni3y bc citsbli,hed iinder agreenicnts bekieen the United
Stdte5and such othcr Sr:itcs; and aII tiihing aclivitics in such zones .hall
be subject ta regulation and control as provided in such agreements. The
right of any State ta establish conservation zones off its shores in accor-
dance with the above principles is conceded, provided that correspon-
ding recognition is given ta any fishing interests of nationals of the
United States which may exist in such areas. The character as high seas
of the areas in which such conservation zones are established and the
right IO their free and unimpeded navigation are in no way thus affected."
(Proclamation No. 2668, 10 U.S. Federal Register 12304.)
It followed clearly from those texts that the United States regarded the
fishery rights of other nations in the waters above the United States continen-
tal shelf beyond the limits of the territorial sea as being unaliected by the
Proclamation relating ta the exclusive rights of the United States ta the
resourcesof thecontinental shelf. The United Statesdid not claimjurisdictional
rights over the fishing activities of nationals of other States which had been
legitimately developed and maintained by these nationals within the United
States conservation zone, except on the basis of respective agreements with
the Stales concerned.
17. The view that the concept of the coastal State's jurisdiction over the
continental shelf did not affect the international character of the fishery
resources~~n the waters above the continental shelf. was clearlv exoressed hv
the InternationalLaw cornmission~in its Draft ~rticles on the Law'of the se;
andin itscommentary thereto. lt will besufficient here to refer to the commen-
tarv of the commission to Article 49 which later. with some amendments.
bc.'anie Articlc 1ofihe<~onvciiiionon Fishingsnd Conscrvüt~onof the l.iving
Kssourccsofihe High St3,(cited sbo\,c in parï ?ofthis Part of ihs 5lemorial).
Here the commission stated:
"T~is~article~co~ ~rms the nrinciole of the rieht t- fish o~ ~he hi~h -
seas. The Commission admitted no exceptions to that principle in the
parts of the high seas covering the continental shelf. save as regards
sedentarv fisheFies and fisheriés carried on bv means of eaui~ment
embeddédin the sea floor.. .Nor did it recognize the right toestablisha
zone contiguous to the coasts where fishing could be exclusively reserved
to the nationals of the coastal State." (~e&book of rhe/,rrernafional Law
Commission,1956,Vol. II,p. 286.)
18. The Conference on the Law of the Sea later endorsed the view of the
International Law Commission and Article 2, paragraph (4), of the Conven-
tion on the Continental Shelf adopted al Geneva on 26 April 1958, expressly
provided that the "natural resources" referred to in the Convention over
which the coastal State has exclusive rights of exploitation, consist of the
"mineral and other non-living resources of the seabed and subsoil together MEMORIAL ON THE MERITS 217
withliving organisms belonging to sedentary species,that is to say, organisms
which, at the harvestable stage, either are immobile on or under the seabed
or are unable to move except in constant physical contact with the seabed
orthesubsoil", and Article3 of the Conventionprovidedthat "the rights of the
coastal State over the continental shelf do not affect the legal status of the
superjacent waters as high seas".
19. There were. of course. a number of claims oointinn in the contrary
direction,notablyin the tat tpractice of certain taiesof cintra1 and south-
ern America. Though it is necessary to note this practice as evidence of
a dissentient trend of ooinion. it can nevertheless be safelv maintained that
the dominant trend of international opinion in this period was decisively in
favour of the view that the extension of the coastal State's jurisdictioover
the continental shelfadjacent ta its Coastin no way implied any extension of
the traditional limits within which a coastal State could claim to exercise
fisheries jurisdictioin the superjacent waters, except-explicitly and there-
fore significantly-inrespect of the so-called sedentary species.
4. THEGENEVACONFERENC OEN THE LAW OF THE SEA1958
20. The historyand the results of the Geneva Conference of the Law of the
Sea from 24 February 1958to 27 April 1958need no detailed analysis in this
Memorial. The account given here will concentrate on those parts of the
Conference's achievements and failures which bear directly on the present
dispute.
21. The Conference failed to reach agreement on the maximum breadth
of the territorial sea or of the fisheries jurisdictionthe coastal State. The
Convention on the Territorial Sea and Contiguous Zone, signed on 29 April
1958.contained orovisions on the status of the territorial seaand rules which
go%,ernthe delin;itntion of the haseliiiey from ahich the brexdth of the terri-
torjal se3should be messured. but left the question of the riiaximurn hreidth
of the icrritoriïlsea uns~~li,edA, ncither the I'ederal Repuhlic of Gcrniany
nor Icel.tnd hste becoinc parties to thih Con\,cntiain the questicin iiiay be
niseil to khiil e.\tcnt the provi,'ons and ruleï containeil in lhe Convention
are representing general international lawand govern the delimitation and the
determination of the new baselinesthe Government of Icelandhadproclaimed
in the Regulations of 14 July 1972. Since the Government of the Federal
Republic of Germanv challenges the legalitv of the establishment of the 50-
mile zone by the ~e&lations of 14~u1;19?2 as a whole, the question of the
legality of the baselines chosen by the Government of lceland may be left
aside here.
22. The Convention on the High Seïs ctgned on 29 April 1958ha>only an
indirect bcjring on the issuesin this case.The Convention \taies in ils Article
2 that thc h~ehseas are open to aII nlitioiii. and that freedoin of the high seïs
comprises, inter alia, bofh for coastal andnon-coastal States the freedom of
fishing. According ta Article 1 of the Convention the term "high seas"
means "al1 parts of the sea that are not included in the territorialsea or in
the interna1 waters of a State". Thus, a coastal State may not unilaterally
exclude fishing vesselsof other States from fishing in the waters before ils
coasts beyond the outer limit of its territorialsea as internationally recog-
nized at the oresent lime. As Iceland has not become a oartv to this Con-
vention (the ~ederal Republic of Germany deposited its instr.ument of rati-
fication on 26 July 1973)here again the question arises whether the rules con-
tained in the Convention'are representing general international law. Accor-ding to the preïmhle of the Con\,ention the States parties to the Convention
hwe recognized that the Conference on the Law of the Sca h3d ïdopted the
~rovision~of this Convention as eenerallv declaratorv of estahlished oiinci.les ~r~~
of international law. This heing;o, no tat tmeay cGim an exclusive fisheries
zone hefore its coast heyond the limits to which a coastal State, onder current
international law. is entitled to entend ils territorial sea. The latter auestion
will be discussedin the later paragraphs of this Part of the ~emoiial (see
paras. 56 to 126).
23. The Convention on Fishing and Conservation of the Living Resources
of the High Seas adopted by the Conference and signed on 29 April 1958
applies to the living resources of the high seasand states in ils preamble that
there is a "clear necessity" that the "problems involved in the conservation
of the livine resources of the~ ~ ~ ~h seas he solved. whenever nossible. on the
hasis of inCrnational co-opera& through the concerted action of al1 the
States concerned". Article 1 of the Convention reaffirms that al1States have
a right for their nationals to engage in fishing on the high seas, subject only
(a) io their treaty obligations, (6) to the interests and rights of coastal
States asprovided for in the Convention. and fc) ta the provisions concerning
conservaiion of the living resources ofthe high seas contained in the con-
vention. The Article goes on to provide that al1States have the duty to adopt
or 10co-operate with other States adopting such measuresfor their respective
nationals as mav he necessa~v~for the conservation of the livine resources of
, ~ ~ ~
the high seas.Thc Convention does not authortie States tuexercise uiiilaieral
rights ofjurisdiciion over foreign n3tii)nals. Ifnationals of only one Statc are
engaged in fishing a certain stock in a certain area (e.g., if nationals of the
coastal State are alone engaged in fishing hefore ils coast), any necessary
conservation measuresmay then betaken bythat State unilaterally (Art. 3). If,
however, nationals of two or more States are engaged in fishing the same
stock in the same area, those States shall then at the request of any of them
enter inta negotiations with a view to prescribing hy agreement for their
respective nationals the necessary conservation measures (Art. 4). It is only
onder the special conditions of the Articles 6 and 7 that unilateral measures
may he taken by the coastal State, without the right, however, to enforce
them directly on foreign nationals. These provisions will be discussed later
in more detail lsee nara. 25 helow).
. .
24. The procedures to be fillo&d in initiatingand conducting negotiations
for the conclusion of agreements between the States concerned in execution of
Article 4 of the Convention hav~ ~ ~ -.eft ooen ~7~the~.onvention. However.
on 25 April 1958, the Conference adopted a Resolution on lnternational
Fishery Conservation Conventions. It read as follows:
"The United Nations Conference on the Law of the Sea,
Taking note of the ooinion of the lnternational Technical Conference
on the ~&servation of'the Living Resources of the Sea,held in Rome in
AprilIMay 1955, as expressed in paragraph 43 of ils report, as to the
efficacy of international conservation organisations in furthering the
conservation of the livine~ --~--ces of~t~ ~ ~ -~a..
Believing that such organisations are valuable instruments for the
co-ordination of scientific effort upon the prohlem of fisheries and for
the making of agreements upon conservation measures,
Recommends :
1. That States concerned should co-operate in establishing the necessary
conservation régime through the medium of such organisations MEMORIALON THE MERlTS 219
covering particular areas of the high seas or species of living marine
resources and conforming in other respects with the recommendations
contained in the report of the Rome Conference;
2. That these organisations should be used so far as practicable for the
conduct of the negotiations between States envisaged under Articles
4, 5, 6 and 7 of the Convention on Fishing and Conservation of the
Living Resources of the High Seas.for the resolution of any disagree-
ments and for the implementation of agreed measures of conser-
vation."
25. The Convention recognizes in Article 6 that acoastal State har a special
interest in the maintenance of the productivity of living resources in any area
of the high seas adjacent to its territorial sea. Article 7 authorizes a coastal
State to adopt unilateral measures of conservation in any area of the high
seas adjacent Io its terrilorialsea. provided that negotiations with the other
States concerned have not led to an agreement within six months. Such
unilateral measurescannot, howvever,be adopted arbitrarily. They are valid in
relation to other States only if the following requirements are fulfilled: (a)
there is a need for urgent application of conservation iii the light of the
existing knowledgc of the fishery; (b) the measures adopted are based on
appropriate scientific findings; and (c) such mcasurcs do not discriminate in
form or in fact against foreign fishermen. Any disagreement asto the validity
of the measures may be referred to the Special Commission provided for by
Article 9 of the Convention. Under Article II the decisions of the S~ecial
Commission are binding upon the States concerned.
26. At the Conference Iceland proposed an additional article to the Con-
vention. readinp- as follows:
"Where a people is overwhelmingly dependent upon ils coastal
fisheries for its livelihood or economic development and it becomes
necessarv to limit the total catch of a stock or stocks of fish in areas
adjacenlto the coastal fisheries zone, the coastal State shall have pre-
ferential rights under such limitations to the extent rendered necessaryby
its dependence on the fishery.
In the case of disagreement any interested State may initiate the pro-
cedure provided for in Article 57."
On 21 April 1958, this Article nas adopted in Comniittee. But when it was
put to the vote in plenary on 26 April 1958, the result was 30 in favour and
21 a- ,nst. with 18 abstentions. The Article thus failed to obtain the reauired
Iwo-thirds majority.~owever, on 26 April 1958, the Conference adopte& a
resolution. ori~,inally ~roposedby South Africa, which, with amendments pro-
posed by ~cuador and ~Ïeland, Ïead as follows:
"S~eciolSiri,arionsre1arin.eto CoasralFirheries
The United Nations Conference on the Law of the Sea,
Having considered the situation of countries or territories whose
people are overwhelmingly dependent upon coastal fisheries for their
livelihood~ ~ e~ ~omic develoom.nt.
Ha~ing constdcrcd also the situation of countrnes %ho% co~stal
populdiion Jepend.; priniarily on cs;istal fisherirs for ihc animal proiein
sf ils die1 and uhosc tirhine nieihods arc mdiiilv liriiired to local firh.na
from small boats,
Recognizing that such situations cal1 for exceptional measures be-
fitting particular needs, Considering that, hecause of the limited scope and exceptional nature
of those situations, any measures adopted to meet them would be com-
plementary to provisions incorporated in a universal system of inter-
national law,
Believing that States should collaborate Io secure just treatment of
such situations hy regional agreements or hy other means of international
CO-operation,
Recommends :
1. That where, for the purpose of conservation il becomes necessary to
limit the total catch of a stock or stocks of fish in an area of the hirh
wür adjaccnt io thc territorial rea of a coastdl Siüie, any oihcr ~iïiës
fi5hingin thüt arca should collahi>rate with the c<iastalSiüic to securc
just treatment of such situation, by establishing agreed measures
which shall recognize any preferential requirements of the coastal
State resulting from its dependence upon the fisheryconcerned while
havina-rea-rd to the interests of other States:
2. Th;it appropriütc conciliation and arbitral prdcedurcs shnll bc csrib-
lished for ihc ~eiilcmcnt of dny Ji,agreement." (Unitcd Nation\ Con-
fcrencr.on the l.i\i of the Sca, Ofi<.i<iKrror<ls, Vol. II,p. 48.)
27. Neither the Reoublic of Iceland nor the Federal Reoublic of Germanv
has uniil now ratifiei the <:on\cntion on Fishing and fiinscrvsiion of thé
Living Ke\oiirces <ifthe lligh Seiis.Hciw far ihc principles and rulcr ;onInincd
in this Convention reoresent nrinci~les and rules of eeneral international law.
will be discussed at a later siage in this Memorial isee helow paras. 102 ti
115).
28. So much for the positive achievements of the Conference on the Law
of the Sea 1958. On the negative side, the Conference tried but failed to
secure agreement on the maximum breadth of the territorial sea, and con-
seauentlv also on the admissibilitv and maximum hreadth of an exclusive or
préfereniialfisheries zone. It was, however, at the Conference that the concept
of distinct limits for the territorial sea and for fisheries jurisdiction gained
pround. Alreadv the International Law Commission itself had heen unahle to
qree on rulcs deirrniining the niaxiiiiuni bre:idih of ihc icrritor831 scï \\lien
it prepsrcd ils Dralt Ariiilei for the Cdnferciicc. In 11sDrafi Articles il hsd
included the following:
"1. The Commission recognizes that international practice is not uniform
as re-ards the delimitation of the territorial ~~a.
2. The ~ommission considers that international law does not permit an
extension of the territorial sea beyond twelve miles.
3. The Commission. without takine anv-.ecision as to the breadth of the
territorial sea up to that limit, notes, on the one hand, that many
States have fixed a hreadth greater than three miles and, on the other
hand, that many States do not recognize such a hreadth when that of
their own territorial sea is less.
4. The Commission considers that the hreadth of the territorial sea
should be fixed by an international conference." (Article 3 of the
Draft Articles; Yearbook of the International Law Commission 1956,
Vol. II, p. 256.)
29. At the Conferencethere was conflict between those States, on the one
hand, which expressed firm adherence to the three-mile rule as the only limit
recognized hy international law and those States, on the other hand, which MEMORIAL ON THE MERITS 221
~ro~osed that every State should be free to determine the hreadth of its
ierritorial seaup to-a limit of 12 miles from the coastline or other applicable
baseline. On 31 March 1958the Canadian Delegation introduced in the First
Committee an amendment ta the International Law Commission's draft to
the effect that, while the territorial sea should extend ta three miles, the
coastal State should have the same rights in respect of fishing and the exploi-
tation of the living resources of the seain the contiguous zone, not extending
beyond 12 miles from the baseline from which the breadth of the territorial
seais measured, as in its territorial sea.
United Nations Conference on the Law of the Seas, Oficiol Records, Vol.
III: First Committee (Territorial Sea and Contiguous Zone), pp. 89, 232.
On 2 April 1958 the United Kingdom Dele~ation introduced in the First
~ommitlee a proposal that the lhit of the-breadth of the territorial sea
should not extend beyond six miles and that an extension ta this limit should
not affect existing rights of passagefor aircraft and vessels, including war-
ships, outside three niiles (ibid., pp. 103, 247-248). On 16 April 1958 the
United States Delegation proposed that the maximum breadth of the territo-
rial sea should be six miles but that the coastal State should have the same
right to regulate fishing i.ilone ha\ ing a niahimuil1 brcaJth of I? miles from
the applicable bascline asin lis territorial sea.subjec10 the righti of nationals
ofother Sr.ires. %,hohad firhcrl rçeularl~ in thai zone for a Deriud of icn jeûrs.
to continue fishing there. In an ahendid proposal introdüced by the United
States Delegation on 18 April 1958, the period of ten years was reduced to
five (ibid., pp. 153, 163 and 253).
30. On 19 April 1958 the First Committee rejected the United States pro-
posa1by 38 votes ta 36. with 9 abstentions. Earlier the first part of the amen-
ded Canadian proposal (six-mile territorial sea) had been rejected and its
second part (12-mile fishing zone) adopted (ibid., Vol. III,pp. 176-177, 180);
but in the plenary session also this part of the Canadian proposal was not
approved (ibid., Vol. II: Plenary Meetings, pp. 39, 116). The United States
orooosal which had failed in Committee was reintroduced in olenarv but also
didnot obtain the required Iwo-thirds majority. Voting was & in fabour with
33 against and 7 abstentions (ibid, Vol. II, pp. 39, 116).
31. Thus. the Conference failed ta reach aereement either on the maximum
breadth of the territorial sea or on the pe;missible extent of any separate
fisheries jurisdiction, although theconcept of such a separatejurisdiction had
attracted respectable support.
32. The second Conference on the Law of the Sea which met in Geneva
between 17 March 1960and 26 Aoril 1960had its agenda limited ta the two
questions of the breadth (if the ter;irorial scaand fisheries limits.
33. The discussions in Coniniittee uere developments of the discussions
th31 had Iaken dace in the 1958Conferenceand ~houed increasing acce-itnnce
of the ide3 thi~ia coa?taI State niight posse%an exclusive fisheries juri>diction
outiide ils territorial .es.prov:rlrrl ihat this did no1havethe elTeciofconferring
such a jurisdiction beyand a distance which was generally-though not uni-
versally-fixed 12 miles (rom the Coast. In addition ta the different views
which were expressedabout the actual breadth of the territorialseaandof any
additional fisheries jurisdictionzone. there were also different views aboutwhat provision should be made for continued fishing by any other than
the coastal State who had traditionally fished in the waters of such a zone.
34. One of the first proposals was one put forward by the Delegation of
the USSR on 22 March 1960. It read as follows:
"Every State is entitled to fix thebreadth of its territorial sea up to a
limit of twelve miles. If the breadth of its territorial sea is less than this
limit a State mav establish a fishinr zone contiauous to its territorial sea
provided, howeGer, that the total ireadth of the territorial sea and the
fishing zone does not exceed twelve nautical miles. In this zone a State
shall have the same rights of fishing and of exploitation of the living
resources of the sea as it has in its territorial sea." (Second United Na-
tions Conference on the Law of the Sea, Ofici01 Records, Summary
Records of Plenary Meetings and of Meetings of the Committee of the
Whole, pp. 38, 164.)
There was also a Mexican proposal to much the same effect except that it
envisaged that the fisheries jurisdiction zone beyond the territorial sea might,
in certain circumstances, extend ïurther than 12 miles ïrom the baselines, the
new distance varying (more or less inversely) according to the breadth of the
territorial sea claimed.
35. On 24 March 1960 the United States Delegation, recognizing that the
proposal which the United States had put forward at the 1958 Conference had
been criticized for not placing any limitation on the future expansion of
foreign fishing in the proposed outer 6-mile zone, re-submitted it with the
following proviso added:
"Any State whose vessels have made a practice of fishing in the outer
zone of another State during the period of five years immediately
preceding 1 January 1958 (hereinafter referred to as 'the base period'),
may continueto fish within the outer six miles of that zone for the sanie
groups of species as were taken therein during the base period to an
extent not exceeding in any year the annual average level of fishing
carried on in the outer zone during the said period."
The new United States proposal also included an annex providing for nego-
tiations between the coastal State and States fishing in the outer six-niile zone
and a ~rocedure for the settlement of dis~utes. The leader of the United
Siclte>bïleg.!iii>n said ih:iiihile ihc prdpos~l a hl~h he hd j~i<ipi.t f<irii:trd
di<(noi pro\..de f.ir ilie prefïreniill treJinient. in the .>iiierIonr., of coiintrir.\
overwhelmingly dependent on their coastal fisheries, his Delegation was
prepared to discuss appropriate proposals with other delegations (ihid.,
pp. 45, 166). On 25 March 1960 the Canadian Delegation introduced a pro-
posai which was substantially the same as the one which Canada had put
forward at the 1958 Conference (see paras. 29-30 above). They argued that the
"six plus six" formula (i.e., a six-mile territorial sea and a six-mile zone
contiguous to it in which fishing would be reserved exclusively to the coastal
State) was the only effective alternative to extension of the territorialsea for
purposes of fisheries protection (ibid., pp. 49, 167).
36. On 8 April 1960 the United States and Canadian Delegations announ-
ced that they had decided, in deference to the wishes of other delegations ex-
pressed in the course of the Conference, to withdraw their proposals of 24
and 25 March, and to subrnit a joint proposal. Their joint proposal aban-
doned the United States formula for limiting foreign fishing rights in the
outer six-mile zone by quantity and species and at the same time modified MEMORIAL ON THE MERITS 223
the Canadian proposal for a six-mile fishing zone exclusive to the coastal
State. The text was as follows:
"1. A State is entitled to fix the breadth of its territorial sea up to a
maximum of six nautical miles measured from the applicable baseline.
2. A State is entitled to establish a fishing zone in the high seas
contiguous Io its territorial seaextending to a niaximum limit of twelve
nautical miles from the baseline from which the breadth of its territorial
seais measured, in which it shall havethe sanie rights in respect of fishing
and the exploitation of the living resources of the sea as it has in its
territorial sea.
3. An) Sixte uhosc vc..els have niade 3 prxciice of ribhtnc in the outcr
six miles oîihc fisliing miie cii:ihlichehy the colisii<l Siaie in accordancc
with paragraph 2 above, for the period of five years immediately pre-
ceding January 1. 1958, may continue to do so for a period of ten years
from October 31, 1960.
4. The orovisions of the Convention on Fishinn an- Conservation of
the Lir,.ng Re,o~rces i~fthe Iliph Sc:is adopted ;itC;cneva. on April 27.
1953.shlill apply »ii,r<r~i,i~l~~r<ilI.sthe sertlciilcnt of an). disp~tc ~r~sing
out of the application of the foregoing paragraph.
5. The provisions of the present Convention shall not affect conven-
tions or othcr international agreements already in force, as between
States parties 10 them. or preclude the conclusion of bilateral or multi-
lateral agreements." (Ibid., pp. 121, 173.)
37. The lcelandic Delegation had again introduced the same proposal as
the one that lceland had viit hefore the 1958 Conference and that had there
been rejected. namely to adopt an article which would confer preferential
rights on a coastal State whose people is "overwhelmingly dependent on its
coastal fisheries for its livelihood and econoniic development" (loc. cil.,
p. 126).
38. On 13 April 1960 the United States-Canadian compromise proposal
supported by the United Kingdom Delegation, was approved in the Com-
mittee of the Whole hy 43 votes to 33. with 12 abstentions. Under the Con-
ference's Rules of Procediire, only a simple majoriiy was requircd. The pro-
posai by Iceland for prefcrential rights for a people "overwhelmingly de-
pendent upon ifs coastal fisheries for its livelihood and economic devel-
opment" was also adopted by the Committee hy 31 votes to II, with 46
abstentions. The 12-mile proposal of 22 March 1960 was withdrawn by the
Soviet Delegation which voted for a proposal sponsored by the Mexican and
Venezuelan and 16 Asian and African deleeations. This latter oronosal
similarly entitled a Srate to fix the breadth of iÏs territorial sea up 1; a maxi-
mum or 12 nautical miles but it aas rejected in Comniitiee by 36 votes Io 39,
with 13abstentions (/oc. cir..oo. 151-152)
39. On 19 April 1960 ihe ~oiiicrcncc rï.is.enibled in plenai!. seslion In
addition 10 the lcclandic propod conccrning prercrcniiil fi\hing righii 2nd
the lJnit'.ll Siiles-C.inli~iilin nrain~osailrhich hdd bcen:irinro\ed in Commiitec.
certain other proposais were.tabled. Only two of these;équire mention in this
Memorial. The first was put forward on 25 April 1960 by Brazil, Cuba and
Uruguay. It was an amendment to the United States-Canadian proposal
which read as follows:
"1. lnsert the following new paragraph after paragraph 3:
'4. The provisions of paragraph 3 shall not apply or may be varied as between States which enter into bilateral, multilateril or regional
agreements to that etïect.'
2. Renumber paragraph 4, which becomes paragraph 5, and add the
following paragraphs:
'6. Notwithstanding the ~rovisions of the orecedins paragraohs,
hut sub~ectto the pdragraphs bclow, the coasral Siste <di the-fac.ults
oi sla~niing preferential fiihing righir in an). üreii of ihe high seasadjii-
seni io irj c.xiluï.\~e tirliing lonc ~hen iiis scicntifically rstabli\hed
that a special situation or condition makes the exploitation of the
living resources of the high seas in that area of fundamental im-
portance to the economic development of the coastal State or the
feedin- of ils. .oulation.
7. Any oihcr Staie çoncerned mïy requesr that any such clliim be
detcrmined by ihc special cummisrion provided for in article 9 of the
Convcnii~in on Pishing and Conserv;iiion of the Liviiig Kesources
of the High Seas.ad~~piedai Geneva on 26 April 1958.
8. A special siiuat~t~nor condiiiun ma). be dcemed lo exist u,hen:
(O) The fishcrier and the es,ini)nilc developinenl or the co3,ial S13tr
or ihç fceding of ils population arc so maniieiily ~nterreliite(l
that, in consequence, that State is greatly dependent on the living
resources of the high seas in the area in respect of which pre-
ferential fishing is being claimed;
(b) It becomes necessary to limit the total catch of a stock or stocks
of fish in such areas, in accordance with the provisions of the
Convention referred to in paragraph 2 above.
9. The commission will determine on the basis ofscientific criteria
whether special conditions exist, after a hearing ai which both the
coastal State and fishing States concerned shall have the right to
present al1 relevant evidence, technical, geographical, biological and
economic.
10. The coastal State, to the extent and for the period of lime
determined by the commission, shall have preferential fishing rights
in the area in question, under such limitations and to such extent as
the commission finds necessary by reason of the dependence of the
coastal State on the stocks of fish, while having regard ta the interests
of any other State or States in the exploitation of such stock or stocks
of fish.'" (Loc. cir., pp. 13, 14, 15, 173.)
40. The other additional proposal which deservesmention here was a pro-
posai put forward by the Icelandic Delegation to amend paragraph 3 of the
joint United States-Canadian proposal by adding the following words: "The
provisions of this paragraph shall not apply 10the situation where a people is
overwhelmingly dependent upon ifs coastal fisheries for ils livelihood or
economic development" (loc. cil., pp. 26, 174).
41. Voting on the various proposals look place in plenary on 26 April 1960.
Both the Icelandic proposal adopted in Committee and the lcelandic amend-
ment to the United States-Canadian proposal were rejected. The sponsors of
the amendment proposed by Brazil, Cuba and Urueuav aareed orallv that its
ne% prragraph 4 should he~repldcedby psrdgraph 5 oithi Unitcd ~;atc~-Ca.
nxdian proposal. 2nd the u~iiriidnicnt ai 50 iiiodilied nai ~dopted. 'lhc voting
on the joint United States-Canadian orooosal. as so amended. was 54 in
favour and 28 against, with 5 abstentiuns: since a two-thirds majority was MEMORIAL ON THE MER~TS 225
required for the adoptionof a proposal in plenary, the proposal thus failed, by
one vote, to be adopted (/oc.cil., pp. 21, 30).
6. THE PERIOD AFTER THEGENEVACONFERENC EF 1960
42. But thoueh the 1960Confcrrnce hlid thtis faileJ io prodiicc nny formïl
nareeinent on the brîadih of the Ierriiorial sca and iishcries jiirisd!ciionthe
p~oposals that had been tabled and that had nearly secured a two-lhirds
majority, influenced the evolution of new rules of customary international
law. The general cotrsensrrwhich the Conference revealed on the permissible
extent of a coastal State's fisheries iurisdiction was. in the vears which suc-
ceeded the Conference, expressed in such an unmiStakable-pattern of State
wractice, acquiesced in by ofher States, that, by the middle or late 1960s,there
could be little room for doubt that the law had chaneed in this resoect
43. Alrendy bctvc.cn the riw Conferences thc unircd ~ingdo" 2nd Uen-
mark by an cxchünge of Sotcs on 27 April 1959(U»ired Ndtio~ir Treiiry Seriec,
Vol. 337.p. 416). anicnded the Anglo-Dnnish Con\eniion of 1901which ads
still in force in reliition Io ihc i'aroe lslnnds. \Vithout prejudicc Io the views
held by eiiher Go\crnnieni a> io the dcl~miiaiion and Iimits in internaitonal
law of territorial waters or of exclusive jurisdiction in fishery matters, the
United Kingdom accepted an exclusive fishery limit around the Faroc lslands
of six miles. Further, il was provided thdt "in view of the exceptional depen-
dence of the Faroese economy on fisheries", in three areas between6and 12
miles from the Coast fishing by vessels registered in the Faroe Islands or
Denmark and by vessels registered in the United Kingdomshould, between
certain dates. be limited to fishing with a long line and hand line. Finally.
it was provided that having regard ta the fishiries traditionally exercised in
waters around the Faroe Islands hy vesselsregistered in the United Kingdom,
the Government of Denmark shall raise no objection Io such vesselscontin-
uing Io fish in the area between the 6:mile and 12-mile line.
44. After the 1960 Geneva Conference, the United Kingdom and Norway
concluded the Fisheries Agreement of 17 November 1960 (United Notions
Trealv Series. Vol. 398..o, 189) in which thev nr,vi7~~ f~ ~a Iwo-staee ~~
extension of the Norwegian exclusive fisheries zone. Article II of this Agree-
ment provided that the United Kingdom acce~ted the exclusion of British
vessels from fishing in an area ~ont~~uousta the territorial sea of Norway
extending to a limit of six milesfrom the baseline from which the territorial
sea is measured. The Agreement furthcr provided, in Article Ill,thar for a
period of approximately ten years vessels registered in the United Kingdom
would be allowed ta continue to fish in the zone between the 6-mile and 12-
mile limit, but that after the expiration of this lime the United Kingdom
would no1 abject ta the exclusion of British vesselsfrom fishing within the
12-mile limit. In the preamble of that Agreement, bath parties expressly re-
ferred Io the joint proposal of the United States and Canada made at the
Second Conference on the Law of the Sea with respect to the brcadth of the
territorial seaand fishery limits.
45. The Anglo-Norwegian Fisheries Agreement was followed by the
Exchange of Notes of II March 1961, between the United Kingdom and
Icelandand by the Exchange of Notes of 19 July 1961, between the Federal
Republic of Germany and Iceland, by virtue of which the Governments of
the United Kinadom and the Federal Re~iiblic acceuted de facto a 12-mile
exclusive fishercs limit for Iceland, subject ta certain phase-out rights for
British and German fishing vesselsin the outer six miles. 46. On I June 1963 Denmark extended the fisheries zone for Greenland
to 12 miles and also made a similar extension in regard to the Faroe Islands
effective as from 12 March 1964. However, certain countries were granted
exception from the application of the Greenland limits until 31 May 1973.
Reported in IirleriroriotralLegaImate rial.^,Vol. II,p. 1122.
47. The next country to follow suit was Canada. whose Government
announced on 4 June 1963 their intention "to establish a 12-mile exclusive
fisheries zone along the whole of Canada's coastline as of mid-May 1964".
This intention was in due course put into effect by the Territorial Sea and
Fishine Zones Act 1964 which nrovided for a territorial sea of three miles
- - -~ ,~ ~ ~ ~
2nd for an cxclu\ivc fishcr~rr zonc c.\icn<ling nne milci be)ond tl13tIloncvcr.
in ihe iniplcmentai~on of this 1cgiil;itiori. provjsjon nai in duccourse niadç for
the continuaiion of fishing by \esseli of the Unircd St;itei. Francc. the Uniiçd
Kingdom. Portiigal. Spain. Italy, Noraiy ;id Ilcninarh (al1 of whom had
traditionally fishcd in ssri;iin arcLi; a.iihiniliç e\clusi\c 70ne) pcndinl: thc
conclusion of negotiations with those countries.
Inrerirorioi~al Legal Marerials, Vol. II,p. 664; Vol. 111. pp. 922-925.
48. The trend thus being set by these instances of bilateral agreements or
legislation by individual States,acquiescedin by theother countriesconcerned,
was considerably advanced at the end of 1963 and the bcginning of 1964 by
an important event on the multilateral plane. This was the holding of the
European Fisheries Conference in London between 3 December 1963, and
2 March 1964,and the resultant adoption, on 2 March 1964,of the European
Fisheries Convention (Unired Nations Twory Series. Vol. 581, p. 57). The
original signatories of this Convention were Belgium. Denmark. France, the
Federal Republic of Germany, Ireland, Italy, Luxembourg. the Netherlands,
Portugal, Spain, Sweden and the United Kingdom. It was, in due course,
ratified or approved by al1 the signatories except Luxembourg. By arrange-
ments concluded with the United Kingdom on 26 September 1964, 28 Sep-
tember 1964 and 30 September 1964, respectively, Poland, Norway and the
USSR in etïcct accepted the validity of the Convention. On 7 June 1966
Poland formally acceded to the Convention. lceland participated in the
Conference biit refiised to become a party to the Convention.
49. Under Article Iof the European Fisheries Convention of 1964, each
Contracting Party recognized "the right of any other Contracting Party to
estahlish the fishery régime described in Articles 2 to 6 of the present Conven-
tion". The "fishery régime" referred to was one under which:
lai "The coastal State has the exclusive riaht to fish and exclusive
jurisdciion in nialferr of fiihcrisi \iiihinÏhç beli of si* miles nica-
sured froni ihç h~selineof iis territortal xa" (Article 2).
(h) '\Vithin ihc bcli hctwcen six ÿnJ iuel\e miles ineasured from the
baseline of the territorial sea, the-right 10 fish shall be exercised
only by the coastal State and by such other Contracting Parties, the
vesselsofwhich have habitually fished in that belt between I January
1953and 31 December 1962" (Article 3).
(c) "Fishing vessels of the Contracting Parties, other than the coastal
State. permittedto fish under Article 3, shall not direct their fishing
effort iowards stocks of fish or fishing grounds substantially dif-
ferent from those which they have habitually exploifed. The coastal
State may enforce this rule" (Article 4). MEMORIAL ON THE MERITS 227
(d) "(1) Within the belt referred to in Article 3 the coastal Stale has the
power to regulate the hheries and Io enforce such regulations,
including regulations to give effect to internationally apreed
measuresof conservation. provided that there shall be no discrimina-
tion in form or in lact against fishing vesselsof other Contracting
Parties fishing in conforniity with Articles 3 and 4.
(2) Before issiiing regiilations, the coastal State shall inform the
other Contracting Parties concerned and consult those Contracting
Parties if they so wish" (Article 5).
(e) "Any straight baseline or bay closing line which a Contracting
Party may draw shall be in accordance with the rules of international
law and in particular with the provisions of the Convention on the
Territorial Set and the Contiguous Zone opened for signature at
Geneva on 29 April 1958" (Article 6).
50. In addition, the London Conference also adopted, on 17January 1964,
a Resolution on Conservation. which read as follows:
"Kccognlcing ihal al1eilorls Io proiliorc ihc \i;ibiliiy and pr0iperityof
thr fiçh ng indusir) ~liimsielv depcnd on cllecti~c ctinscrvaiiun nir4sures
to ensure the rational exploitation of the resources of the sea, and that
the Commission recently established under the North-East Atlantic
Fisheries Convention is the body internationally responsible for these
matters,
The Conference urges the Governments represented on the Commis-
sion to intensify their efforrs
To secure the introduction of such measuresas may be necessary, no1
onlv Io orevent overfishine. but Io ensure the ~rofitable exoloitation of
'
the-fisheiies for the benefit-of al1the countries concerned;
And for this purpose to ensure that the Commission is enabled 10
employ the full range of measuresenvisaged in the Convention. including
measures of national and international control to ensure the effective
observance of the regulations."
The Icelandic Deleeat-on voted in favour of this Resolution. which indeed
was adopted unanimously.
51. In the years which followed the adoption of the European Fisheries
C-~vention of 1964..nu~erous instances occurred of reliance on. and
acq.iiercencc in. the propii>ii.oii ihsi the Iiniitrset hy inierr.lii<irial1.i~for
rhe e\crri,ç of lisheric,~.~id.cii~iii b' .icoari~l Siiie h.id in,,ved Io IZ niilcc
froni ih~r Si:iie'i c~i.,siline. Thus. <in 10Scn~cmbcr 1965. Sca Zc.il.inil ciilci-
ed the Territorial Seaand ~ishinb Zone Act 1965whichwas closcly modelled
on the Canadian legislation referred to in parügraph 47 above. In enèct, il
claimed an exclusive fisheries zone of nine miles beyond a territorial sea of
three miles. This legislation was at first the subject of a vigorous protes1 by
the Government of Japan but that Government eventuülly accepted it
(subject to certain temporary provisions) by an agreement signed on 12 July
1967 16 Inrerirorio~iol Lena1 Maferials. 736). Another exam~le is the leaisla-
tion enacted by ~ortu~aïon 22 Auguit 1966, which apparently established a
fisheriesjurisdiction zone of 12niiles of which the inner six miles were for the
exclusive enjoyment of Porluguese vessels and the outer six miles zone in
which Portugal exercised regulatory, but non-discriminatory, control (5
Inrernnriorol Legal Mrrrerials, 1094).
52. Furlher examples could be adduced. But one which is particularly
illustrative of the position which was being created during these years is theenactment by the Congress of the United States of America, on 14 October
1966, of an Act "10 establish a contiguous fishery zone beyond the territo-
rial sea of the United States" (5 Iiiternorionol Leaol Moleriais. 1103). This
Act provided thai "the Uniied States \riIl cxercise ihe 9ameexclukive riihts in
re\pect of fisheries in the zone a.. it has in the icrrirorialsea. subject ta the
continii3tion of trad:t~onal firhins hy forcisn Stnie\ uithin this lime as ninv
be recognised by the United taïe e (s"ction 1). The term "the zone" wai
defined as a zone having "as ils inner boundary the outer limits of the territo-
rial sea and as ils seaward boundary a line drawn so that each point on the
line is'riine nautical miles from the nearest point on the inner boundary".
Before the enactment of this legislation (which was a development of earlier
legislation, enacted in May 1964 and relating primarily ta fishing for seden-
tary species on the United States continental shelf), the Chairman of the
Committee on Commerce of the United States Senateasked for the advice of
the Statc Department. This advice was supplied in a letter dated 18 May 1966,
from which the following relevant parts may be cited:
". .. The purpose of the proposed legislation is ta establish for the
United States a 12-mile exclusive fisheries zone measured from the
baseline from which the breadth of the territorial sea is measured but
subject to the continuation of such traditional fishing by foreign States
and their nationals as may be recognized by the US Government . . .
Since the 1960 Law of the Sea Conference there has been a trend
toward the establishment of a 12-mile fisheries rule in international
practice. Many States acting individually or in concert with other States
have extended or are in the process of extending their fisheries limits to
12miles. Such actions have no doubt beenaccelerated by the support for
the proposais made at the Geneva Law of the Sea Conferences in 1958
and 1960, of a fisheries zone totalling 12 miles as part of a package
designed to achieve international agreement on the territorial sea.
In view of the recent developments in international practice, acfion
by the United States at this time to establish an exclusive fisheries zone
extending 9 miles beyond the territorial sea would not be contrarv to
internïiional lau. Il ihoiild bc cmphasired that such action would~iiot
extend the territorial se;i bcyond Our tradiiion;il 3.milc Iiniit and irould
not affect such traditional freedoms of the seaas freedom of navigation
or of overflight. With one or two possible exceptions. ilis no1likely tbat
such action would be unfavourably received by other governments in
view of the provision for recognition of traditional fishing, which the
Department regards asa desirable provision.
In the above circumstances, the Department has no objection from
the standpoint of US foreign relations to establishine.a 12-mile exclusive
fisheries zone s.ihject Io the coni~nuation of such icid:tionïl fishing by
furcign States as 1113~hc recogni7ed by the US Government . ." (This
lctter hïs beenrcprintcd in I,ir<~rnor~o»o Lletal .Iluir~riols.Vol. V, p. 616.)
53. One of the most significant features of the history of this American
legislation is the reception which it received abroad. The Government of
Japan which was mainly aiïected thereby now made no attempt ta dispute
the legality of this legislation. Instead, on 9 Mav 1967. Jaoan concluded a
seriesof agreements with the Government of the Ünited~tates, under which
il agreed, subject to the continuation of certain traditional fishing rights in
certain areas on the previous level, to "take necessary measuresto ensure
that vesselsand nationals of Japan would not engage in fishing, except such MEMORIAL ON THE ~IERITS 229
fishing as listed below, in the waters ivhich are contiguous 10 the territorial
seaof the United States of America and extend 10a limit of 12 nautical miles
from the baseline from which the United States territorial seais measured".
The various agreements between Japan and the United States, concluded
on 9 May 1967, are reprinted in Internufiano/ Lego/ Moferiols, Vol. VI,
pp. 745-759.
-4. I- vie~ ~f .~e ~ ~ ~ oractice described above. il can be areued with
-
good ground that a new rule had emerged which entitled a coastal State to
extend ils fisheriesjurisdiction to 12miles from the coast or, more accurately.
from the baselines from which its territorial sea is measured. This ~taii
practice was founded upon the co~zsensnw shich had emerged at the 1958and
the 1960 Conferences and which itideed had fdiled by only one vote 10 be in-
c-.norated in a Convention 10 be adooted bv the 1960 Conference. The new ~~
riile had Io~nd e~pression in numeroiis tntcrnatii>n:il agreeinent5 aiid acii of
nlition~l leciilliti~itisIIrras licquisiced in b) the \,lis1mqority (if St;itcr. evcn
~ ~
those whohad hitherto been most conservative in their aooroach. Il is true
that claims have been made by certain States to even wide; iimits of fisheries
jurisdiction, sometimes as a separate jurisdiction and sometimes as a part of
the territorial sea. But none of these wider claims had behind it the authoritv
of the Genevx Confercncer or :III) conipsrahle cxprçsston of intcrn~iion;il
opiniwi, nor the <rippdrt i>fsi~cli 3 \iide rJnge of St:trc pracricc, .tnJ ewry one
of them had been the subiect of formal and exolicit orotests bv other States.
55. While it can now be safely maintained ihat under interLational law a
State is entitled to extend its fisheries jurisdiction up 10 12 miles from the
coast, the question is still unsolved whether such State may then lawfully
exclude al1 foreign fishing vessels from this zone or whether and 10 what
extent fishing vessels of nations which have habitually fished in this zone,
must be accorded special treatment. The latter question will be discussed in
more delail later in this Part of the Memorial (see below paras. 126 10 144).
C. Claims by Coastal States for Fisheries Jurisdietion
beyond the 12-Mile Limit
56. Since the 12-mile limit for the coastal State's fisheries jurisdiction has
been generally accepted. claims for wider zones of fisheries jurisdiction have
been made. However, these claims Vary asto the grounds on which they have
been argued. None ofthem has until now found general recognition.
57. The argunients put forward by lceland and some other States in
support of their claini for a wider zone of fisheries jurisdiction beyond the
12-mile limit may be classified into the following categories:
(1) It is asserted that it is within the sole competence of each coastal State
to determine the litnits of its maritime jurisdiction up to a redsonable
distance froni the coast:
(2) il is asserted that the fiihery resources in the waters adjacent to the coast
form an integral part of the national resources of the coastal State;
~~, il is asserted that it is a resoonsibilitv. an,. ~ ~ conseauentlv within the
cornpetenci of the coastal ~tiie 10 ensure the proteciion of the fishing
grounds before its coast against overfishing;
(4) it is asserted that recent State oractice haschaneed the law: and
(5) it is asserted that a State mayclaim preferenti; rights in ihe exploitation
of the fishery resources in the waters adjacent to ils coast.230 FISHERIES JURISO~CTION
The claims made by Iceland and some other coastal States for a wider
fisheries zone will beexamined in this order in the following paragraphs.
58. On 9 November 1971,the lcelandic PrimeMinister madethe following
remarks on the legality of Iceland's casein a speech before the Icelandic Par-
liament:
"1 cannot see that Our ~rooosed extension of fisheries iurisdiction is
contrary ta any accepted inte;national law. It is a fact thG there are no
generally accepted rules in international law on the territorial limit.
Several efforts had been made in order to try to negotiate an arrangement
on such rules. first under the auspices of the old League of Nations at the
Hague Conference in 1930 and later under the auspices of the United
Nations at the Geneva Conferences in 1958and 1960. ..
But al1these efforts have heen in vain. An agreèment on the width of
the territorial sea has not been reached. And at present the Conference
on the Law of the Sea is scheduled for 1973. Lt is expected to deal with
this problem as well as with several others concerning the Law of the
Sea . ..
Since there are no generally agreed rules on the width of theterritorial
limit in terms of international law, it must be in the powerofevery State
to decide its territorial limit withina reasonable distance." (Cited from a
pamphlet entitled Icclond atid the Law of Sen,issued by the Government
of lceland 1972, pp. 31-32.)
This reasoning seems ta rest on the same concept as the statement contained
in the Lima Declaration of the Latin American States on the Law of Sea of
8 Aucust 1970.where itwas said that it was the "richt of the coastal State to
estabkh the limits of ils maritime sovereignty or jurisdiction in accordance
with reasonable criteria having regard ta ils geographical, geological and
biolocical characteristics. and the need ta make rational use of its resources"
(~~tleritarionaLlcgol ~areriolr, Vol. X, p. 207).
59. In order to show that this concept is contrary ta the generally recog-
nized principles of maritime law, it should be sufficient to recall thefollowing
dictitm of the Court in the NorwegianFisheriescase (I.C.J. Reports 1951, at
p. 132):
'Thc dcliniiiati<,n oi ieÿ :irca\ hÿs slva)s an iiitcrnaiional :tspect;it
canna1 hc dependcni mcrcly upon ihc niII of the coasial Statc 3% e\prcs-
sed in ils i1iunicio:i!.in ,\lthoii.h II titruc that the act of delimitaiion is
necessarily a unilateral act, because only the coastal State is competent
to undertake it.the validity of the delimitation with regard to other
States depends upon international law."
Therefore, if a coastal State claims iurisdiction over fisheries bevond the
12-mile limit which is now the widestlikit generally accepted in ~tatépractice,
the coastal State cannot rely on its own judgment but must show that such
claim keeps within the limits permitted by international law.
60. As the delimitationof the coastal State's jurisdiction over seaareas, as
the Court has said, has always an international aspect because it affects the
rights of other States in the useof the high seas,a coastal State may extend its
jurisdiction over areas of the high seasbeyond the 12-mile limit only if either MEMORIALONTHE MERITS 231
the law has chaneed bv eivina the coastal State a wider marain of iurisdiction
Or the States afected Consent to or acquiesce in the act& ofthe coastal
Siate. It is Icelnnd, not the Federal Republic of Germanywhich is challenging
the established law, and it is for this reason that the Government of the
Federal Republic maintains that the burden of proof that international law
now recognizes the right of a coastal State to extend ils jurisdictiobeyond
the 12-mile limit, rests upon Iceland. Although it should be for the Govern-
ment of Iceland to plead its casebefore the Court and to adduce the necessary
arguments for its claim for an exclusive fishery zone up to 50 miles, the
Government of the Federal Re~ublic will nevertheless comment on the
groiinJs by uhich Iceland niisht-xrgue for sn c.wcption to itie crtliblished
I;ia.or 3 change in th;itIla.In ihe absence of plcarlings by the Cioveriiinent
of Izclsnd. ilic Go\~eriinient uf ilic Federal Repuhlic lii5eliin ihe emhr-
rassing porition of being forced Io proceed on the basis of speculation about
the arguments on which lceland might wish to rely.
61. The Government of the Federal Republic of Germany hopes that the
Government of Iceland in due course files a Counter-Memorial in accordance
with the Order made by the Court on 15 February 1973, so that the Govern-
ment of the Federal Republic will then be able to deal by way of Reply with
any argument advanced by the Government of lceland which they have not
adequately anticipated in thisMemorial.
2. THE ASSERTION THAT THEFISHERYRESOURCEIN S THE
WATERS BEFORE THECOASTARE PART OF THE COASTAL
STATE'SNATIONAL RESOURCES
(a) The ConrinentalShelj Concept
62. The Government of lceland seemsto believe that it could draw some
support for its claim foran exclusive fisheries zone from the concept of the I
continental shelf by which sovereign rights over the resources of the shelf are
accorded to the coastal State. The Government of lceland seemsto maintain ,
that the continental shelf concept could be applied, if not directly, at least
per analogiarnto the fishery resources as well. Reference to such a line of
thought had already been made in the Resolution adopted by the lcelandic
Parliament (Althing) on 15 February 1972 (see Annex G to the Application
instituting proceedings in this case), in the lcelandic Memorandum on
FisheriesJlrrisdicrionin Iceland of February 1972 (see Enclosure 2 to Annex
H to the Application institutingproceedings in this case,p. 27). in the state-
ment of the Minister for Foreign Affairs of lceland during the debate in the
General Assembly of the United Nations on 29 September 1971(ibid., p. 52).
and in the statement of the Minister foFisheries of Iceland at the Ministerial
Meeting of the North-East Atlantic Fisheries Commission on 15 December
1971(ibid, p. 55).
63. It is evident that the Geneva Convention on the Continental Shelf of
29 April 1958does not support that proposition since, by the very terms of its
Article 2, paragraph (4).the "natural resources" to which the Convention
aoolies. do not extend to free-swimming fish (seeabove oaras. 15to 18of this
~a;t uf'ihe hlemorial). Thiis. the .icccpkd docirine lhs continenl3l shelf. as
eiiibodied in lhe 1958 Con\eniii>n and xs refle~iing custoiiiary inlcrnlitiunal
law. is auite contrarv to the Icelandic ~ro~osition.~lt is. in a very real sense.
inadmisiible to quesiion the distinction made in the established iaw between
sedentary species, which pertain to the coastal State, and free-swimmingspecies, which do not; or even the distinction between the mineral resources
of the shelf and the fishery resources of the high seas above the shelf. That
distinction is one which has emerged in State practice. which has been en-
dorsed and accepted by the 1958 Convention and which is now the law. As
the Court itselfstated in the North Sea Conrinenlol S/re//cases,
"... the sovereign jurisdiction which the coastal State is entitled to
exercise . . not only over the seabed underneath the territorial waters,
but over the waters themselves, ... does not exist in respect of conlinenfol
shelf areas where rhere is no jiirisdicrion over the sr~perjacenlwalers .. ."
(I.C.J. Reporrs 1969, p. 37 (italics added)).
Moreover, the distinction is not only the established law; it rests upon sound
and compelling reasons. It cannot be supposed that the 1958 Conference
made a distinction which was nonsensical and unmerited. On the contrary,
that distinction was based upon practical and persuasive reasons which
exclude application of the continental shelf doctrine on the fishery resources
above the shelf, even per analogiam.
64. There isrfirst, the reason that unlike free-swimming fish, the mineral
resources (and also the sedentarv speciesto some extent) are fixed and immo-
bile su tliai their aiiarhiiiento Ïhr' rhelf asa natural prolong~tion of thc land-
niass of the co:iiial Staic i< a physlcal faci. A furrher. and itiust ior~ipr.lling.
reason is that the ex~loitation of the mineral resources of the shelf cannot be
ücc~iinplishc,l \ritho.itihc dc\clopmcnr oi a highly cl.ihor~ic syqieni of ,,O-
operaiion :siid c<>-urdin:iii(>nuiih the ~i~;isi.îlSraie ,\n)onc fiiiiiilxuiih the
tc~hniqucr of oiT.'-ihorcdrilling aiII knuw of the chien1 to ahiih shore-hased
f~~i~illczare. in prdctic;il icrnls. ç~~enii3trithe condiici of thcse opcratisns.
II \ras. rhcrefuie, gcnerally ;icccptcrl ihsi co3stal Siatcs should have ehclusive
rights over these resources. For non-coastal States ta have begun such opera-
tions off the shores of the coastal State would have been to initiale situations
with far-reaching eiïects upon the coastal State. The same considerations
simolv do not aoolv to the free-swimmine. soecies of the high seas. Their
"renekable" chaiacier called for a quite différent treatment,-principally in
the sensethat the conservation of such resources was regarded as a matter of
obli~alion for al1 States. iust as the benefit of the resources pertained to al1
~tacs. The allocation ofiklusiverights of exploitation of a high seasresource
ta coastal States would have deprived many States of their existing rights. It
would have produced discrimination against land-locked States. It would
have afforded no real guarantee of the conservation of those resources for
the common benefit. Indeed, given the mobility of free-swimming fish, there
existed no basis for a conceptual attachment to the coast of one State.
65. In a meeting of the Committee on the Peaceful Usesof the Seabed and
the Ocean Floor beyond the Limits of National Jurisdiction, held on 10
August 1972.the lcelandic delegate had maintainedthat the fishery resources
before the coast belong to the ciastal State by the same token as the resources
of its continental shelf becausethe coastal area formed an ecological whole,
and it was unrealistic fhat foreigners could be prevented from extracting oil
from the continental shelf while being allowed to destroy other resources
based on the same seabed.
UN doc. A/AC.138/SR.77-89, p. 66.
This reasoning is a typical example of a widespread tendency ta confuse the
utilization and conservation asoectsof the claims for a wider zone of fisheries
jur~sdiciion. Ei~~logicnlxrguiiienis. in particular the proteciion of the mîrinc
envirunnieni and ihe prcscrvation of lish stocks arc in no \id).rclev;inl to the234 FISHERIES JURlSDlCTlON
earlier statements, this concept achieved a more precise formulation in the
Montevideo Declaration of 8 May 1970:
The text of the Montevideo Declaration is reprinted in Infernafional
Lepl Maleriols, Vol. LX, p. 1081. The Declaration was signed by the
Governnients of Argentina, Brazil, Chile, Ecuador, El Salvador, Panama,
Peru, Nicaragua and Uruguay.
and, more recently, in the Declaration of Santo Domingo of 9 June 1972,the
relevant passageof which reads as follows:
"1. The coastÿl State has sovcreign rights over the renewable and non-
renewable natural resources, which are found in the waters, in the seabed
and in the subsoil of an area adjacent to the territorial sea called the
oatrimonial sea.
2. The coastal State has the duty to promoteand the right to regulate
the conduct of scientific research within the patrimonial sea. as well as
the rieht to adoot the necessarv measures to orevent marine oollution
anJ to cnsure its sovcrcignty o\cr the resourcesof !lis area.
3. The breddih of thi, 7one should bs the ,iihje<t of an internxtional
aereement. . .ferdblv of a world-wide scooe. ~he whole of the area of
the territorial seaand the patrimonial sea,taking into account geographic
circumstances, should not exceeda maximum of 200 nautical miles.
4. The delimitation of this ~o~ ~~~-~en two or more Statesshould be
carried out in accordance with the peaceful procedures stipulated in the
Charter of the United Nations.
5. In this zone ships and aircraft of al1States, whether coastal or not,
should enjoy the right of freedom of navigation and overfiight with no
restrictions other than those resulting from the exercise by the coastal
State of ils rights within the area. Subject only to these limitations, there
will also be freedom for the laying of submarine cables and pipelines."
(The text of the Santo Domingo Declaration is reprinted in Inler,rofional
Lena1 Marrriols, Vol. XI, p. 892. The Declaration was signed by the
Governments of Colombia, Costa Rica, Dominican Republic, Guate-
mala, Haiti, Honduras, Mexico, Nicaragua, Trinidad and Tobago,
Venezuela; the Governments of the following States participating in the
Conference did not sign: Barhados, El Salvador, Guyana, Jamaica,
Panama.)
68. The concept of the "patrimonial sea" by virtue of which a coastal
State should be entitled to claim sovereignty over al1the economic resources
of a marginal belt of 200 miles before its Coast, is still inconsistent with the
practice of the majority of States today; claims hy Latin American States in
this respect have not been recognized by other States afiected thereby, as will
be shown later in this Part of the Memorial. Accordingly, this concept of a
"patrimonial seaumust also be viewed as a proposal de legeferenda which the
States concerned will propose for consideration at the forthcoming United
Nations Conference on the Law of the Sea.
69. Whether the proposals based on the "patrimonial sea" concept or
other similar concepts, will commend themselves to a sufficient majority of
States to become law must be a matter of conjecture. It is clear that there will
be opposition to them-and, indeed, already has been opposition to them-
no1 only from thetraditional distant-water fishing States but also from
developing States who foresee that they may themselvesbecome distant-water
fishing States in the not too remote future, and from land-locked Statesor MEMORIAL ON THE MERITS 235
other States for whom, by reason of their geographical situation, the concepts
hold no attraction. Whatever might be the merits of these proposals, they do
have a real relevance for the case before the Court in emphasizing that the
issues are siill far too open for these new concepts to be treated as anything
other than possible indications of the way in which the law may, one day,
perhaps, and no doubt with many qualifications which cannot as yet be
envisaged, tend. They do no1 represent the larv nosv.
70. It is. in anv event. no1 clear whether lceland relies on this conceot of
the '.pntrimonislre.i". Indced. cl:iimr b-iscd on ihat cijncepi uoiild diffcr in
sc\,cr.iI reipccir fr<im ihc claim ÿciu:illy l'ormiil3ted by Iceland. ,\pari froni
po\\ihle difirenie\ in the breidih of the 7one clai~iicd. the "p-itrinionial sc;i"
s,inccpi h:!, no iie;eiç.tr! c<iii!ie:i.on uith itic contin~mtal shclf'.irhcrc..j ilie
Icel~ndic cl:iini appcar, tu re$l up<In -iconincntdl shelf coiiccpt. Sor Jocs
the "patrimonial sea" concept necessarily envisage the degreeof exclusivity of
fishing which the Tcelandic claim does.
(c) The Docrri~ieof "PermatretrlSovereigniy oi.er Nali/ral Resoi~rcer"
71. Closely linked with such concepts as that of the "patrimonial sea" is
the doctrine which has become known as the doctrine of "Permanent Sover-
eignty over Natoral Resources". Tt shoiild be made clear that. except to the
extent that the doctrine is alleged Io have some besring on the limits of a
coastal State's iurisdiction in fisherv matters in the waters outside its
trrritortal sea. th,\ .V.leriiorial is noi conccrncd iiith qiiciiioiircl;iiing iu ihr
iruc seopeof ihe docirine or ivith argiimïni.. tending io estdblish or ncgIic the
moral o; oractical iustification for i<or that otherwise go .o its merits. or with
its legal status and validity, or with any other matters of that sort.
72. The advoc~cy of the doctrine has a history which goes back some years
but il is onlv within recent months-long afier these ~roceedings.had been in-
siit.iii.d-ih.tt:in). 4iir.iirpt Iid.; hccn i~i;~ile~leriJ 11 I<IJcil uith isci.cs of
the k.nJ n<>i<kfore rlir C'c>iirr.Tlic Tirsit>;::iir>l\rai d~rtng ihe 27th C;zncr.il
A\,emhlt of the Lniicd N-itioiiç in IV72 alien 3 dr~fi rcsoliition on thir iopic,
co-spons.ored by Iceland contained an operative paragraph in the following
terms:
"The General Assembly ... Reaffirms the right of States to permanent
sovereientv over their natural resourccs. on land within their interna-
tional boundaries, as %,el1as those found within the sea-bed and subsoil
thereof within their national jurisdiction and in the superjacent waters."
73. Despite the strong reservations and indeed opposition that were ex-
pressed to the obviously question-begging nature of the phrase "and in the
superjacent waters", and despite an amendment moved by Afghanistan (with
the support of a number of other States including many of the land-locked
States), Io record that decisions concerning States national jurisdiction over
the territorial sea, contiguous zone, seabed and subsoil and Ihe superjacent
waters belonged to the forthcomitig Law of the Sea Conference (an amend-
nient which was rejected in the Plenary Meeting by 54 votes to 45, with 28
abstentions)...he draft resolution !vas adooted bv the Second Committee and
eventually by the General Assembly, becoming General Assembly resolution
No. 3016 (XXVII). The voting in the General Assembly was 102 in favour,
none against and 22 abstentions. In due course a resolution in sirnilar terms
was adopted by the Cornmittee on Natural Resources of the Economic andSocial Council at its session in New Delhi in February 1973 and again by
ECOSOC itself at ils sessionin New York in AprilIMay 1973.
74. If the Government of Iceland would wish ta areue -hat these various
reiolutii>ns constiiutc legül authority for the prcsent claim of the Govcrnnieni
of IcclanJ ICIbccntiiled toexiend iheirc.;~lurive ii$hcricsjiirisdiciion o%erthe
iraters cmbrîced ht, a Iine 50 miles froni the coa4 uf I~.cllind. the f<illouinp,
observations are cailed for: Whatever weight it may be desirable ta attach to
views expressedhy the delegations of States in their discussion of resolutions
of this kind in the forums in fact concerned. resolutions of the General
Assembly plissed in circumsiances such a, thosc of the inriîni case-and. even
more so. rcsoluiionr of ECOSOC and resoli~iions i~fthe Naiural Kesources
Coniniiiiee of ECOSOC-are not themsclves cîwhle of amending interna.
tional law as expressedin the current practice of States and asembodied in a
number of international treaties. Such resolutions represent a composite
political package dealing with a number of topics and covering a number of
highly controversial political issues, most of which had no bearing on the
question of maritime jurisdiction. The fact that some States found it ex-
pedienf on this particular occasion to combine with other States to support
the resolution is not a reliable indication of what their legal opinions were
on the issue of maritimejurisdiction and how they will vote on that issueat
the forthcomina conference on the Law of the Sea Conference. The actual '
voting figures on the draft resolution and the various amendments that were
proposed, did not-proabably for reasons of political expediency-accurate-
IV refiect the state of o~inion on this matter. The study of the various speeches
and e~planliiions of voie delivercd in ihc courre of (he dcbaics shows ihxt il
was uell understood that. whïtever the re.i>lution itsclf mighl be taken to
nielin if Iitersll) con\iruedii was not cîr>~bleof prejud:iins (and most States
did not intendjt to prejudice) the decisions to be-taken by the Law of the Sea
Conference on what changes, if any, should be made in the law relating to
the limits of maritime jurisdiction. Statements ta that effect were made not
onlv bv those delenations which oo~osed or abstained on the vote on the
~U ~ ~
offinding words in the resolution kjncluding the delegations of the United
Kingdom and of many of the land-locked countries). They were also made
in very clear terms by a number of delegations who actually voted in favour
of the resolution. It should benoted herethat the voting in the plenary session
of the General Assembly proceeded in the following way (UN doc. AIPV.
2113, 18 December 1972, pp. 71-80): When the draft Resolution as proposed
by the Second Committee came up for adoption by the plenary session, the
delegate of Afghanistan, together with other land-locked States, tabled an
amendment to the preamble of the draft resolution which should read:
"Bearing in rnind that the question of the limits of States' national
jurisdiction will be dealt with by the forthcoming Conference on the Law
of the Sea."
When this amendment was put to the vote, it was rejected by 50 votes to 45,
with 28 abstentions. Then a separate vote was requested on the offending
words "and in the superjacent waters"; the vote was 74 votes to 26, with 25
abstentions, for retaining these words in the resolution. Alter this vote had
been taken the draft resolution asa whole was out to the vote and ado~ted bv
102 voies to none uith 22 abstentions. IIwould. thereforc, be misleadlng to
takç the Iîst votc asan indication of thr viens of C;overnnicnts: the preceding
votes rather showed that quite a number of States, probably also those ab-
staining, openly expressedtheir unwillingness to prejudice the decisions to he MEMORIAL ON THE MERITS 237
taken bv the Law of the Sea Conference on what chan~es, if any, should be
made inthe law relating to the limits of the coastal ~tate'smaritjme jurisdic-
tion. The Icelandic delegate himself had made clear his awareness of the
limitations within which the resolution necessarilv owrated. In the oreceding
debatc in the Second Coniniiriec of the General~~ssenibly on 29 ~o\,cnih&
1972, the Icelandic dclcgatc snsuered to criiicirnis rsiscd ïgainsi the inscrtion
of the words "and in the superjacent waters" with the following remarks:
"The CO-sponsors had, however, carefully refrained from touching
upon the leaal issue of the delimitation of the area of national jurisdic-
tion; that question could only properly be solved by the forthcoming
Conference on the Law of the Sea." (UN doc. A/C.2/SR. 1502,p. 12.)
75. Accordingly, the Government of the Federal Republic of Germany
submits that, whatever might be the true nature and true legal effect of the
doctrine of "Permanent Sovereignty over National Resources", it does not
constitute any legal authority for the claim of lceland to be entitled to the
exclusive exploitation of al1the fishery resources in the waters adjacent to its
Coast.
3. THE ASSERTION THAT RECENTSTATEPRACTICEHAD CHANGED
THE LAW
76. The Government of lceland has argued that, since a number of States
has in recent times extended the limits of its territorial sea or the limits of its
fisheries iurisdiction bevond the 12-mile limit. there was no international law
inexistence which wouid require a coastal lat tto keep wiihin that limit and
that, consequently. lceland could not be accused of breaking any rule of
international law bv the extension of its exclusive fisheries zone UD to 50
miles. On 9 ~ovem6er 1971the lcelandic Prime Ministerspeaking before the
Icelandic Parliament relied particularly on this point; he said:
'
"1 cannot see that Our oro.ose. extension of the fisheries iurisdiction
i.contriry to any accepicd intcrnation.il Ixw. II is;ifcict thai ihcre are no
gcnerllly accepied riilcs in inicrnaiional Is\i on ihe terrltorisl I.iiii. ."
After referring to the failure of former conferences to reach agreement on the
breadth of maritime iurisdictional limits. he went on:
"The evoluiion.rince then h3s been ihai rcvcral Sisies have euendcd
iheir territorial limil. sonie to 12 milc5 snJ oihers much further This
xlso holJr true for tho\e Si:iter tihich il one lime suoported ihc 3-mile
rule. Therefore, 1 think that no one seriously conside& today to claim
that the 3-mile rule is a customary international law. And it is just as
wrong to insist that a 12-mile limit is a customarv international law.
This Ysimpossible uhcn the faci is. thai ai leïst 20.~tri1es hxve a widcr
limit ihnn 12mile5. sorne ofihem e\cn 200nautical miles. lt is noi known
that special action h3s bcen tzikcn aaainst ihose Siarcs. Uiidcr rhcsc cir-
cumstances~-- is. ,f course. im.oss7~~~~~o insist t~a~ international ~c~ ~
tomary law is in existence concerning the extent of the territorial limits."
(Cited in the pamphlet Iceland and the Law of rhe.Sea, issued bv the
Government of lceland 1972, pp. 31-32.)
The contention of the Government of Iceland that, becauseof the uncertainty
,of the law in this respect, it rested within the sole competence of the coastal
State to decide on the outward limit of itsjurisdiction over the waters before
its coasts, has already been refuted earlier in this Part of the Memorial (seeabove oaras. 58 to 60). The araument that a number of States had alreadv
extendid their maritime jurisdiCtional limits beyond the 12-mile limit, could
have a legal relevance only in so far as it might imply that the 12-mile rule
which is based on accepted State practice, had been replaced by a new rule
based on a new State practice which allows States to extend their maritime
jurisdiction. and in particular their fisheries jurisdiction ïarther out into the
high sea. Before passing ajudgment on the weight of this argument, it will be
necessary to examine the State practice on which the Government of lceland
relies.
77. While the ~ractice of States to claim a iurisdictional limit of 12 miles
eithcr for fisheriesjurisdiction or for al1purpases, had been gradually accord-
ed general acceptance, the practice which lceland wishes Io invoke to support
its extensive exclusive fishery claims is, in contrast. contrary to the present
law and has been the subject of repeated protest by those States whose
legitimate interests on the high seas have been adversely affected by that
~ractice. It is inconceivable that a new customary law could develop uDon the
h,~s~of iuch a minority practicc. contrary tu the r.it<iblcshcd I<iu <ini to the
prïctice or thc grcat m<ijor:ty uTSritei anJ in ~hcfacc ofrcpe~teJ protcst by
those States adversely affected.
78. The entent of this minority practice must now be examined. Not al1the
legislaiion of the various States concerned is available and, particularly in
relation Io rfcent claims, reliance has to be placed on secondary sources;
what follows is therefore a summarv of the oosition which the Gover~m~nt
of the Federal Republic of Germany believe to be as accurate as reasonably
possible, based upon the best evidence available to them. ln broad terms, il
appears that in addition to lceland some 20 States daim exclusive fisheries
jurisdiction beyond 12 miles: these States are Argentina. Brazil, Chile,
Ecuador, El Salvador, Gabon, the Gambia, Ghana. Guinea, Haiti, the
Maldives, Morocco, Nicaragua, Nigeria, Oman, Pakistan, Panama, Peru,
Senegaland Uruguay. That is. in total, in addition to lceland 20 States out of
the 114 known coastal States. Then there is Cameroon which in 1967 legis-
lated for a territorial sea of 18 miles but is not known to have yet fixed by
decree any limit for exclusive fishing. Costa Rica, by decree in 1972, claimed
a 200-mile zone, but expressed as a zone for conservation powers and not
exclusive fishing. Mauritania claimed a 30-mile territorial sea in 1972,
although it is not clear whether this claim has superseded the 1963 Code
which established a 12-mile fisheries zone, with the preservation of certain
foreign fishing in the outer 6 miles. Sierra Leone has claimed a 200-mile
territorial sea by the lnterpretation Act of 1971, although, again, it is not
certain whether this involves a claim to exclusive fisheries within the same
limit. The Republic of Viet-Nam by decree in 1972 established a 50-mile
exclusive fisheries zone, biit licenses fishing by foreign vessels. However, even
if one adds this second category of claims which are not so clearly exclusive,
that still produces a total of only 26 States out of 114.
This is based upon the information contained in Limirs and Srarr<sof rhe
Terriroriol Sea, E.rc111sivFeishiiig Zones, Fishery Co,iservario,tZones and
the CotrriiieirralSltelJ FA0 Fisheries Circular No. 127. FID/C/127, Rome
1971; also on I~irerizarioitalBoniidary Sri~dy,Ser. A, Limits in the Seas,
"National Claims to Maritime Jurisdictions", No. 36, March 1973, issued
by the Geographer to the Department of State. plus such additional infor-
mation as the Government of the Federal Republic have been able to
gather. The Republic of Korea has been excluded because, although the MEMORIAL ON THE MERITS 239
Presidential Proclamation of 18 January 1952 purports to estahlish an
exclusi.ve zone beyond 12 miles, in practice, and by virtue of the Japan/
Korea Fisheries Agreement of 22 June 1965, the right to an exclusive zone
is restricted to 12miles. A numher of States have madejurisdictionalclaims
to "conservation zones" in the waters of the epi-continental sea but, on
examination, it appears that these claims are not claims to exclusive
fisheries and have no1 heen treüted as such hy the FA0 publication cited
above. In this category are India, Sri Lanka, United States.
Simply on those figures it is apparent that this minority is nothing like suffi-
cient to constituie the "very widespread and representative participation" or
the "eeneral oractice acceoted as law" which the Court and Article 38 of this
-
Statute have required to constitute a customary rule. Even apart from the
total inadequacy of the numher of States making these minority claims, there
are two furtherfeatures of the oractice which destrov an. ar-ument that such
priislice niight hïve cre3ie3 nèw custom~r~ rule ofiliv,.
79. The iirsi fcdturc is the rxi>tencc of emphliiic protbytSiaies advcrsely
anéiied. The "rotest of the Govcrnment of the Federil Rep~blic of Germiiny
against the pksent Tcelandic claims is sufficiently evideocéd hy the proceed-
ings now hefore the Court. The position of the Government of the United
Kingdom is similarlv attested. The Government of the Federal Reuuhlic of
~ermany for ifs pGt, has consistently protested against formal claims hy
other governments to exercise fisheries jurisdiction beyond 12 miles from
their coasts whenever such claims have come to their attention. How far
other States, aflected hy these various claims, have protested is not easily
ascertainahle since States are under no obligation to puhlish protests received.
Yet it seems clear that such clainu to exclusive fisheries iurisdiction beyond
12 miles have not met with the general acquiescence necissary to give them
the status of customary international law.
80. The second feature is the lack of uniformity in these various claims to
exclusive fisheries. For example, the Argentinian Fishing Law of 25 October
1967(Law 17.500) provides in Article 2 that:
"Resources within 12 nautical miles from the coasts may only he
exploited hy Argentine vessels.The Executive Branch shall also establish
annually an area of the Argentine territorial seareservedfor exploitation
by Argentine vessels."
Thus the absolute orohibitinn of foreien vessels is confined to the 12-mile
yonr and Gr; 8802 & 22 ~ovekbe; 1967(tlr>/c,iii Oficiul, 24 Novcmber
1967) in faci promulgatcs Provi\ion31 Regulai~ons for Grantiiig I'ermits to
1:orcign Ships to Ehploii the I.iving Resources of ihc Argentine Terrilorial
Se% A newly issucd Decree No. 20.136 of 6 Fchruary 1973sccmr. hoirevcr. to
he more siringcnt and aimr ai 3 ioial excluston ofrlll Foreign fishing within the
200-mile zone.
81. The Brazilian legislation is different. Artic4e of Decree-Law 1.098
provides-
"The Brazilian Government shall re-ulate fishin". bearin- in mind
nationalexploitationand conservation of the living resources of the terri-
torial seaand also research andexploration activities.
(1) Regulations rnay determine the zones in which fishing should be
reservedexclusively to Brazilian vessels.
(2) Tn the zones of the territorialsea that remain open to fishing for
foreign vessels,such vesselsmay carry out their activities only when240 FISHERIES JURISDICTION
they are duly registered and authorised and they are obliged to
respect Brazilian regulations.
(3) Special regulations for fishing, research, and exploration of the
territorial seamay be defined by international agreement, in principle
on the basis of reciprocity."
This Dccrce-Law, ufitsclf, 15 no1inconsistent wilh thcgencr;il cLstoni3ry ri.lc:
it uould le~veopcn tlic posribility of regiilaiiiig fi>hrries he)oiid I? niilc\ hy
aereement. Ils onl\ hs Dccrce 68.459 ibf I A~rii 1971(D~GrioOlicial, 2 Anril
1571). made pursuantto Article 4, that the éxclusivefisheries ;one is deier-
mined IO be 100miles, and even here itis not clear how far this is based on a
scientifically proven need for conservation rather than representing an ex-
clusive claim simplicirer.
82. The Chilean legislafion is diiïerent again. The Presidential Declaration
of 23 June 1947, contains the proviso that "the present Declaralion of
sovereignty does not disregard the similar legitimate rights of other States on
a basis of reciprocity . .." and subsequent Decree 130 of 1I February 1959,
Decree 1078 of 14 December 1961 (Diario Oficial, 16 January 1962). and
Decrec 332 of 4 June 1963,envisage the grant of permits Io foreign vesselsto
fish "in Chilean jurisdictional waters" and "within the 200-mile zone estab-
lished in the Declaration of Santiaao . ..".
83 The miinicipal 13ii<> ~riiador is niorc akinIO thal orllrazil.Arlicle 628
of the Ciivl Code (.%oplc,,ro,rtool H<.~,t,tro0fic;ul. 20 Nuicnibcr 1970)criab-
Iishcsa zone dcrcribcd ai .'the 3diaccnt bed.10 a dirtancc or 200 nailtical i~iilcs
measured frorn the low-water niark . . ~i~erent zones of the territorial sea
shall be established by exccutive decree .. .".The possibility of fishing by
foreign vessels under licence is not, however, excluded: it is envisaged speci-
fically by the Law on Fishing and Fishery Development No. 110-CL of
6 March 1969 (Regis1i.o Oficial. 10 March 1969), and Decree 7733 of 15
October 1969(ihid., 27 November 1969).
84. The Iaw of El Salvador (1955 Fishing Act) distinguishes between
coastal fishing (up to 12 miles), sea fishing (between 12 and 200 iiiilcs) and
deep-sea fishing (beyond 200 niiles) and confines coastal fishing 10 nationals
or residents of El Salvador. However, Article 2 of the Law for Development
of SeaandDeep SeaFishing, issucd by LegislativeDecree 97 of 22 September
1970,defines "sea-fishing" asfishing between 60 and 200 miles rather than 12
and 200 miles. And Article 4 of the 1970La\\. goeson Io envisage the registra-
lion of even foreign enterprises ("any natural or juridical person, whether or
no1 a resident of the Republic") for either "sea" or "deep-sea" fishing. Thus
the law of El Salvador seems Io envisage regislration of foreign enterprises
whether fishing in the 60-200-iiiile zone or even beyond the 200-mile limit.
85. The Nicaraguan Executive Decree 1-L of 5 April 1965 (Lu Gaceto,
8 April 1965), establishes a "national fishing zone" up to 200 miles from the
Coast.Within this zone a licensing system operates under the Special Lawon
Fishing (Legislative Decree 557. 20 January 1961).
86. Haiti has an exclusive fishing zone of 15 miles (12 plus 3) by Decree of
6 April 1972. Panamanian law appears to make distinctions between different
speciesof fish. The provisions of Decree Law 17of 1959and Law 33 of 1961,
as revised by Decree 42 of 24 January 1965(Gocera Oficiul, 3 May 1969, refer
mainly to shrimp fishing; those of Decree 168of 20 July 1966(Gocela Oficiol,
26 July 1966). to anchovy and herring; whilst Decree 202 of 14 October 1964
(Garera Oficiol, 22 October 1965),appears to be of niore general application
in prohibiting "the taking of al1 marine species within the territorial sea or MEMORIAL ON THE MERITS 241
within an area 12miles from ttie coast, by fishing vesselsof 10 gross tons or
over . ..".However, by Law 31 of 20 February 1967(Gacefa Oficiai, 4 Febru-
ary 1967) Haiti has proclaimed sovereignty over a zone of territorial sea of
200 miles.
87. The Peruvian assertion of national sovereignty over the seasuperjacent
to the continental shelf dates back to Supreme Decree 781 of I August 1947,
and specified a limit of 200 miles. Subsequent decrees, however, namely, the
General Fishing Law (Decree Law 18810 of 25 March 1971 (El Periiano,
26 March 1971). and Suoreme Decree Oll-71-PE. of 25 June 1971 (El
piruano, 30 ~uné19711,do contemplate fishing activities by foreign vessels"in
Peruvian jurisdictional waters" (Art. 29) under licence.
88. ~r"guay has asserteda claim to a territorial seaof 200 miles.under Law
13,833 of 23 December 1969 (Didrio Oficial,5 January 1970), but under
Article 4 reserves commercial fishing to Uruguayan vesselsin a 120-mile zone
though "without prejudice to international treaties which Uruguay signs on a
basis of reciprocily"And under Article 5fishing by foreign vesselsbetween 12
and 200 miles is permissible under licence.
89. Outside Latin America, there is further evidence of variation. Gabon
claims a territorial sea of 25 miles, Gamhia of 18 miles, Nigeria of 30 miles,
Guinea of 130 miles, Morocco a fishing zone of 70 miles, Oman of 50 miles,
Seneealof 122 miles. the Maldive Islands of 100miles. The most recent case is
Pakigan which claiAs an "exclusive fishery zone" of 50 miles.
90. It therefore appears that-quite apart from the relatively low number
of States-there is no bodv of uniform State oractice which could sumort the
assertion of a new customary rule of internat'ional law. There is no uk(formity
as to the distance of fishery zones; some are truely exclusive while others
envisage foreien fishine either under licence or vursuant to agreement: some
are bned upon the co~tinciital shclf concept înd roiiie are-not; sonie are
hsed irpon thc cl3im to conscrir reroiirccs and oihcrs xrc not. This hody of
State vractice which is mainlv confined to the Latin American and African
continent, is not more than &idence of dissatisfaction of these States with the
existing law; iflacks the necessary uniformity and general acquiescence by
those other non-coastal Stateswhose fishine riahts are affectedtherehv. At best
it could be maintained that therc is a tendeniy among part of theStates to
extend the limits of their maritimejurisdictiofarther out into the sea beyond
the 12-mile limit. But it is still comoletelv unsettled for what vurooses such an
extended jurisdiction could be claimed and how such an extension could be
reconciled with legitimately acquired fishingrights of other nations who have
habitually been fishing in this zone.
91. It is submitted therefore that the State practice described above in
paragraphs 76 to 90, does not provide a sufficien1 basisfor the emergenceof a
new rule of customary international law on which lceland could assert a
right to extend its exclusive fishery zone unilaterally beyond the 12-mile limit.
4. CLAIMS BY COASTALSTATES FOR EXTENDED ZONES OF MARITIME
JURISDICT~ON ONGROUNDS OF CONSERVAT~ON
(a) Iceland's Case
92. The Government of lceland tries to justifyits claim to extend the
Icelandic jurisdictionover the highseasfisheries before its coast by asserting
an urgent need for taking conservation measures with respect to the fish
stocks in this zone. In fact, this was the only groundinvokedby the Govern-ment of Iceland when it started its campaign for an extended zone of fisheries
jurisdiction as early as in 1948. The icelandic Law concerning the Scientific
Conservation of the Continental Shelf Fisheries, dated 5 April 1948, which
was and still is the statutory basis for al1the regulations relating to the exten-
sion of Iceland's fisheries jurisdiction after that date, including the Regula-
tions No. 18911972of 14July (see Annex A to this Memorial), did only refer
to the asDect of conservation: it authorized the Minister for Fisheries to
establish conservation zones ui to the limits of Iceland's continental shelf and
to issue regulations for the protection of the fishing grounds within such
zones; but itsaid nothing about the establishment of exclusive national
fisheries zones.
The text of the Law of 5 April 1948, together with the reasons which
accompanied that law when i: szr. submitted by the Government of
Iceland to the lcelandic Parliament, is reproduced in Annex B to this
Memorial.
Article I of the Law of 5 April 1948, which is the only relevant provi.sion
here, was worded as follows:
"The hlinisiry of Fisheries shall issue regulat~ons estîhlishing erpli-
citly bounded cunservation Lon?. ii,ithin the Iirnitsnf thccontineniaIshclf
of Iceland: trherçin il1 fisheriei shall he siihiîct ta Icclandic rules and
control; p;ovided ihît the i<in>eri,ation iiica;iireT nou in efleit $hall in
no uay be reduccd. l'lie Minisir). sh.111further tiiiie thc neces~îry rcpulx-
lion\ for the protection of the firh~iig grsunds aithin the s~id zones. The
FiskifL;I.~g I\lliii(Fi\hrriei S~ciet)~ iiid ihc Atvinniirleild Hiiki>l:i
(I.'ni\.ersiiy of IcelinJ Indiisirisl I<rse.irch L;~horioricsi shall he ion-
sulted prior to the promulgation of the said regulations.
This regiilation shall be revised in the light of scientific research."
93. The reasons which accompanied that Law did not mention the estab-
lishment of exclusive fishery zones eiiher; nor did it appear frorn the circum-
stances under which that Law had been enacted that the establishment of
such zones was contemplated. The reasons given by the Government of
Iceland merely stated that the economy of Iceland depended almost entirely
on the fisheries in the vicinity of its Coast and that for this reason the people
of Iceland had followed the oroeressive inl~overishment of these fishing
grounds with anxiety; after habing referred 18 the efforts to prevent over:
fishing by international agreement between the nations concerned, the reasons
continued as follows:
"On the other hand, there are the countries which engage in fishing
mainlv in the vicinitv of their own coasts. The ~ ~te~ have recoen-zed to a
growing extent that the responsibility of ensuring the protection of
fishing grounds in accordance with the findings of scientific research is,
above all. that of the littoral State. For thicreason. several countries
belonging to the latter category have. each for its own purpose, made
legislative provision to this end the more so as international negotiations
undertaken with a view to settline -hese matters have not beencrowned
with success,except in the rather rare cases where neighbouring nations
were concerned with the defence of common interests. There is no doubt
that measures of orotection and orohibition can be taken better and
more naturally by'means of international agreements in relation to the
open sea, Le., in relation to the great oceans. But different considerations
apply to waters in the vicinity ofcoasts." MEMORIAL ON THE MERITS 243
Here again, emphasis was placed on the conservation aspect, and no claim
was asserted, at that lime, to reserve the fishery resources in the waters ahove
Iceland's continental shelfexclusively to Icelandic nationals.
94. Later, in particular since the Icelandic Parliament had adopted the
resolution on Iceland's fishery policy on 5 May 1959(the relevant part of this
Resolution has heen reoroduced in oara. 5 of the Federal Reouhlic's Memo-
riil on the question of &risdiction), ihe claim for extendedjurisdiction for the
purposes of conservation gradually changed in10 a claim for an exclusive
fisheries zone. Nevertheless, the conservation aspect remained one of the
principal grounds on which the Government of Iceland's claim for such an
exclusive fisheries zone rested. Successive statements by representatives of the
l~~~andic Government reiterated that. in addition to the economic needs of
ihe 1rrl;~nd~cpeople. it uas the need fair iiik~ngconserv;ition measures u,hich
hiid promptcd ihe C;o\~çrniiicnt(if Iceliind to seek an cxiension of ils jurisdic-
tionover ihe high seas fisheries around ils coast.
95. Therefore il will be examined in the following paragraphs of this
Memorial whether the asserted need for conservation justifies the extension
by lceland of ifs fisheries jurisdiction up to 50 miles, or, as il has been for-
mulatedearlier, to the limits of Iceland's continental shelf. Here again, care
should be taken no1 to confusethe conservation and the utilization aspect of
such a measure; it should be distinguished how far the purported extension of
the jurisdictional limits relates only to the exercise of regulatory powers with
respect to the enactment of restrictions on fishing for reasons of conservation
and how far the extended iurisdiction shall also include the oower to restrict
or exclude foreign fishini to the benefit of Icelandic fisheimen. While the
urgent need for conservation measures might provide a ground to argue that
the coastal State should have sonie iurisdictional oowers bevond the oresent
limits for the purpose of enacting and ensuring the observince of necessary
conservation measures, such need provides no valid ground for the prohibi-
tion of foreian fishine in that zone. ~herefore the followinaou-.tions willhave
to be answered in 1Gland's case:
(1) 1s there a scientifically proven need for conservation with respet to fish
stocks in the water~ ~rn~-d Iceland?
(2) 1fthiineid is proved. would this fait entitle the Government of Iceland to
assume iurisdictional control over the waters of the high seas before ils
coast for enacting and controlling the observance-of conservation
measures?
(3) If Iceland would be entitled to assume a jurisdictional control over the
waters of the hie- seas~ ~fore its coa~~s for the ouro.se .f enactina and -
controlling the observance of con5crv;ltion measures. would this be a
suflicient Icgal basis to discrinilnate in the cxercise of these powers against
the fishine activities o~~other nations. and in oarticular Io exclude fishine
vessels of>ther nations (rom fishi&k these waters? -
(b) TheNeedfor ConservationMeasures
96. This is a question of Tact,but nonetheless it is a precondition of any
claim to adopt conservation measures. It will he recalled that the 1958Con-
vention on Fishing and Conservation of the Living Resources of the High
Seas defined "conservation" as "the aggregate of the measures rendering
possible the optimum sustainable yield from those resources soasto secure a
maximum supply of food and other marine products" (Art. 2). Moreover, the244 FISHERIES IURISDICTION
right of the coastal State to take measures for conservation was, under
Article 7 (Z),made suhject, inrer alia, to the following conditions:
"(a) that there is a need for urgent application of conservation measures
in the light of the existing knowledge of thefishery;
(b) that the measures adopted are based on appropriate scientific
findings;
(c) .. ."
97. The lcelandic propositions in this respect and the available evidence
thereto has heen fully reviewed in Part II of this Memorial. and il is not neces-
sïry IO reput here in Jetail the conclii\ions set out thciï uith re.pezt to the
siiuation of fisheries in the lCtS Iceland i\rea in yeneral and ~1findividu31lish
stocks in oarticular. These conclusions may besummarized as follows:
(1) No over-fishing has been asserted with respect to thosespecies which are
mainly caught by fishing vessels of the Federal Repuhlic of Germany
(Le., redfish and saithe).
(2) The situation of the cod stocks is under constant and thorough review hy
the conipetent international bodies, but lhere is yet no proof of over-
exploitation in the ICES lceland Area though the stocks are fully ex-
ploited. A danger of over-fishing might, however, materialize if the fishing
effort direcled to thecod stocks would he increased. It is only the Govern-
ment of lceland which has recently expressed the intention to turn its
effort niore to the cod fishery.
(3) The situation of the haddock stock has deteriorated according to catch
figures durinr! the last vears. but scientific evidence with resDect to the
causer UTihis situation 311J (sith respect IO the 3ppropriaie nieilsurïi foi
ronser\'ation is \tiII~cking. Thc pr<>teciionof the ip2\\,niiig gioiind, of
the h~ddock uhich l~ç \rithin the 13-iiiilï Iimit. is an Icelandi~ atyair.
(4) There is general agreement that, in view of the catch limitations intro-
duced in the West Atlantic, equivalent measures must be taken to prevent
the fishing effort from being diverted to the Iceland Area. There is no
indication that such a diversion is al present imminent, but the appropri-
ate measures for this purpose are under review by the North-EastAtlantic
Fisheries Commission: catch limitations had ~rohably already been de- .
cided upon by the oh missio w ere it not 10; the fact that lieland had
refused to ratify the extension of the Commission's power with respect
to catch limitations and restrictions of fishing effort.
98. In the desire to allay the fear of the Governnient of lceland that the
fishing effort in the waters around Iceland might increase, the Governnient
of the Federal Re~uhlic has reoeatedlv e,ore.sed ils willinan.ss to agree with
the Governnient of lceland oii rea\onable caish liniit:it~on<. uithout aattirig
for the Iirlding3 and decisionr of the coinpcicnt iniernalional hodies.
99. It is thereforc submitted that there is no scientifically attested urgent
need to take conservation measures to the effect that the preient fishing effort
in the waters of the high seas around lceland has to he reduced either gener-
ally or with respectIO certain species
(c) Tlie U,tilareral Exfeirsioit of Jz,risdictional Linthys rhe Coastal Sfare for
rhe Piirpose of Enacring Coriservatiotr Measlires
100. Even supposing that lceland would adduce evidence showing a need
for conservation measures, international law does not permit ipso facto
unilateral action by the coaslal State in so far as fishing activities of other MEMORIAL ON THE MERITS 245
nations are affected thereby. The underlying reason is that in such a case niore
interests are involved than those of the coastal State alone, and those other
interests must be safeguarded aaainst beina affected by unilateral actions of
the coastal State whi;h is mainly concernëd with the preservation of ils own
interests.
101. The authors of the Convention on Fishing and Conservation of the
Living Resources of the High Seas had been aware of that conflict of interests,
and so had been the States which iidopted this Convention at the Conference
on the Law of the Sea 1958. The Convention places the duty of acting to
conserve resources on al1 States not just the coastal State. In the terms of
Article 1 (2):
"All States have the duty to adopt, or to co-operate with other States
in adopting, such measures for their respective nationals as may be
necessary for the conservation of the living resources of the high seas",
and in the terms of Article 4 (1):
"If the nationals of two or more States are engaged in fishing the same
stockor stocks of fish or other living marine resources in any area or
areas of the high seas, these States shall, at the request of any of them,
enter into negotiations with a view to prescribing by agreement for
their nationals the necessary ineasures for the conservation of the living
resources affected."
The whole emphasis is upon action by agreement. It is only when "agreement
with resoect to conservation measures" has not been reached that. under
Article y, the coastal State may proceed to take unilateral action. And even
such unilateral action is not final, but suhject to the right of the other States
affected to have recourse to the special Commission to be established pursu-
ant to Articles 9, 10and II of the Convention.
102. It is, of course, true thatceland is not a party10 this Convention. As
rem~ ~ ~ ~ ~lier~.the~a.estion whv a ~tate like Iceland. which ~rofesses to be
concerned about conservation, fails to accept and invoke exisiing machinery
which was desianed s~ecifically to deal with conservation is one which re-
quires to be answeredby ce lan Hd.wever, it is clear that the obligation to
proceed to deal with a problem of conservation by agreement rather than by
unilateral action is founded not irpon this Convention, but upon principles
and the practice of States. The resolution on Special Situations relating to
Coastal Fisheries (text, see para. 26 of this Part of theMemorial) which had
been adopted by the Geneva Conference on 26 April 1958, with the special
situation of Iceland in mind. recommended "agreed measures", but not
unilateral action. The practice of States abounds with examples of measures
for regulating fisheries which have been taken by agreement between the
interested States. The following is an illustrative rather than an exhaustive
list.
103. The Norrh Seo and rhe Arlonric: the Convention for Regulating the
Police of the North Sea Fisheries of 1882(seepara. 5above) initiated a pattern
of international CO-operation which was continued in the Convention for the
Regulation of the Meshes of Fishing Nets and the Size Limits of Fish of 1946
(231 UNTS. 199) and this, in turn, was replaced by the North-East Atlantic
Fisheries Convention of 1959 (486 UNTS, 157; parties are Belgium. Den-
mark, France, Federal Republic of Germany, Ireland, Iceland, Netherlands,
Norway, Portugal, Poland, Spain, Sweden, United Kingdom, USSR).
Comparable CO-operation was provided for by the North-West AtlanticFisheries Con8,ention of 1949(157 UNTS. 157; partie, are Hclgiuni. Bulgaria.
Canada. Dcnniark, France, Fedcral Republic or Gcrmany. Iceland, Italy,
Janan. Noruav. Poland. Portueal-.Snai.. Un.ted Kinadom. Unitcd States
an'd ksi). diiling uiih an areï including the ~cufouidland Grand Banks,
which had nroduced tishing controvcrsics for sonie 400 ycdrs. Thcrc may be
cited. in addi~ion~. the ~tintic Tuna Convention of 1966 (6 Inrernarional
LP~UI Materialr (1967), 293; signed hy Ilnitcd States, pain; Korea. Japan)
concluded under the au5piccs of FAO; the US.4 USSR Agreement on
Fis~ ~ , - -~-~~~~~ the Western~ ~ras~of the .Middle Atlantic Ocean of 1967
(7 International Legal Marerials (1968), 144; renewed in 1968, 8 Inrernalional
Legal Marerials (1969), 502); the USAIUSSR King Crab FisheriesAgreement
of 1969 (8 International Legal Materials (1969), 507); the USICuba Shrimp
Convention of 1958 (358 UNTS, 63); the BrazilIUSA Shrimp Conservation
Agreement of 1972 (11 International Legal Materials (1972), 453); the Con-
vention on the Conservation of the Living Resources of the South-East
Atlantic of 1969(Revuegénéralede Droit in~ernarionalpuhlic, vol. 74 (19701,p.
1012); the Canada/Norway Agreement on Sealing and the Conservation of
Seal Stocks ~f ~ ~~ (Lav. Ch,.ch~ll ~ and Nordauist. New Directions on rhe
Iuw o/thr Seap, p. 414); and the Icel3nd ~oru,a; USSK Agreement of 1972
on the Atlanto-Scandian Ilerring (ihirl. p. 449).
104. The Balric: A Convention of 1929(115 LNTS, 93; parties \iere Den-
niark. Cermany, I'oland. I)an7ig, Sueden) pruvided for cluscd scasonr and in
1932a Convention for Plaise Fisheries in the Skagerrak, Kattcgït anil Sound
(89 LYTS. 199: ~arties iicre Swcden. Denmïrk. Noru,avl ua, concluded.
Denmark,' ~wedin and the Federal ~e~ublic of Germany concluded an
Agreement for the Protection of the Salmon Population in the Baltic in 1962
(Lay, Churchill, and Nordquist, op. cil., p. 446). More recently there have
been the Seal Fishing Agreements between the USSR and Finland, the latest
in 1969(9 InternarionalLego1 Malerials (1970), 507).
105. The Black Seo: A Convention regulating fisheries in this area was
concluded in 1959 between Bulgaria, Romania and the USSR (377 UNTS,
---,.
106. ThePacijc: This area has seena considerablenumber of conservation
agreements: the North Pacific Ocean Convention of 1952 (205 UNTS, 65;
parties were United States, Japan, Canada); the Alaska Crab Agreement of
1964 (533 UNTS, 31; parties are Japan, United States); the Agreement on
Fishing off Alaska of 1964 (4 lnrernational Legal Materials (1956), 1976;
parties are United States, USSR); the North-West Pacific Ocean Convention
of 1956 (53 AJIL (1959), 763; parties are Japan, USSR); the North Pacific
Fur Seals Convention of 1957 (314 UNTS, 105; parties are United States,
Canada, Japan, USSR); the Halibut Preservation Convention of 1952 (222
UNTS, 77; parties are United States, Canada); the Sockeye Salmon Agree-
ment of 1930 (184 LNTS. 305: narties are United States and Canada): the ..
Japan ~orean'~~reemen1 concérning Fishcries of 1965(4 I~rrernor!u,iul Le::al
Alurrrial~ (1965). 1128); the South Pdcitic Ci~ni,eniion 01'1952(Uttrtcd Nutiutis
Le*.irlariie Srrirr. Laiis and Keeulstions on thc Kccimc of thc Territorial
seas, STILEG/SER.B/~, 723; parties are Chile, Pe;u and Ecuador); the
JapanINew Zealand Fisheries Agreement of 1967 (6 International Legul
Materials (1967). 736): the Azreement on North-East Pacific Fisheries of
1973(12 ~n'rernaf;u~t~irelfol .3fkrial.i (1973). 550; partie5 xrc llnitcd St3tes.
USSR and this extended carlier agreements in 1967. IV69 and 1971); and the
Tra>nical Tuna Commission Con\,ention of 1949 (80 UK7:S. 3: vartics are
~nited States, Ecuador; Mexico, Japan, Panama, costa Rica, ~ol~mbia)Iceland, can be fully met under the North-East Atlantic Fisheries Convention.
This has already been demonstrated earlier in this Memorial (see Part II,
paras. 24 10 53). The North-East Atlantic Fisheries Commission's power and
the procedures available under the Convention provide the necessaryguaran-
tee for an impartial consideration of the relevant evidence, and, if the evi-
dence is held to justify it, for the taking of the appropriate conservation
measures. The record of the measures already taken under the Convention
include such measures as regulation of nets, return of undersized fish, oro-
hibition of landings of undirsized fish, clked seasons, and allocatio& of
quotas. Were it not for Iceland's refusal to ratify the extension of the Com-
mission's power. the Commission could already by a two-thirds majo~.ty
decide on hbligatory catch Itinitxtion,; hut even this iack of procedural potier
does nnt preclude member States to agree in the Commission on the conccrted
imposition ofcatch Iimitation~. As thii machinery isavailahle for the c<~nsidc-
ration of conser~ati~ ~ ~ ~,ems~ and~.s lone ~s~~t.-s not been convincinelv -,
show th31 thjs machiner) is unahle fi>dcal uith such prohlems imp~rtially
and eflectively. .here in no justification for uiiilateral action by an)' one mem-
ber State.
(d) The Ritle of Non-Discrimination
112. Even if it could be convincinelv areued that concerted action bv the
interested States within the framewoFC of ïhe North-East Atlantic Fisheries
Commission made too slow progress or was not adeqiiate to the pressing
needs of conservation-whichhad not been proven-and that Iceland might
then feel entitled, under the special circumstances of such a situation, 10
assumejurisdictional control over the waters of the high seas before ils Coast
beyond the 12-mile limit for the enactment of conservation measures, such a
jurisdictii~nal pouer, if recognired by the other intercited States. would no1
confer the right on Iceland to exclude the fislting rcssels of other States 10 the
benefit of the lcelandic fishine industrv. lrresoective of whether conservation
mcarures are tîken by deci5ion if the compcient Ftsheries Commission or by
sprsial agreement bctueen the Sixtes conicrtied or unilaierally hy the co3,tal
State, they mus1in anv case be aoolied without discrimination.
113. ~he convention on Fishini and Conservation of the Living Resources
of the High Seasof 1958made the principle of non-discrimination a basic and
expresscondition of unilateralaction by thecoastal State. Article 7,paragraph
(2), of the Convention provides that unilateral measures of theacoastal State,
if admissible under the conditions of Article 7, paragraph I (that is after
negotiations 10 that eflect have no1 led to an agreement within six months),
shall be valid as to other States only if the following three requiremerits are
fulfilled:
(a) that there is a need for urgent application of conservation measures in
the light of the existing knowledge of the fishery;
(b) that the measuresadopted are based on appropriate scientific findings;
(c) that such measures do no1 discriminate in formor in Factagainst foreign
fishermen.
114. Il is true that Iceland is nota party to this Convention. But the princi-
ple of non-discrimination is a principle of general application and a basic prin-
ciple of the international legal order. It is particularly applicable in those
cases where the international community authorizes a single State to take
measures which may affect adversely the rights of other States. If the coastal
State, under special circumstances, may validly assume regulatory power MEMORIAL ON THE MERITS 249
within a limited zone of the high seasbefore ils coast for the purpose of con-
servation, this provides per seno justification to discriminate in law or in fact
against any nation's fisherrnen who have lawfully fished previously in this
conservation zone. Here again care mus1betaken no110confuse theconserva-
~ ~ ~asoect with the claim of the coastal State for oreferentialtreatment in the
utilizat'ion of the fishery resources bifore its coasi; the need for conservation
measures even if scientifically proven, could no1 Derse authorize Iceland to
exclude fishinrr vessels ofothernations from the waters of the hieh seasbefore
ils coast. In the present case, lceland has no1shown the faintest regard for the
interests of other States, letalone the principle of non-discrimination. More-
over. the real ouroose behind the measurestaken bv lceland is not to reduce
the overall fishini effort in ihe interest of the preservation of the fish stocks,
but rather, camouflaged behind the pleafor conservation, theclaim oflceland
to a..ro~.iate for itself the shares ofother nations in thesefisheries.
I 15.Ii içihcrcforc suhniitted ihsr the necd for conservation mca%urcscan
ncvïr hc a valid grclund for adi,piiiig snd enforcing nie;tsiircs tihich di5crinii-
nate in law or in fact aaainst the fishine.vesselsof other States in theconserva-
tion area, either by exclusion or otherwise. If limitations of catch or fishing
effort reqiiire an allocation of quotas among the States which have fished in
the conservation area, coastal States usuallv claim snecial treatment. It is onlv
in this context that the question of a preferéntial right of thecoastal State wijl
arise. Thus, il will be necessary to examine in the following paragraphs
whether and to what extent present international law recognizes a right of the
coastal State to be accorded preferential treatment in the allocation of fühery
resources.
116. The claim of some coastal States to be accorded "preferential" treat-
ment if an allocation of quotas within a catch-limitation scheme becomes
necessary, must be viewed within the wider context of the concept of "pre-
ferential rights" propagated by those States which have a coastal population
soecially deoendent on local coastal fisheries. Itshould be emnhasized before
examining the State practice and the claims asserted by tat teis this respect,
that the insistence on preferential rights for the coastal State in the fisheries
before ils coast is not a necessarvatiribute of a State's maritime interests. It
dependsvery muchon the develoiment of ils fisheries industry whether a State
has developed a distant-water fishing fleet which is no1 dependent on fishing
in the coastal zone. or whether ils fisheries has beenconfined to coastal fishing.
The Faroe lslands are an example of a country which has al the same time
local and distant-water fishing interests, and the fishing vessels of Iceland,
too, are fishing before foreign coasts.
(a) Tite Prorecrion of local Coastal Fisiring
117. The coiiccpt ttixt ihc co~jial Staic nia? slaim prcfcrential ire.iirncnt
rests<in 3 sert:iin ei,al.iiion ~if'conflicting nrcrest.; berueeii those df ihe ;oxstill
State whose coastal population relies to a varying extent on coastal fishery and
those of other States whose nationals have put skill and capital into the
development of highly efficient high seasfisheries. The reservation of fishing
within the three-mile limit of the territorial seas to the local small-range
fisheries is a typical example of the recognition of such special interests. To
protect these interests elïectively exclusive fishing rights were claimed andreco~nized for thelocal coastal fisheries. The range of -.otection was widened
by the recognition of 12-mile exclusive fishery zones which took account of
the technical and economic development of the coastal fisheries. There have
been isolated caseswhere even bevond that limit considerations of the soecial
dependense of the local coasi31 fi;heries on thc prcrcrvaiion tif the fiih'iioik
on pariicular fishina rrounds led lu cldirn.; for proieciion oi Iuc~l lishcrics
wh&h were either speEia~~y dependent on a particular fishing ground or had
developed this particular fishery by special effort (e.g., the casesof the salmon,
fur seal and pearl fisheries).
118. Althouah this oractice is a caseof "oreferential treatment" it does not
sdpport the Icelxndi; claini fur .in e~Ll~\ivc lishcrici 7one of 50 niilea around
the coa\t. It niay pruvide simc support for ihc closing of \orne arclis IO
trduling in the interest oi 1ccl;~ndicsmall-r~ngefiihcr~cs iriili neir .ind lines,IO
which the Federal Rcpublic uf<ierrnany has .ilrcddy Jeclared ils rc~dincss Io
agrcc uith the Governmcnt of lccland un the protection oi such ;ireJs. 1he
lcclandis slsirn for a 50-niile excl~si\,e firhcrics ?one, howevcr. hs, nuiliinc io
do with the protection of the local coastal small-boat fisheri; this clai; is
rather asserted in the interest of an expansion of the Icelandic high seas
fishery,
(b! The Conceptof "Preferential Rights" of the Conference
.. on theLow o/lhe Seo 1958
119. The conflict betreen the intcrcsti of lselînd on the one h~nd and ihc
FeJcrdl Rcpuhlic of Gcrrnhny and the Uiiiicd Kingdoni un thc oihcr hdnd ir
in fdcr no1 a conflict bctuccii the inierciis 01 local io;isi;ilfishcriz\ .ilid high
seüs fisherics. biit rxther bctivccn ihe inir.re,ii uf tnu conipcting h~ghsus
firhcrics. Ir iino1ilie lcelliniltc rni;ill-boat ii,herrncn, bui thc highl) dc\clopcd
Iccllindic ira\iIing fishery fi~r nhich the Governineni clsims prii>rits b,.. r.JLlic
of the heaq Jependencc of the 1cellind.c ccunoniy or1 the exiiing, of ihai
industry.
120. The 1958 Geneva Conference ado~ted a resolution on~ ~ ~~al~Sit~a-
tions relating to Coastal Fisheries (sec above para, 26 of thiiyart of the
Memorial) with situations such as that of lceland soecifically in mind. It may
be useful to recall certain clausesof that resolution:
"The United Nations Conference on the Law of the Sea,
Having considered the situation of countries or territories whose
people are overwhelmingly dependent upon coastal fisheries for their
livelihood or economic development ...
Recommends :
1. That where, for the purpose of conservation, it becomes necessary
to limit the total catch of a stock or stocks of fish in an area of the
high rrs adj3scni i<ithe icrritorial icîr oi:i stia,ixl Stdtç',sny tither
States tiïhing in that ared sh<>ulJci>ll~borïic \\iiIithc ~~,ist;il Statc
io seLure iii,itreairnent of such ..iilu~li<~n,hy ritabllshinc agrccd
measures&hich shall recoenize anv orefe,e.tial reauirements of the
civdrt~l Stdir. reiulting froiii il5 dcpenden;~ i.pun thc firhcry Lon-
cerncd uhile hxving rcg~rd IO the iiirere.i$ i)f the uihcr Siaies;. . ."
This was the resolution adooted overwhelminalv. with Iceland concurring, h.
67 votes to none, with 10abstentions on 26 ~pr'i i958.
121. In 1960Iceland made the following proposal to the Conference: MEMORtALONTHEMERtTS 251
"Where a people is overwhelmingly dependent upon its coastal
fisheries for its livelihood or economic development and it becomes
necessary to limit the total catch of a stock or stocks of fish in areas
adjacent to the coastal fisheries zone, the coastal State shall have prefer-
ential rights under such limitations to the extent rendered necessaryby ils
dependence on the fishery.
In the caseof disagreement any interested State may initiate the proce-
dure provided for in the Convention on Fishing and Conservation of the
Living Resources of the High Seas, adopted by the United Nations
Conference on the Law of the Sea of 1958."
This proposal, having originally been accepted in Cornmittee was rejected by
the Plenary Meeting, receiving 24 votes in favour, 48 against, with 15 absten-
tions (seeabove paras. 26,37-38,4L, of this Part of the Mernorial).
122. Clearly, there are differences of substance between the resolution
adopted in 1958 and the lcelandic proposal rejected in 1960. The lcclandic
.rooo.al had in mind a new article irnoosing bind-ne. lezal-.omm-tments
\ihcrea, the rc\tiluiion dtJ no1inipsrt lcg~l sommitnicnts .rri<r~.soir«.IIniay
be ÿs.inied ih.it ihc m.ijsr.iy oi States felt ihlit the csn:cpi ol' prcfercntilil
riehts. whilst deservinz of recoenition. could not usefullv be ex~ressed in
terms'of legnl obligation. lndeed, requiements of "collaboration"'and "just
treatment" are ofa character not easily susceptible Io precise legal regulation
in eeneral terins and divorced from théfacts of oarticdar situations. ln addi-
tion, the lcelandic proposdl conceded an initiative to the coastal State
whereas the resolution places the em~hasis upon agreement and collaboration
between al1 the States concerned. ~evertheless. certain oro. ~.tions mav be
extracted from thesede~elo~ments. First, the concept of "preferential riihts"
was accorded formal recognition and wns designed specifically to deal with
situations such as the lcel&dic situation: second. the conceDt was broadlv
accepted by Iccland; third, the concept dépendediipon proof of a need foi
conservation; fourth. it called for collaboration between al1 the States con-
cerned and envisaged objective conciliation or arbitration of any differences;
fifth, and most eniphatically, the concept of preferential rights had nothing ta
do with exclusive rights.
123. It secms apparent from the Althing Rcsolution of 15 Fehruary 1972
(seeAnnex C ta the Application instituting proceedings in this case)from the
Aide-Mémoires of the Government of lceland of 31 August 1971, and 24
February 1972(see Annexes D and H 10 the A~~iication instituting proceed-
ings in Ïhis case), and from the various statem&ts and docun>ent<issued by
the Governnient of lceland that the present lcelandic claim to exclusive fish-
eries over a 50-niile zone is not based uDon this conceDt of oreferential rights.
Although the premisses of lcelandic iconomic independence and the need
for conservation are frequently reiterated, and although these are the identical
premisses upon which the concept of preferenlial rights ivas established,
~o~hine-is now~said of this concc~ ~.~
124. It is not the concern of the Federal Republic of Cermany to speculate
about the reasons that niay have induced the Governnient of lceland not to
rely specifically upon the brinciples contained in this resolution. Be it as it
may, the resolution does, in any case, not provide authority for Iceland's
claim for exclusive fishery rights within a 50-niile zone around Iceland. The
resolution makes it an exDresscondition that the "aereed -easures" should
no! only pliy reg;ird to the prefcrcntidl rsquirenicnti of the coastlil State. I.c..
the dcgrcç of depcndence of ils people upon "cdastal" firherics. but should aithe same timehave "regard to the interests of the other States", i.e., the inter-
~~ts of those States which have habituallv fished in these waters. Whatever
may he the legal force of such resolutions, they may at least he regarded as
expressing a consensus of States on what should be considered just and equit-
able in sich cases. If a conclusion mav be drawn from the contents of the
risolution viewed in this manner, it provides at least evidence of the general
legal opinion of States that the interests of bath thecoastal State and theother
~catesbhich have oarticioated in the fisheries to he halanced aeainst each
othcr inil that ncirher of theniihoiilrlil~~ini rib.;olute priority uver ;se urhcr.
125. If ihc priniiplr. oi the 1Y5? reiuliilic)n aould be iipplisJ Io ihc pre5ent
case, it might certainly he argued that there is room for negotiations between
the Parties about the future respective shares of each of the Parties in the
fisheries around Iceland. It is suhmitted, however, that Lceland hy taking
more than 50 Der cent. of the demersal and ~racticallv al1 pelaeic.fis. from
the ICFS lccl~nrl Ared. ha, :,lresJ) sc:itrerli "prefer>ntiil" position nithin
thc nieÿning uC the 1958 rr,oliition, ;liid thxi ionseqiiently Iceilin<lcoiilrl nat
claim more than to have its oreferential ~osition settled hy negotiation and
agreement.
126. In view of the considerations set forth in paragraphs 56 to 125 it is
suhmitted that there is no foundation in international law for the claim of
Iceland to extend its exclusive fisheries zone to 50 miles from the coast, and
that, consequently, the purported extension of Iceland's exclusive fisheries
zone, effected by Icelandic Regulations No. 185/1572 of 14July 1972, cannot
be opposed to the Federal Repuhlic of Germany and to its fishing vessels.
D. The Recognition of Foreign I'ishinl: Rights in
Exlcnded Zones tif laritirne .lurisdiction
127. In those cases where by the development of maritime law or by
special agreement the coastal State has been accorded the right to extend its
iurisdiction over waters of the hieh seas adiacent to its coast. either for con-
iervation purposes or for exclus?ve exploiiation by its nationals, inevitahly
the question has arisen whether and to what extent the fishing rights of the
nationals of other than the coastal State which have previously fished in this
zone, in the lawful exercise of their fishing rights in the waters of the high
seas, must be allowed to continue with such fishing. This problem has been
mostlv referred to as a case of recoenit-on of "historic" riehts:-such stvlinx.. .
ho\icver, hlir rnther ~.onfuied the issiie. bccüiise the recogutitin of contiiiuerl
foreign fishing in cxtended ,ones of ~iirisdiition irno1 so nirich fdundcd on a
soecial leeal position acauired bv vrevious uninterrupted use in deviation
from an existing rule of law, but rather on the recognition of the special in-
terests of other States in the zone which is now brought under the coastal
State's iurisdiction. Such interests mav merit the same consideration as those
of the c.oastnl Stliteu hich have leJ toih? estïblishnient of n ncir legdl réginie
with respect tu such 7one.; of rpccial rn~ritinie jurisdiciion. MEMORlAL ON THE MERITS 253
128. Before examining the ililpressive State practice in this respect, the
following observations may be pertinent to the issue:
First: It must be distinguished whether theextension ofjurisdiction has been
sought for conservation or for utilization DurDoses.While in the first case the
continuance of foreign fishing cannot be iuestioned, subject only to the
requirements of the conservation régime, in the second case conflicting
utilization interests must be settled. Only in those cases where the conserva-
tion régimerequires a limitation or even a reduction ofthe catch or the fishing
effort, conflicting utilization interests willalso have be settled.
Second: In the settlement of conflictina utilization interestsmuch depends
on ihe e\1iI~3iion oftlie Jitiçrcnt intercil; in\,uli,e\i. If the coa.;idl Stuc cllims
a widcr 7,ine of es:liisiie ur prelerenti~l expl<>iiarionf,ir rlic spçcial hçricfirof
the local coastal ~o~ulation sveciallv de~endent on coastal fisheries, such
interests may he accorded a higher priority and may justify even the exclusion
of foreign fishing from this zone after a reasonahle phasing-out period; if,
however. the coastal State claims a wider zone of exclusive or ~referential
exploitation for the general benefit of its economy, such interests cannot claim
a priority over the economic interests of other States in the fisheries within
this zone.
Third: As far as the fishing interests of the non-coastal States in a zone of
extended maritime jurisdiction are concerned, the dependence of these States
on the use of the fishing grounds in such a zone is a decisive factor in the eva-
luaiion of the conflicting interests. Thus the claim for a 50-mile zone is a
quite different case compared with the previous claims for a 12-mile zone,
which left the greater part of the fishing grounds before the Coast open to the
continued use of other nations.
The preceding considerations explain the variations in the State practice
with respect to the continuance of foreign fishing in extended zones of
maritime iurisdiction:...ev exolain in oarticular. whv in some cases vhasing-
oiit pcriod\ hase heen ci~n%idered,uilicicnt an4 in other c:i\cs prilvision l'or
iinlimiivd ~unrinii;iiiceof ioreiyn liihing bas hcxrii.kiçIlisno1pi~iriblr hcre
ta review the State practice in detail; the following list is more illustrative
than exhaustive.
2. THERECOGNITION OF "TRADITIONALF "OREIGN FISHINGRIGHTS
WlTHlN THE 12-MILEFISHERIEZ SONE
129. Most State practice was a result of the establishment of 12-mile
fisheries zonessince the Geneva Conference of 1960.The pertinent legislation
of those States and the agreements concluded after the enactment of such
leaislation with other States which had habitually fished within this zone,
partly provided for phasing-out-periods, parti; for the continuance of
foreign fishing in this zone.
130. Among the first agreements of this kind were the Exchanges of Notes
of II March and 19Julv 1961 between lc~lond~nd the UnitedKin~dom and
the Federal ~epuhlic ofCerhany respectively which provided for continued
fishing bv vessels of the United Kinadom and the Federal Re~uhlic of Ger-
man"-inthe outer six-mile belt for-a ohasing-out oeriod of ao~roximatelv
threéyears (the text of these Notes is réproduced in'~nnexes ~'ind C of thé
Application instituting proceedings in this case). An earlier arrangement of a
similar kind but providing for a tewyear phasing-out period had been con-
cluded by the UniredKNIgdomwith Norwoy on 17November 1960. 131. Another settlement of foreign fishing in the 12-mile zone which is of
considerable importance because of the number of States inyolved is the
EurooeonFisheriesConvenrion012 Morch 1964 (581 UNTS. 57). The Conven-
tionaccorded the permanent r&ht to fish with'in the 6 and i2-mile limit to .
those contracting States the vesselsof which had habitually fished in that belt
during the previous ten years. Article 3 of the Convention was worded as
follows:
"Within the belt between six and twelve miles measured from the
baselines of the territorial sea, the right to fish shall be exercised only by
the coastal State and by such other Contracling Parties, the fishing
vesselsof which have habitually fished in that belt between 1st January,
1953 and 31st December, 1962.
Fishing vessels of the Contracting Parties, other than the coastal
State. oermitted to fish under Article 3. shall not direct their fishins
eforis'towards stock4 of fish or fishing ;rounds substantially differenï
from those which they have habitually exploited."
The Convention provided further for a phasing-out period, the period of
which was to be determined by agreement between the States concerned, to
the benefit of those fishermen of the Contracting States who had "habitually"
fished within the six-mile limit (Art. 9, para. 1); the Convention further
allowed the continuance of "voisinage arrangements" between the Parties
with respect to fishing within the six-mile limit (Art. 9, para. 2). Two multi-
lateral phasing-out agreements relating to the United Kingdom and Ireland
were already annexed to the Convention.
132. In 1967, Spain extended its fisheries jurisdiction to 12 miles by Law
No. 2011967of 8 April 1967. The law generally followed the pattern of the
Eurooe7~ ~ishe.~~.~~.~vention~ ~ within the three~ ~~ ~belt fishine i- com-
pletely reserved to Spanish nationals; within the three to six-mile belt fishing
will be permitted temporarily to foreign nations who habitually have fished
in this belt during thi preceding ten Gars in accordance with special agree-
ments to be concluded for this purpose; within the 6 to 12-mile belt fishing is
' permanently permitted to foreign nationals who habitually have fished there,
provided reciprocity is granted and provided further that foreign fishermen do
not exceedtheir habitua1 catch nor fish in areas where they had not previously
fished.
133. Ln 1966 the Unite</Sforesestablished a fisheries zone of 12 miles by
Law 89-658 of 14 October 1966 (80 U.S. Statute 908; 61 AJIL (1967). 658).
The Law established a so-called "contiguous zone" of nine miles beyond the
three-niile belt of the territorial sea, where the United States "will exercise
the same exclusive rights in respect to fisheries as it has in the territorial sea.
subject to the continuation of traditional fishing by foreign States within this
zone as mav be recorinized bv the United States". This law left it to the
discretion of the ~ov~rnnientof the United States where and to what extent
it would recognize traditional fishing rights of other States. In fact, however.
the United States concluded aereements with Jaoan. Mexico and the Soviet
Union which provided for the-continuation of fishi& by nationals of these
States in defined areas within the 3 to 12-mile belt; these agreements were
initiallv concluded for two or five vears. but have been since orolonged or
repllicéd hy siniilar agreements takikg lnto account new dcielopiiicnts~in the
lishcries concerned. Refçrence may be made here to the agrecmcnt.concludcd
uith Jooo»on 9 .May 1967iteht. seeI,,fcrn<ifionol Lrrul Alorrriols.Vol. VI. p.
749, with Mexico on 27 0Gober 1967(text, seelnre~norional~egal~oteriois. MEMOR~AL ON THE MER~TS 255
Vol. VII, p. 312) and with the Soviet Union on 21 February 1973 (valid for
IWO vears:.reo.acine. earlier agreements of 1967. 1969 and 1971: text. see
~nrer;iri~ionolLegril ~lutrriulrcol. XI. p. 553).
134. Al,strol,o csiriblished a 12-iiitle err.lu>ive firheriçr zone by the Fisheries
Act No. 116 of 17 Noveinber 1967. Follouinc the entrv into force of this
Law, Australia and Japott concltided an agreement oi 27 November 1968
whereby Japanese tuna fishing nlay continue in specified areas witbin the
12-mile belt, in some areas for three and in others for seven years at a level
not to be increased beyond the average annual catch during the preceding five
years.
135. The different features ofthese aereements renect the different interests
involved in each cdse Ii cinnoi bc conclu~ed from ihis practicç that phs\ing-
oui periodb havc gencrrilly been reg~rdtd as\uliicient to proiect the intercst of
other nations who havefished in the extended zone. exceot in those cases
where only a part of the traditional fishing grounds were Closed 10 Foreign
fishing and an adaptation of the fishing activities of Foreign nations to the
new fishine limit had been oossiblc without much difficultv and economic loss.
-
This, however, is the more so if an extension of exclusive fishery zones up to
50 and 200 miles would be contemplated, whereby practically al1 fishing
erounds would beclosed to other Statesexceot the coastal State. Lnsuch a case
phasing-out arrnngenients arc in>uficicnt to proicci the Icgitinixic righis of
theje Sraies in the cxploit;ition of the coiiimon lishery rrsoiirccs tif thc <iccxns.
136. It may be useful for the purpose of defining the conflicting interests
clearly to give a brief account of the proposals made in the Uniied Nations
Seabed Committee when it considered the topics of the forthcoming Con-
ference on the Law of the Sea.as far as thev relate Io the problem of the con-
tinuation of "traditional" fishing in extendëd zones of maiitime jurisdiction.
137. A satisfactory solution of this problem will probably be of crucial
importance for the success of the Conference. In view of claims by many
States for wider zones of exclusive exploitation, under the cover of such
concepts as "patrimonial sea" or "economic zone", the protection of the
rights of other States which have hitherto legitimately fished in these waters is
a necessary element of any new world-wide regulation of the exploitation of
the fishery resources of the oceans. The following proposals have been made
in this respect.
138. The draft Articles on Fishine orooosed bv the Sovier Union on 18Julv
1972(U4: Joc. ,\/AC 138~~~.1l/~.h)~dh'eresiriCily IO a 12-mile fishery liiii;t
for al1States. in opposition to concept5 which \roiild generally entiile a State
to claim wider zones of exclusive exoloitation. Thev bould. however. allow
deieloping ~txics to reserve for ihc'mrclver. in thc areas of the high seas
adjacent to the 12-mile zone. such pari of the allou.ahle catch oifish asun be
taken bv the vesselsnavieatinr under that State's flaa. Under such a réaime
which iscalculated to as& d&eloping States in the course of their develop-
ment, the problem of the protection of traditional fishing rights will practi-
cally not arise until fishini by the developing State has reached the capacity
of the fishing industries of developed States in which case the provision
will cease to apply to that Stato.256 FISHERIES JURISOICTION
139. The Proposals for a Régimeof Fisheries on theHigh Sea4submitted by
Japati on 14 August 1972 (UN doc. A/AC.138/SC.ll/L.12) would accord the
coastal State "oreferentialrinhts" ta a certain extent. therebv.distinc-ishinz-
betwcen develiped and deveroping States:
(a) A developing State would be entitled to reserve for ils flag that portion
of the allowable catch it can harvest by its fishing capacity until it has devel-
oped its capacity to the extent of being able Io fish for a major portion
(approximately 50 percent.) of the allowablecatch of the stock of fish;
(b) A dereloped State would be entitled to reserve for its flag that portion
of the allowable catch of a stock of fish "which is necessary to maintain its
locally conducted small-scale coastal fisheries". In determining that portion
the interests of traditionallyestablished fisheries of other States shall be duly
taken into account.
140. The Unired States revised draft Fisheries Article submitted on 4
August 1972 (UN doc. A/AC.138/SC.II/L.9) goes farther than the afore-
mentioned proposals in according "preferential rights" to each coastal State.
It would allow the coastal State to reserve to its Raz that oortion of "coastal
-
and 3nadroiiiou.s rcsoiirccs" it can har\e,t. It niust. however. hc addcd for
e~planation. th;it ihc >ti-callcd "co;ist.~l rcsources" includc only such specics
of fiih iihich arc not "hie-.v nii-r~rory. (.istcJ in an Anncx 10 the Pro~osïli.
for the latter category of speciesinternational management of the resources is
advocated. With respect to the "coastal and anadromous resources" the
coastal State should provide access by other States to that portion of the
resources not fully utilized by its vesselswith priority for those States which
have traditionally fished for such resources.
141. The Draft Articles on the Concept of an Exclusive Economic Zone
submitted by Kenyaon 7 August 1972(UN doc. A/AC.I38/SC.II/L.10) would
entitle each coastal State to establish an Economic Zone beyond the 12-mile
territorial seaUD to a lirnit of 200 nautical mileswherethatState would have
exclusive jurisd<ction for the purposes of control, regulation and exploitation
of bothliving and non-living resources. No recognition of traditional fishing
rights is mentioned; it is proposed, however, that the coastal State could
allow other States to exnlnit the resources of the Zone and should do so in the
fishine. riehts of other naii0n.s in t~e ~ ~ ~inic ~bne~.but is rather calculated
to enible the coastal State to exercise control over such activities and to
derive some revenue from the issuance of licences.
142. The draft Articles suhmitted by Colombia, Mexico and Venczncla on
2 April 1973 (UN doc. A/AC.138/SC.ll/L.ZI; 12 Irirer~!arioirol Legal Ma-
rerials (1973), 570) contain the concept of the "Patrimonial Sea" (up to 200
miles) to which reference has been made already earlier in this Memorial
(see para. 67 of this part of the Memorial). No provision is made for the
continuation of fishing rights hitherto exercised in that zone, but the concept
of the "Patrimonial Sea" apparently does not exclude the continuation of the
practice of some Latin American States to allow foreign fishing under licence
within this zone.
143. All these prooosals are. of course. not law but oro~osals de leae
ferenda. They cannot be considered as balanced propositions for the formuÏa-
tion of new rules of lai", but rather as bargaining positions for the forth-
coming Conference on the Law of the Sea. Whatever they may be worth in
this respect, they reflect at least the dilïerent basic interests which have to be MEMORIAL ON THE MERITS 257
reconciled before a new rule of Iaw with respect to the exploitation of the
living resourcesof the oceans may be formed that will find general acceptance
by the internationalcommunity. ~here is no doubt that théfishing rights that
have hitherto beenlegitimately exercisedin the waters of the high seas,belong
to those basic interests of the States concerned which have to be safeguarded
in any concept of a new Lawof the Sea.
144. It is therefore suhmitted tliat any unilateral extension of the limits of
an exclusive fisheries zone beyond the 12-mile limit u,ithout paying regard to
the established fishina interests of other nations in the extended zone. is
c..trarv .o internat~~nal law and tha~.~conseaue,tlv.~ ~ ~unilat..al extension
by Iceland of its zone of exclusive fisheries jurisdiction, in so Paras itaficts
the fishine rights of the Federal Republic of Germany in this zone. is unlawîul
also on this ground.
E. Settlement of the Conflicting Interests in the Present Case
145: The Government of lceland hascontended that therc were no rules of
international law on which the Court could found its decision in the iiresent
disoute het&n the Parties. The Government of the Federal ~en;blic of
~. ~ ~ ~ ~ ~ ~ -~ ~ ~ ~ ~ ~ 7
Germany hopes to have shownin the preceding paragraphs of this Part of the
Memorial that there are rules of international law which govern the subiect-
matter of th~ ~ ~ ~...and ,~at~these~ ~es ar~ ~~ot asuncert;in and indefiniieas
the Government of lceland would like to make believe. ~issatisfaction with
the present state of the law is no justification for non-observance of the law;
the only lawful and appropriate way to change such law or to claim excep-
tions from the rules ofsuch.law, is not unilateral action but negotiation and
agreement between the Parties.
146. It is true that there are quite a number of States which claim wider
jurisdictional limits before their coasts for various reasons, biit there is, at
present, no onsensrrs among the international community of States that a
State mieht be entitled. as hv rieht. to claim an exclusive fisherv exaloitation
Lone bcr,>nil the 12-niile liniii.%iich cllinis ihaiiild no1 he con.foi."ded trith
clximi~>~coiistxl Siiitei (or (rider jurisdi~tiutial contrdl ovcr haii111i.Is~tivitiez
on the waters of the hieh seasbefore their coasts (ex.. conservation or oollu-
tion control zones) whrch have mît with lessopposi~ion. Although claiAs for
wider zones of exclusive exploitation beyond the 12-mile limit cannot com-
mand the supiiort of oresent international law, they should not be regarded as
king arbiir;& clai&s uiihnui any r;iiionaI red\o" bchind. Siich clsinir have
beenand \till are ï result olthc apprchenii,)ns of some Siaics. ocn il iinjuaii-
fied on thoroueh and imoartial investigation into the true factsof the actiial
situaiiori, to hc depriicd'of or e\cludei ïroni rhc bencfiis ;accruin&!rroni the
cxploitsii,,n of ihe ti\hcry reioiirces of ihs ocexna. These apprehcn>ions
should be raken serioiisly. iihcn ricu riiles for lhc expluitaiion of ihe iishery
rciourccs of the occdns \vil1 be iormcd. and the forthioming Conlerence on
the Lau of ihc Sel provides an upport~n:iy to take iheic apprchcnsioni iiito
consideration. However, an equitable management of the fishery resources of
the oceansmust take into consideration the interests of rrllStates and of man-kind in genera1,notjust only the national interests of the coastal State which
tries to .rab the fruits before its door.
147. .an cnècii\c m:inageriicnt of ille ii\hcry re\\iiirc:s of the uccins necds
the co.operatii)n of riII Silites cain<crncd. 'l'hc unil;iicrsi cl~inls hy sonle
ci)~stlil St.iics. includiiiç Iccl.in,i, io c~rxblialide 7oncsof e\cltisive explc~iia-
lion :iremost iinforiun;itc in iliii rcspczi becaiise >uch 7onci \i~iuld le;ive the
manligcineni of inip,iridnr p.iri, of the iishery rcsoiirics uiihiii the ndiioiixl
ditireiiun and rndkc il more and nitire Jifli:uli lu csiabliih an eiTccti\e inicr-
national control over the fish stocks, in particular over those of a migratory
character. The development of the continental shelf doctrine provides an
illustrative lesson in this resoect: there. too. claims for extensive zones of
nationaljurisdiction have mire and moie reduced the range of the resources
of the seibed and subsoil which would be left for international control and
ex~loitation for the benefit oFal1mankind,
148. A rational and equitable régime for the exploitation of the common
fishery resources of the oceans cannot Ire founded on abstract principles
without taking into .account the special circumstances prevailing in :he
dilïerent regions, such as: the location and extension of the fishing grounds,
the exploitation capacity and the migratory range of the particular fish
stocks, the conservation measures already taken in this respect, the technical
modes of fishing, the various interests present in the fisheries of the region,
the object of their fishing effort and the degree of their dependence on the
particular fishing grounds (small coastal fisheries, needs of developing States,
access for landlocked and other States which cannot satisfy their demand
locally, special interests of the high seasfishery industries, utilizafion of un-
exploited resources, etc.). If a legal régime should bring about an equitable
allocation of the fisherv resources of a certain reeion-to the different interests
involved, such a régime could not be founded on the discretionary and uni-
lateral decision of the coastal State. nor could it be founded on a laissez-faire
policy leaving the allocation of resources to the play of free competition. The
special legal régime, to be appropriate for a certain region, mus1 be founded
on agreement befween the States representing the various fishing interests in
this reeion. Thris. the allocation of the fisherv resources in the lCES Iceland
.Arc;i br.iiir.cn ihc I':irii10 ihc pre,cnt Ji\puiesnd ihc oihir Si;ilcs conccrncd
idnnoi he m.& depcndciit <in ihc ~nildicral ii\aiiun by 1;cldnd of geogrliph-
icsl liniit, .)l e~ploitaiioii, \iicli ;is the cii.ibl:.hnient tif 25. 30 or 50-i~iilc
liniiis but onl) hy agiccrncnt bciuccn ilic Itriics tliking inio .tccouni ihe
spcii.11interc,i CI!both I'irics. c.g., ihc \peii~l .lependenie OC I~cldnd on tlic
earnines from the fisheries industrv and the long-established traditional
Gcrmdn ii\hiiig inicre,t% in ihc axtcrs of tlic Iiish w.tr :irciund 1:cl:ind. Such
sn :igrcemciii. ,.,incltideJ ciilier hil~icrslly tir,tihai irould bc iiiore ,ippri>prf-
rile. niiiltil.ilcr;iliindïr ihc uispises (ifihe N~~rih-E,i\i htldntti I;>shcries
Ci~nitiii,\ti~ri.i,)ul~l ïeipli,y the mort prli<i~c;il and etfiiicrii riielhoJs i~f
all<i<aiiori<ifrejoiirccs animg ilic nliiionicon;erncd, i.ish as ihc dcliniiiiiiion
of areas of exclusive, preferential or concurrent exploitation, definition of
areasclosed for trawling orfor fishing generally, catch limitations for particu-
lar species,reduction of the fishingeffort, etc.
149. Turning to the role of the Court in the present case, it is certainly not
the function of the Court to assume the role of a legislator for the better
management of the fishery resources of the oceans. But the Court may be
disposed, and this wolild certainlv be within its iudicial functions in deciding
thedispute between the Parties, io give the ~a~tiessome guidance as to the
principleswhich the Parties should take into account in their negotiations for PARTV
INTERNATIOSAL HESI'ONSIBILITY OF l'HF REPUBLIC
OF ICELAND FOR UA\l,\GE (1AIISED BY
INTERFERENCE WlTH GERMAN VESSELS
A. The Actions by lcelandic Coastal Patrol Boats against
German Fishing Vessels
1. By Order of 17 August 1972 indicating interim measures of protection
the Court required the Parties to.ensure that no action of any kind is taken
which might aggravate or extend the dispute submitted to the Court; in
particular it reqitired the Government of Iceland Io refrain from taking any
measuresto enforce the Reeulations of 14Julv 1972aeainst vesselsrecistered
in the Federnl Republic of Germany and engaged inufishing activitiei in the
waters aroiind Iceland outside the 12-mile zone, and to refrain from applying
administrative. iudicial or other measures aeainst such shios. At the same
time the 0rde;of 17 August 1972 required The Government of the Federal
Republic of Germany 10ensure that vesselsregistered in the Federal Republic
donottakeanannual catch of more than 119.000metric tons of fish from the
"Sea Area of Iceland" asdefined by the internation C ouncil for the Explora-
tion of the Seaas Area Va.
2. The Government of the Federnl Republic of Germany, for itspart. has
faithfully observed its obligations under the Court's Order of 17 August
1972, and has taken no action of any kind which might have been capable
of aearavatine or extendinr! the disoute between the Parties. The Govern-
menlof the Fideral ~e~ubcc refers for this purpose to the letter of its Agent
of 21 May 1973, whereby the Registry of the Court was furnished with al1
relevant information on the measurestaken by the Government of the Federal
Republic concerning the control of fish catches in the lceland Area, and where
it was stated thai according to the provisional statistical figures available to
the Government of the Federal Republic the catch taken by Çerman fishing
vesselsfroni the seaarea of Iceland in 1972had been93,672 metric tons.
3. The fishing vessels of the Federal Republic of Germany have been
carrying on their fishing operaiions in the waters around lceland to which
thev were entitled ~i-~er in~ ~ ~ ~onal law and under~ ~e Court's Order of
17 August 1972 in the normal way without taking any provocativeattitude
which might have been 'camble of anaravatinp the situation. No incident
has occiirred that has been due to aiy action of a vesse1of the Federal
Repiiblic of Germûny. AI1 incidents that occurred since the Court's Order of
17Aiigust 1972have been caused by illegal actions of the coastal patrol boats
of the Republic of Iceland in defiance of the express stipulations contained in
paragraph I(c) and ((1)of the operative passageof the Court's Order.
4. The Government of Iceland, on the other hand, hasopenly and repeated-
ly declared thÿt it would not comply with the Court's Order and was deter-
mined to enforce the Regulations of 14 July 1972 against Foreign vessels
fishing in the 50-mile zone.
5. Interference with the fishing operations of German trawlers started
immediately after the coming into force of the Regulations of 14 July 1972, MEhlORtALONTHEMERITS 261
and has since continued until this Memorial had been compiled. In the begin-
ning there were periods during ujhich the actions of lcelandic coastal patrol
boats were less vigorously conducted than later; recently, however, these
actions have been undertaken with increasing intensity and violence. The
harassment conducted by the Icelandic coastal patrol boats has taken a
number of diiïerent forms.
6. In some cases the Icelandic coastal patrol have merely ordered the
German fishine vesselsto haul in their nets and to leave the area. accomoanied
by the threat th later a prosecution mightfollow for illegalfishing. ~lihough
in most casessuch illegal orders have been disreparded, in some casesGerman
trawlers have understandablv felt reluctant to ex~osethemselves to the threat
of punitive or other action and, therefore, complied under duress with the
orders addressedto them by thecoastal patrol boats. thereby suiTeringmaterial
loss. .
7. In other cases, starting with 14 September 1972, the lcelandic coastal
patrol boats backed their orders to leave the area with the threat that, if the
fishine vesselsdid not immediatelv haul in theirnetsanddeoartfrom thearea.
the c&stal patrol boat would pisiibly cut their drps (that is, their trawl:
wires) by sailing across them with a cutting device. This tactic, if successfully
carried out. resulted in the loss bv thefishine -essel of the eear involved and
pcrhxps :tval~.ible put i)f ilsiaich; ilfiirihcr prod.iceJ .iiit~atiari .,f grcd
d4ngcr ti~the Iifc of thusc on dech oithe lishing vssscls. beiaiirc n:trpa Iisiiled
through the water are under great tension and, ifcut, may whip backon to the
deck of the trawler and cause death or serious injury among the crew. Even
if the attempt to cut the warps is unsuccessful, if cannot be made without the
coastal patrol boat indulging in dangerous manoeuvres which are contrary
to al1 accepted rules of good seamanship and which cannot fail to imperil
the fishing vessel itself and those on board. Even where these attacks have
been unsuccessful, German trawlers have been .forced under this threat of
violence to curtail their fishing in the area. and have thereby suffered material
loss.
8. Strong protests have been made against these attacks, either already by
the commander of the German fishery protection vesselswhich happened to
beon thespot, or Iater by the Ambassadorof t. Federal RcpublicofGermany
in Reykjavik. A Verbal Note handed by the Ambassador of the Government
of the Federal Republic in Reykjavik to the Minister for Foreign Affairs of
Iceland on 1 Decemher 1972referring to a serious incident which had occurred
on 25 November 1972, in the course of which a member of the crew of the
German trawler Erlo~tgeirhad been injured, is reproduced in Annex G to
this Memorial.
9. German trau,lers operating in the Eastern and Western Atlantic are
temporarily assisted by so-called "fishery protection vessels". These vessels
are unarmed public vesselsoperating under order of the Government of the
Federal Republic of Germany: their normal task is to accompany the German
fishing vesselsand to provide them with any help of a medical, meteorological,
mechanical or similar nature which the German fishing vesselsmight require
to ensure their safety. They have not been specifically put into service for
the events in the waters around Iceland. They have been in continuous
service since many years and have accompanied German fishing vesselsto the
various fishing grounds. The demands made on their service by German
fishing vesselsnaturally increased when it becamc apparent that, because of
the threatening attitude of the lcelandic authorities, vessels which were in
distress or otherwise in need of such assistance woiild no longer put intoIcelandicports or move closer to the shore in order to avoid the risk of arrest.
Therefore, the service of the German fisheryprotection vessels isnow mainly
directed to the Iceland Area.
10. In a Verbal Note handed to the Ambassador of the Federal Republic
of Germany in Reykjavik on 10 January 1973, the Government of Iceland
protested against the presence of the fishery protection vessels of the Federal
Republic in the waters around Iceland. In the view of the Goverment of
Iceland their presence constituted assistance in illegal fishing in Icelandic
waters, and it was further asserted that on 8 Januarv 1973 a fishery protection
vessel of the Federal Republic had prevented an lcélandiccoastal6atrol boat
from its "enforcement activities" against German fishing vessels.
The tex1 of the Government of Iceland's Verbal Note of 10 January 1973
is reproduced in Annex H to this Mernorial.
By Verbal Note, handed by the Ambassador of the Federal Republic of
Germany ta the Minister for Foreign Affairs of Iceland on 22 January 1973,
the Government of the Federal Republic replied to these assertions of the
Government of Iceland and oointed out th~t ~ ~ sa-call~d~"enforcement ~ ~
activities" referred ta in the ~e;bal Note of the lcelandic Ministry forForeign
Alïairs constituted an illeaal use of force in times of peace on the hiah seas
against German trawlers in flagrant violation of the 0rder of the court of
17 August 1972, and that the German fishery protection vessel which hap-
pened ta be on the spot, had done nothing else than ta protect the German
trawler aeainst such unlawful action hv the Icelandic~ ~ ~ ~l oat.ol boat. The
Government of the Federal ~epublic,~k this Verbal Note, specifically empha-
sized that the German fishery protection vessels have been instructed, on their
part, not to resort to the uséof force.
The tex1 of the Verbal Note of the Government of the Federal Republic
of Germany of 22January 1973is reproduced in Annex 1to this Memorial.
11. In view of the facts described above and particularly in view of the
express instructions given by the Government of the Federal Republic of
Germany to the German fishery protection vessels not to resort to any use
or threat of force against the lcelandic coastal patrol boats, it is submitted
that the presence and activities of the German fishery protection vessels are in
harmony with the rules of international law and with the Court's Order of '
17 August 1972.
12. More recently, starting with 28 June 1973, the lcelandic coastal patrol .
hoats have resorted to even more violent interference. On four occasions, on
28 June, on 2 July, on 8 July and on 14July 1973, shots were fired at German
trawlers. ByVerbal Note handed by the Ambassador of the Federal Repuhlic
ta the Minister for Foreign Affairs of Iceland on 20July 1973.the Government
of the Federal Republic of Germany entered a strong protest aaainst this
cscnl.ition of \,iole;iie iindert3kr.n b; the Iccl:indic coirkl patrol bots, and
Jrcir the lcel~ndic Governnient's atrcntitin ta the \srious situati~inc<tusc<lby
the use of armed force against unarmed German vessels.
The tex1 of the Verbal Note of 20 July 1973 is reproduced in Annex K to
this Mernorial.
13. A lis1of the incidents that have been caused since 1 September 1972 hy
actions of the Icelandic coastal patrol boats against German fishing vessels in
the waters ofthe high seas around Iceland, has been attached Io this Memorial
as Annex L. The list contains those incidents during the period from 1 Sep- MEMORIAL ON THE MERITS 263
tember 1972to the beginning of July 1973,which have been reported by the
German Trawler Owners' Association to the Government of the Federal
Reoublic of Germany. Three additional incidents have occurred since'that
lisi'has bcen compiled: on 8 July an lcelandic co~stal pairol bo~t tried to $top
n German trïwlçr and fired uiirniiig\hots; on Xlul) 1973an Ice~.lriiii;c~~.Ist.li
patrol boat cut the trawl wires of a German trawler; on 14 July 1973 an
lcelandic coastal patrol boat again fired shots at a German trawler. The
incidents reported illustrate the continuous attempts by Icelandic coastal
oatrol boats to interfere with the fishina o~erations of German vessels and
intentionally to destroy or damage thei; fi;hing equipment, thereby causing
not only considerable material loss but even endangering the safety of the
shio and the crew. In total. there have been 115reoorted incidents: in 97cases
attémpts had been made to cut the trawl-wires or warps of German fishing
vessels; in 16 cases the attempts succeeded and the trawl-wires were cut, and
in 11 cases the fishing gear had been lost thereby. In 38 cases the attacked
trawler had to leave the fishing ground in order to avoid imminent attacks
or further damage. In one case a member of the crew was injured having
been struck by the broken end of a wire which whipped back on to the deck
o. .he trawler.
14. TheGovernment of lceland hasin general madeno attempt to deny that
the lcelandiccoastal oatrol boats have committed the acts in question. thouah
t~~~~.ave occ~ ~~~~llv contested the details of a oarticular iicident. Nor 6s
the Government of lieland atempted to disclai; the responsibility for these
acts. On the contrary, they have ex~ressly and repeatedly affirmed that their
ve~ ~l~ have been actine in accordance with orders eiven at the hiehest level
of the ~overnment of Ïceland and in pursuance ofïhe considerecÏpolicy of
that Government. They have asserted their intention to continue this deli-
herate use of force against unarmed fishing vessels of another State on the
high seas in the enforcement of the purported extension of their exclusive
fisheries jurisdiction.
B. TheLegal Consequencesof the Actionsundertaken by the lcelandicCoastal
Pairol Boatsagainst German Fishing Vessels
15. The acts of harassment that have been described in the preceding
paragraphs of this Part of the Memorial and that have been carried out by
the coastal patrol boats of the Republic of Iceland on the direct authority of
the Government of lceland and in ouroorted enforcement of the Icelandic
Regulations of 14 July 1972. are acts for which no authority or justification
can be found in international law. Moreover, these acts are ilfegal on various
grounds:
firsrtheseacts purport to prevent thefishing vesselsof the Federal Republic
of Germany from exercising their right to fish in the waters of the high seas;
second. these acts deliberatelv and illeaallv inflict material loss and dam-ae
on the nationals of another ta-tweithouï aiy justification in law;
fhird, these acts are in conflict with the principle embodied in the United
Nations Charter that disputes between States shall be settled peacefully and
without use of force.
16. Foremost, however, the acts undertaken by the Icelandic coastal
patrol hoats on the direct authority of the Government of Iceland inten-tionally disregard the Court's Order of 17 August 1972 according to which
the Republic of Iceland should refrain from taking any measures against
German fishina vessels ennaaed in fishine activities in the waters arnii~- ~ ~
1celandoutsideÏhe 12-milefiery limit during thependencyoftheproceedings
before the Court. Since the Court has, by its Judgment of 2 February 1973
decidédwith bindinf! force between the Parties th2 il has iurisdiction;n ~ ~~ ~...-
case, and since under Article 94 of the United Nations charter each Membcr
of thc United Nations has 10 comply with the decisions of the International
Court of Justice in any caseto which it is a Party, the Government of Iceland
cannot, in law, any longer deny ils legal obligation to pay due regard to the
Order of the Court of 17 August 1972.
17. The Republic of Iceland cannot escaperesponsibility for the acts of the
lcelandic coastal patrol boats taken on the authority of the lcelandic Govern-
ment by asserting that these acts constitute only "enforcement measures" in
the exercise of Iceland's usurped jurisdictional rights over the waters of the
high seas before its Coast. Under international law, acts undertaken by the
authorities of a State in the enforcement of ils internal law have to be consi-
dered as mere facts and cannot. vis-à-vis oth~~ States. der~.e anv leea. va-iditv ~~ ~~-
from the provisions of the ~taie's internal law. As long as Iceland's claim to
extend its sovereignty over a 50-mile fishery zone is dis~uted, the Federal
Re~ublic of Germanv and ils nationals are under no lesal oblination to
recognize acts of the-lcelandic authorities in this zone asacts done in the
exercise of Iceland's sovereign competence. Thus, acts of the Icelandiccoastal
patrol boats remain, vis-à-vis the Federal Republic, an illegal and excessive
arrogation of sovereign powers.
18. Consequently, the acts of the Icelandiccoastal patrol boats undertaken
on order of the Government of Icelandconstitutean international delinauencv
for wliich 1ccl:tnJ i> cihligcd 10 makc rcpnr;ition io thç Fcdcrsl ~c~ublii o'f
Gcrm~n!. The Gi~rcrnrnent of thc lzr.derül Republtc of Germ;in) re*cr\,cs ;III
irs righti io claini full csriipensstion from the Go\erniiicrit of I~cl~nd for al1
unlaiifiil >ci.: tli;iihai,e bccn comiiiiitcd or nidy )ci bc coinniiitcd in the
enf~ircciiicnr of tlic Icelsndic Kegulxiions No. 189 1972 of 1.4 J~ly 1972,
aaainst German fishinr vesselsin the waters of the hi~h seasaround Iceland.
~he Federal Republic of ~erman~ does not, at plesen< submit a claim against
the Republic of Iceland for the payment of a certain amount of money as
compensation for the damage already iniiicted upon the fishing vesselsof the
Federal Republic. The Government of the Federal Republic does, however,
request the Court ta adjudge and declare that the Republic of Iceland is, in
principle. responsible for the damage inflicted upon German fishing vesselsby
the illegal acts of the Icelandic coastal patrol boats described in the preceding
paragraphs, and under an obligation to pay full compensation for al1 the
damage which the Federal Republic of Germany and ils nationals have
actually sufïered thereby. MEMORIALONTHE MERITS
PART VI
SUBMISSIONS OF THE GOVERNMENT OF THE
FEDERAL REPUBLIC OF GERMANY
In view of the facts and considerations presented in Parts 1, Il, III,IV
and V of this Mernorial.
May it pleasethe Court ta adjudge and declare:
1. That the unilateral extension by lceland of ifs zone of exclusive fisheries
jurisdiction to 50 nautical miles from the present baselines, put into effect
by the Regulations No. 18911972issued by the lcelandic Minister for
Fisheries on 14July 1972,has, asagainst the Federal Republic of Germany,
no basis in international law and can therefore not be opposed to the
Federal Republic of Germany and the fishing vessels registered in the
Federal Republic of Germany.
2. That the lcelandic Regulations No. 18911972 issued by the lcelandic
Minister for Fisheries on 14 Julv 1972. and anv othcr reaulaiions which
migtit be iwied b) Iceland IJ~.thc p;irpojc i;f iriiplcnicjitIccl~nd'.
~131111,)3 50-iiiilr c\cliisivc fi,hcLonc, \h:ill no! bc enforcc.l igdinrt
the tcdcr~l Kenublic ofC~rni;~n>. \esjcli recisiered in ttie FcJcral Keoub-
lic of Germani, their crews and other persa nosnected with fishing
activities of such vessels.
3. That if Iceland, as a coastal State specially dependent on its fisheries,
establishes a need for conservation measures in respect to fish stocks in
the waters adjacent to ils Coast beyond the limits of lcelandic jurisdiction
aereed to bv the Exchanae of Notes of 19 Julv 1961. such conservation
-~ -
measures, as far as they would affect fishing activities by vesselsregistered
in the Federal Re~ublic of Gcrmany, may not he taken on the basis of a
unilateral extension bv lceland of its fisheries iurisdiction buton the
bdcis <if 3n agrcemcni betuccii thc I33rtic\, concliidcd eiihcr bi1itcr;illy or
u,ithin a inuliil~ter;il frïmk.\uth Jii.: reqarJ to the spe:ial dcpcndcncc
,if Icellinrl on lis fishcrie$ 1%)the tr;idiii<~nnl lishcrfc$ of the FcJernl
Rcpuhli: of C;crniany iithe iiatcrr con~crncd.
4. lhnt ihe :~is oi intericrcn:~ by I~cl~nJi: ~<~.iI atr<>lh.l.11~\rith firhing
vejicl, rezisicrcd in the Fcdcr.il Keniibli: of Gerniii\rith iheir fishinb:
operationi by the threat or use offorce are unlawful undcr international
law, and that Iceland is under an obligation ta makeconipensatioiithere-
fore to the Federal Republic of Gerniany.
1 August 1973
(Signed) Günther JAENICKE,
Professor Dr. jur.
Agen1for the Gover~tmeirl
of the Federal Repnblicof Gerrno~ry. FISHERIESIURlSDlCTlON
ANNEXES TO THE MEMORIAL ON THE MERITS
AnnexA
REGULATIONS
CONCERNING THE FISHER LlMlTS OFF [CELAND,14JULY 1972
[Origit~altex1no1reproduced.For E~tglishrranslalionseeAn10the United
Kihgdooni etnorialon tlreiMerirso/rlre D1pp.384-386.Forarfachedmap,
seebelow] MEMORIALON THEMERITS 267
AnnexB
[See AnizexH Io the Uiiired Kingdom Application, 45-47] Annex C
The Government of the Federal Republic of Germiiny has received the
decision of the International Court of Justice dated 17Au~ust 1972 concernine
the provisional measures to be applied pending the final decision of the
Court in the proceedings instituted by the Federal Republic of Germany on
5 lune 1972. The Federal Republic of Germany will respect this decision,
which was taken in conformitv with the orovisions ~f~ the Statu~e~ ~d the
Rules of ihr Couri. and will fully cÿrry oui the oblig~tions imposed on her by
the Court In pariiculxr. ihc Ciovernnient of ihe Federlil Rc~ublic ofCicrnianv
will ensure that vessels resistered in the Federal ~epublic do not take an
annual catch of more than 119,000 rnetric tons of fish from the sea area of
lceland as defined by the lnternational Council for the Exploration of the
Sea as area Va.
The Federal Governrnent will fiirthermore furnish the GoverArnent of
lceland and the Registry of the Court with al1relevant information, orders
issued and arrangements made concerning the control and regulation of fish
catches in the area.
The Government of the Federal Republic of Gcrmany is ready to discuss
the position with the lcelandic Government at any convenient date. MEMORIAL ON THE MERITS
Annex D
PROPOSAL SF THE'GOVERNME NFTTHE FEDERAL REPUBLIC
OF GEKMANY OF 12 FEBRUARY 1973
On condition that
-it is established beyond doubt that the character of the agreement to be
concluded will be that of an interim arrangement not affecting the basic
question of the rights of the Federal Republic of Germany and its trawlers
in the waters around lceland nor its position before the International Court
of Justice,
-the period of validity stipulated for the agreement will be consistent with
that character of the agreement,
the Federal Republic of Germany would be prepared-
1. As of. ..to renounce of its owii free will al1fishing activities in the follow-
ing areas at the following times:
April/May NW
lune/July N
AugustjSeptember S
October/November E
DecemberjJanuary SW
FebruaryIMarch SE
as indicated in the statistical zone Va of the ICES.
2. In consideration of lcelandic coastfishery to abstain of its own free will
(rom engaging in fishing activities in certain areas and at certain times.
The followingareas could for instance be envisaged for that purpose:
(a) off West Iceland belween 64"N and 65'30'N
east of 25"20'W
from March to August
(b) off North-West lceland between 65"30'N and 66"IO'N
east of 2S020'W
fromJanuary to July.
Whether it would in addition he possible for German traujlers to abstain
from fishing activities inll fiirther areas temporarily and under certain
conditions in certainsmall) areas also for comparatively long periods of
time, could be a subject of negotiations and would depend on the entire
contents and the period of validity of the interim agreement. This would
rnoreoverbe infiuenced by the intensity of Icelandic coastal fishing in the
various areas, on whicfi information would have to be supplied by the
Icelandic Government.
3. The Federal Republic of Germany would furthermore be prepared at
certain times toorego fishing in young-fish and spawning areas provided
that Icelandic trawlers would likewise abstain from fishing in those areas.
The following areas might be considered:
(a) the preferred young-fish growing area off the North and North-East
of Iceland.
(b) the main cod spawning area off South-WestIceland.4 In so Far as thcre nicasures do no1 lead to a restriction of the volumeof
ciiiches regarded as ;ipproprlate and acceptable by both rides. lhe Federal
Kepublic uould in addition be ~reniired IO rcduce ils annual fishinr!etTort.
expressed in fishing days, to a certain extent as against the averagecatcheS
of the years 1962 to 1972 (1967 to 1971).which extent would have to be
the subject of negotiations. MEMORIAL ON THE MERITS
hnex E
DRAFIPR~PO~AL SOR AN ARRANGEMEN RTGARDINO FISHING
BY VESSEL S F THEFEDERAL REPUBLIC IN THE ICELAND AREA
(Transmiriedby the Governmenrof lcelandrhroughtheIcelarrdicEmbassy
in Bonnro the Governmenrof rhe Federal Repiiblicon 14 April 1973)
Basic points
1. Nothing in the arrangement shall be deemed to prejudice in any way the
oosition of the Federaleoublic or lceland in relation to thei. le.al points
of view regarding extension of fisheries limits.
2. Trawlers of the Federal Repuhlic will be permitted to fish in an area
outside a line which on the average is 30 nautical miles from baselines.
3. 'Thenumber of trawlers of the Federal Republic fishing in the Iceland
area to be negotiated. This number to be reduced as compared with
previous years.
4. Fishing by freezer trawlers or factory vessels not permitted in the area.
5. Certain areas (conservation areas) to be closed to both lcelandic and
German trawlers.
6. Lone-line and net areas for fishine hoats announced bv Icelandic authori-
lies;O be respected by trawlers of the Federal Repubiic.
7. The total annual catch by trawlers of the Federal Repuhlic permiited in
the Iceland area 10be neeotiated. Reduction as com~ared with orevious
years. -
lcelandic authorities have the righta implement agreed rules.
8.
9. Icelandic Coastal Patrol shall have the rieht to examine fishinn eear and
equiprneni oi irauleri of the Federîl ~c&blic lirhing in the lcilind arîd
inaccordance aiih ihis Iirr.ingcnien1.
10. This 2rr;ingement Io he in tar2e until I April 1975.- 12sm-limil......50sm-Omit '36 distancein --- lineproposed
nauticalmiles by theFederal
from base-line Republic MEMORIAL ON THE MERITS
Annex G
NOTEVERBAL E F THE EMBASS YFTHE FEOERAL REPUBLIC OF
GERMANY INREYKJAVI KF 1DECEMBE1 R972
The Embassy of the Federal Republic of Germany presents itscompliments
to the Icelandic Ministry of Foreign Affairs and has the honour on behalf
of the Government of the Federal Republic of Germany to communicate to
the Ministry the following:
On 25 November 1972 lcelandic coastal patrol boats used force against
German fishing vessels in the waters of the high seas around Iceland and
therebv caused not onlv material damaee but also severe iniurv to one of
the saijors. Accordin1; the findings so jar made on the basis oi the reports
submitted by the captains of the German fishing vesselsconcerned, the details
of the incidents were as follows:
On the morning of 25 November 1972 the German trawler Erlanpen was
fishing at position%? degrees 52 minutes North, 13degrees 48 minutes West,
near Loenstief, about 40 miles off the Icelandic Coast. Shortly before ten
o'clock the Icelandic patrol boat Aegir appeared on the scene. At approx.
10.20am.. the Ae~ir. without oreviouslv contacti-e theErlan",n bv radio as
had been done inother cases, coming f;om starboard with her stern anchor
laid off, crossed close to the stern of tErlanpen. The anchor thus caught
hold of one of the Erlangen's fishing lines whch was drawn taut and broke
in the guide on deck of the Erlangen. The heavy broken steel rope whirled
through the air and struck the sailor Juergen Haense. who was working on
deck, on the head. The sailor collapsed, bleeding al the mouth, nose and
ears. At about 11.30am. he was taken on board the German fishery research
vesse1 Walrer Herwig and brought ashore al Neskaupstadur in the North
Fjord in,order to be taken to hospital with a suspected fracture of the base of
his skull. '
After this incident, on the very same day, in the same area of the high seas,
the German trawlers Flensbirrg,Tiko I,Sirius, Sogirra Maris and Arctrdrus
were obstructed in their fishingactivities by the lcelandic patrol boAegir
and Thor.One of the fishing lines of tArerurus was cul, so that parts of the
fishing-gear were lost. TheAegir had previously warned the captain of the
Arcrurus by radio to take the sailors offthe deck as Aegirwas about tu cul
the lines of thArcritrus.
It is with dismay and concern that the Federal Government has learnt of
the action taken by lcelandic patrol boats against German fishing vessels.
The use of force by Icelandic patrol boats against German fishing vessels
on the high seas is an offence no1 only against the generally applicable
international prohibition of force but also against the fundamentalrinciple
of the international law of the sea that no State has the right to proceed
forcibly against foreign vessels on the high seas and to prevent them from
en--gina-in .eaceful fishing activities.
The action of the lcelaidic patrÿl boîts moreover ofinds agdinst the
intcrim measures of protection which uere indicatcd by the Inicrnational
Court of Juriice on 17 August 1972 in the prnceedings pending between theFederal Reoublic of Germanv and the Reoublic of lceland and which are
known to the lcelandic Gove;nment.
The Court then ordered explictly that-
"the Federal Republic of Germany and the Republic of lceland should
each of them ensure that no action is taken which might aggravate or
extend the dispute submitted to the Court".
The Court furthermore ordered the Republic of Iceland-
"to refrain fronitakine. anv measure ouroortinn to enforce the reeulations
issued by the GovernmenÏ of lceland on 14 Lly 1972 against or other-
wise interfering with vessels registered in the Federal Republic of Ger-
meny and engaged in fishing activities in the waters of the high seas
around lceland outside the 12 miles limit of jurisdiction.. .". ,
The action taken by the lcelandic patrol hoats on 25 November 1972,
which is contrary to international law, has led to an unnecessary and deplor-
able aaaravation of the situation in the dis~ute over the fisheries zone. The
~ceiandrc measures weigh al1 the more hea;ily asthey not only causedconsi-
derahle material damage but moreover inflicted servere injury on a person.
Nor can the Federal Government overlook the fact that these unlawful
measures were taken by lceland at a time when the Fedcral Government had
renewed its previous invitation to the lcelandic Government to enter into
negotiations on an interim arrangement while thc proceedings before the
International Court of Justice are pending.
The Federal Government hereby protests strongly agdinst the irresponsible
actions of the lcelandic patrol boats, which are contrary to jnternational
law and detrimental 10 relations between the Federal Republic of Germany
and the Republic of Iceland.
The Federal Government holds the Icelandic Government res~onsible for
any damagc that has arijen or 111s)still ,irise as n resuli of the ïciiori taken
and reserses the right IO asrert appropriate ilniins for daniagcs dgïinsi ihc
Repuhlic of Iceland .iftcr the dania.c sustained ha becn finalls îsse,red.
~losing formula. Annex 1
VERIIAL Nort ot THE ~LIBACSY Ob rHI.FEDERAL R~PUBLIC OF GLHVANY
IN RIYKJAVIK OF 22 JA~UAKY 1973
The Embawy of the Federal Kepublic ofGerni3ny prerenis itscomplinicnts
IO the C;overn~iieniof lseland and has the honour, upon instructions froni the
Federal Government, to communicate to the Icelandic Government the
following reply to the Icelandic Government's Note of 10January 1973.
By an lnterim Order of 17 August 1972 the International Court of Justice
ordered Iceland "10 refrain from any rneasure purporting to enforce the
Regulalions issued by the Government of Iceland on 14 July 1972 against
or otherwise interfering with vessels registered in the Federal Republic of
Germany and engaged in fishing activities in the waters of the high seas
around lceland outside the 12-mile limit ...". This lnterim Order is being
violated by the action of Icelandic coastguard vessels which keep harassing
German trawlers and even use forceagainst them. What iscalled "enforcement
activities" in the Note of the Icelandic Ministry for Foreign Affairs is there-
fore a flagrant violation of the Order of the International Court of Justice of
17 August 1972 and furtherrnore consiitutes an illegal use of force in times of
peace on the high seas against Gerrnan trawlers. The German fisheryprotec-
tion vessels are trying to protect the German trawlers, within the framework
of the pertinent instructions issued IO them by the Federal Government,
against such unlawful action bv Icelandic coasteuard vessels.~ ~ ~ ~ .. doine
German fishery protection vessélsdo not on~therr part resort to the use of
force but solely endeavour to prevent the obstruction of the peaceful fishing
activities of Gerrnan trawlers bv lcelandic coasteuard boats.~It is ~h~ ~ ~ - ~ ~
no1the conduct of German fisheiy protection boa& that causes the occurrence
of incidents;on the contrary, the German fishery protection boats endeavour
to prevent the occurrence of incidents and damaie throueh the use of force
bylcelandic coastguard vessels. The incident whkh formi the subject of the
Icelandic protest is a concrete example of this, although the Federal Govern-
ment would not say that it agrees in al1points with the Icelandic description
of the actual course of events. The German fishery protection vessels will
have to continue in their endeavours as long as Icelandic coastguard vessels
do not refrain from illegally using force in times of peace on the high seas
against German trawlers. Any action taken by Icelandic Authorities against
these fishery protection vessels would be illegal under internalional law and
particularly incompatible with the lnterim Order of the International Court
of Justice. MEMORIALONTHE MERITS
Annex K
VERBAL NOTE OF THEEMBASSY OF THE FEDERAL REPUBLIC OF GERMANY
IN REYKIAVIK OF 20 JULY 1973
The Embassy of the Federal Republic of Germany presents ifs compliments
to the Icelandic Ministry of Foreign AiTairs and has the honour, upon
instructions from the Government of the Federal Republic of Germany. ta
communicate ta the Ministry the following:
Since 28 June 1973 a number of incidents have occurred in the waters of
~ ~ ~~"h seas around Iceland which ~ ~ ~ ~used b~-~celandic oatrol r~a~ ~ ~ ~
using armed force against German trawlers.
On 28 lune 1973 the Icelandic oatrol boat Albert fired shots at the German
trawler Thunfisch.On 2 July 1973 the lcelandic patrol boat Aegir fired a
warning shot at the German trawler Ter~roniaafter having tried in vain ta cut
of her fishing nets.
On 8 Julv 1973 the Icelandic oa.~ol~ ~at Aerir asked the German trawler
Hnio llu»i;»n iosiop becsuse she \wnted ta Gnd 3 boat owr. A\ the lllrgo
Ifo,,iu»ndid no1 redci. the Acxir hee;in io lire. Aftcr 5everÿl shois ihe Aepir
radioed the Hugo Hamann on-~~~to send below the members of the crew
who were processing fish on deck, as she was now about to use live am-
munition. The Aegir then fired about 13 to 15 rounds, at least three of
which. accordine to the ca~tain of the HUPO Hamann. were live.
On14 July 1573 the A& again fired'at the Gehan trawler Ter,ronia.
Furthermore, on 7 July 1973the lcelandic patrol boat Thorcut the fishing net
of the German trawler Berlin. thoueh without usine -rmed force. All these
incidents occurred outside Iceland's twelve-mile zone.
The Federal Government strongly protests against the action of lcelandic
oatrol boats. which had evidentlv been ordered. and in anvcaseaoorov. . bv
ihc Iîclxndis Goi,crnment. On n;nierouï occasions previobr to thcselccl.indic
pairal bojtr hiid usedforce against Gernian trair lerr. The incidents of28 Junc
and of 2. 8 and 14 July 1973 ci)n\iituic. houever. a rrave escalaiion of the
action undertaken by-lcelandic patrol boats since ;n these cases armed
force was used against German fishermen. The Federal Government wishes
to draw the Icelandic Government's attention to the serious situation caused
by such action. The use of armed force against unarmed German vesselsis
not only an offence against the elemenfary principle of the law of the sea
which gives no State the right ta prevent foreign vesselsfrom fishing peace-
fully on the high seas; it is also an offence against the prohibition of the use .
and of the threat of force which, as one of the peremptory rules of general
international law, has been embodied in Article 2 (4) of the Charter of the
United Nations. and which must be observed bv al1 nations if thev are to
-~ ~ ~~ ~, ~ ~ ~,
live pedcefully together. The action of lcelandic pairol bodts is furtherniore a
blatant hredch of the Order of the Inisrnaiional Court of Justice of 17August
1972.which is known to the Icelandic Government and reauires the ~e~ublic
of lieland ta "refrain from taking any measure purporiing Io enforCe the
regulations issued by the Government of lceland on 14 July 1972 against or
otherwise interferina with vessels reaistered in the ~ederal ~evublic of
Germany and engaged in fishing activities in the waters of the high seas
around lceland outside the 12-miles limit of jurisdiction". The Federal Government expresses particular surprise and disappointment
becauusethe said incidents oçcurred immediatelv hefore and after the German-
Icelandic negotiations of 29 June 1973 duricg which the Federal Govern-
ment made a new proposition to the Icelandic Government, which gives far-
reaching consideration to the Icelandic views and has heen described as most
useful by Icelandic Ministers themselves. The unlawful action of Icelandic
patrol boats against German trawlers on the orders or with the approval of
the Icelandic Government in spite of those negotiations cannot be conducive
to a peaceful solution to the dispute ove1 the fishery zones which the Federal
Government has long been seeking.
Io view of the unlawful and irresponsible action of Icelandic patrol hoats,
the Federal Government must reserve al1its riehts. It will in oarticular hold
the !celandic Government responsible for alludamage to Gérman trawlers
and their crews resulting from such action. Annex L
LIST OF INCIDENT WSITHIN THE 12-50 SEA MILE ZONE OFF ICELAND
Demand to
leave the Fish-
Fishing 50-mile ing Attempt
Graund zone and Obstruc- loca- to cut Fishing
Position cease. tive . !ion fishing lines
Date Trawler Destination fishine. by the Activity left lines cut Special Remarks
3. 9.12C.K?impf Berutief x Aegir
64.3O'N-12.CQ'W
8.9. Sehlerwig Berutief x Odin
13. 9. Schleswig Berutief X Odin
14. 9. Korjisch Mehlsack x Odin taken on board
64.03'N-23.31'W
14. 9. Kiel Mehlsack x Odin
63.10'N-23.35'W
14. 9. Teuronia W.-Mehlsack x Odin
14. 9. Würzburg S.-Mehlsack x Odin taken on board
6~~.~~~-23.3O'W
1.IO. Hildesheim ~ammelloch~ x Aegir
1.10. Altono Gammelloch x Aegir
66.40'W-24.00'W
1.10. Fehmorn Gammelloch x Aegir
0 Oihmorschen Gammelloch x Aegir
66.40'W+24.WN
1.IO. Sag.-Maris Gammelloch x Aegit taken on'board
66.38'N+ZS.OO'W
1.IO. Schleswig Berutief x Odin
17.10. Hildesheim Gammelloch x Aegir taken on board
17.IO. Freiburg Gammelloch x Aegir taken on board
15.11. Vesr-Recklingh Stockness x Odinlfior taken on board
Stockness x OdinIThor C9
LIST OF INCIDENTS WlTHlN THE 12-50 SEAMILEZONE OFF IcELAND (con!.) O
~- ~ -- ~ ~ ~
Demand IO
leave the Fish-
Fishing 50-mile ing Attempt
Ground zone and Obstruc- loca- Io cul ~ishing
Position cease tive tion fishing lines
Date Trawler Destination fishing by the Activity left lines cul Special Remarks
Loenstief x ThorlAegir x x
or Odin (no1 definitely identified)
15.11. Schlexwig Stockness x OdinlThor
25.11. Flensburg Loenstief x OdinlThor x x x
25.11. Tikn 1 Lwnstief x Odin/Thor x x x
Loenstief x OdinlTlzor x x x
Loenstief x OdinlThor x x x
Lwnstief x Aegir x x one line los1
Loenstief x Aegir x x x one line injury Io person
63.52'N+13.48'W
29.12. H. BOckler Berutief x Aegir x taken on board
29.12. Hoheweg Berutief x
Aegir x taken on board
29.12. C. Wiederkehr Berutief x Aegir x taken on board
29.12. Bremerhaven Berutief x Aegir x Rank protection
by 6 trawlers
29.12. Uranus Berutief x Aegir x ' x x taken on board
29.1 2. Sagirro Berutief x Aegir x x
6. 1.73Berlin Loenstief x Aegir x x x one line cod end, big net
63.51'+13.52' + other board
completely
destroyed
6. 1. Seydisljord Loenstief x AegirlThor x x x
8.1. Soar Berutief x Aegir x x x fishing gearlos1
8. 1. Berlin Berutief x Aegir x
64.04'+ 16.00 LIST OF INCIDENT WSlTHlN THE 12-50 SEAMILE ZONE OFF ICELAND (CORI.)
Demand to
leave the Fish-
Fishing 50-mile ing Attempt
Ground zone and Obstruc- loca- ta cul Fishing
Position cease tive lion fishing lines
Date Trawler Destination fishing by the Activity left lines cut Special Remarks
(36) 9. 1. Berlin Berutief x not identifiex x
(37) 9. 1. C. Kim,"/ Berutief x Aegir x x attempt Io cul
8 lines
(38) 21. 1. Sirius Vikurall x Odin x x two lines los1ishing gear 5
O
(39) 21. 1. Sagirro Vikurall x Odin x P
(40) 17. 3. Würzburg Westermann Thor x x one line fishing linesf g
O
(41) 7. 4. Glücksrodr Grindavik Odin x x z
(42) 7. 4. Hameor Grindavik Odin x x i
(43) 7. 4. Teuronia Grindavik Odin x x Iwo lines loss of al1 2
63.12'-22.30' fishing gear
(44) 7. 4. H. Bockler Grindavik Aegir x x two lines loss of al1 5
63.06'-22.29' fishing gear 21
(45) 8. 4. H. Boekler Grindavik Aegir x x x Iwo iiies loss of al1 rn
fishing gear
(46) 8. 4. C. Kdmpf Grindavik Aegir x x x two lines loss of al1
fishing gear
(47) 8. 4. Teuronio Grindavik Aegir x x near-collision
(48) 8. 4. Seydixfiord Grindavik Aegir x x
(49) 8. 4. Glüeksrodr Grindavik Aegir x x x
(50) 8. 4. Flensburg Grindavik Aegir x x
(51) 8. 4. Honsear Grindavik Aegir x x
(52) 8. 4. Kormoron Grindavik Aegir x x
(53) 10. 4. Siigefisch Grindavik Odin x x x
(54) IO. 4. Seydisfjord Grindavik Odin x x x
(55) 10. 4. Hanseor Grindavik OdinlAegir x x x LISI OF INCIDENT WSlTHIN THE 12-50 SEA MILE ZONE OFF CE LAND (colIf.) Nn
N
Demand to
leave the Fish-
Fishing 50-mile ing Attempt
Ground zone and Obstruc- loca- to cut Fishing
Position cease tive tion fishing lines
Date Trawler Destination fishing by the Activity left lines cut Special Remarks
OdiiilAegir x x x
(56) 10.4. Hoheweg Grindavik Odin
(57) 10. 4. Sagefiseh Wesrermann- x x drifted for 6
Mehlsack hours z
(58) 11. 4. Lübeck Mehlsack Odin x x one line
63.06-24.1 1 %
(59) 11. 4. Seydisflord Mehlsack Odin x x x "5
(60) 11. 4. Hanseor Weslermann- Odin x x
Mehlsack E
(61) 11. 4. Hoheweg Westermann- Odin x x 5
Mehlsack
(62) 12. 4. Sw.-Marir SO-Küste Thor or x x x two lines loss of al1 E
Aegir fishing gear
FriedrichBusse SO-Kiste Odin x x x
Uranus SO-Küste Odin x x x
C. Kimpf S-Mehlsack Odin x x x
Schütting S-Mehlsack Odin x x x
Spirzbergen Berutief Arvokur x x two lines loss of al1
63.12-22.15 fishing gear
Sehilksee1 Berutief Aegir x x one line lors of al1
63.59-13.27 fishing gear
Flemburg Grindavik AegirlOdin x x
Flensburg Grindavik AegidOdin x x
Flensburg Grindavik AegirlOdin x x
AegirlOdin x x x
Flensburg Grindavik
Hansear Tyr x one line I fishing line
damaged uanavxn3 .9 '81 (86)
%!iJ?!yJS '9 'LI (L6)
UUDwoH 'H .9 .LI (96)
I~JsUoH '9 '11 (56)
VJstlJDX '9 'l1 (P6)
u'>'OwJOX '9 .Il (E6)
ZJnqsZnV '9 '11 (26)
u!/dae '9.11 (16)
flopaESFU '9 'O1(06)
u!l'W '9 'O1(68)
u!/W3 .9 'O1(88)
8inqsW '9 '01 (~8)
ZJ~V~%" '9 '9 (98)
o!uoJnJL '9 'Z (58)
IaaSw!vs, '9 'Z (+a)
fJoplassna '9 'E (ES)
/JoP/assnci '9 'Z (28)
2JnqzJ!!M '9 '2 (18)
D!liOill~J '9 '2 (08)
1P~iSYJV9 'S '82 (6L)
UDYUJPJON '5 '82 (81)
Udax 'H 's '82 (LL)
PJoIlf!P.(aS '5'91 (9~)
~!~~oinJJ 'S '91 (SL)
syiewan ~s!~ads ins sau!~ ijal LI!A!IJV ail4 ~U!~SY uo!ieu!isaa ialme~~ aiea
sau!~ Su!qsy uo!i a.,!) asea uo!i!sod
Su!qs!d in3 01 -eso[ -sniisqo pue auoz puno13
idwaiiv 8ur ailui-nc 8ulqsi-l LIST OF INCIDENTS WITHIN THE 12-50 SEAMILEZONE OFF ICELAN DCOI~C)~. m
P
Demand to
leave the Fish-
Fishing 50-mile ing Attempt
Ground zone and Obstruc- loca- to cul Fishing
Position cease tive tion fishing lines
Date Trawler Destination fishing by the Activity left lines cut Special Remarks
,>,, --. -. -- .... Thor x x
(100) 18. 6. Sagirra Loenstief Thor x x
(101) 18. 6. Siriris Loenstief Thor x x
(102) 18. 6. Sonne Stockness Thor x x
\..., -.. .. . .~ ~ ~ Thor x x
Thor x x x
(104) 18. 6. C.Kampf
(105) 18. 6. Seydisfiord Thor x x x -
(106) 22. 6. H. Homann südl. Mehlsack X X
(107) 29. 6. Thunfich Blinde Rocks Alberr x x x shots were fired 2
bv Icelandic %
~atrol Boat O
(108) 2. 7. Augsburg Gammelloch Aegir x 3
(109) 2. 7. Teuronia Gammelloch Aegir x shots were fired 8
by Icelandic
Patrol Boat
(110) 2. 7. Schleswig S /O-Küste
(Ill) 4. 7. Düsseldorf Gammelloch
Orherobsrruefions:
(1) 14.11. H.B&kler injured person on board, unable to cal1at Icelandic port because of danger to vesse1and crew, transport by
helicopter
no fishing activity due to bad weather sought protection in 12-milezone;
(2) 20.11. Sagirra
demand for vesse1to leavezone -
(3) 29.10 Fehmorn no iïshing activity due ta bad weather-locatiowithin 3-mile zone;
AegirlOdindemand that vessel leave zone
Memorial on the Merits submitted by the Government of the Federal Republic of Germany