MEMORIAL ON THE MERITS OF THE
DISPUTE SUBMITTED BY THE
GOVERNMENT OF THE UNITED KINGDOM
OF GREAT BRITAINAND NORTHERN
IRELAND MEMORIAL ON THE MERITS
PART 1
INTRODUCTION
1. This Memorial on the merits of the dispute between the Government
of the United Kingdom and the Government of lceland is submitted to the
Court in pursuance of the Order made by the Court on 15 February 1973.
That Order was made in the light of theJudgment delivered by the Court on
2 February 1973, in which the Court found that it hasjurisdiction to entertain
the Application filed by the Government of the United Kingdom on 14April
1972, and to deal with the merits of the dispute. As was indicated in that
Application, the subject of the dispute before theCourt is the legality or other-
wise of the claim by the Governmentof lceland (now asserted through certain
Regiilations made on 14 July 1972) to extend the exclusive fisheries juris-
diction of Iceland, with cfïect from 1 September 1972, to a distance of 50
nautical miles from the coast of Iceland. The Order made by the Court on
15 February 1973, fixed I August 1973, as the time-limit for the filing of the
Memorial of the Government of the United Kinsdom on the merits.
2. Accordingly, and in compliance with ~rtiie 42 of the Rules of Court,
this Memorial places before the Court a statement of the facts relevant to the
merits of the disoute. a statement of the orincioles of law which fall to be
cun<tdcrc.I tn rclstt~~)tt,cr~ta,:~ndIIIC~.thn~~~,~.>oof. tlic (;o\crn~ncnt c~flhc
J c n i ring. I I C 1 an. I L r f 1.1. l'art II
of this Meniorial contains a history of the dispute up to the date of the
Application instituting proceedings and also an account of subsequent events
which is intended to bring the story as nearly as possible up to the date on
which this Memorial was filed. Part II1 presents the factsconcerning the need
for conservation of the resources of the fisheries in the area in dispute, the use
made hitherto by British and Icelandic fishing vessels of those fisheries and
their present dependence on them, andother related mattcrs. Part IV contains
a statement of the historv and deveio~nient of the rules of law relevant to the
dispute and a statement of what, in the view of the Government of the United
Kingdom, represents the current law governing the dispute. Part V sets out
the facts concernine certain activities carried out bv the Government of
lceland in intended enforcement of that claim and considers the rules of law
applicable to those activities and the legal consequences which flow from
fhem. Part VI contains a suniiiiary of the conclusions of fict and law put
forward by the Government of the United Kingdom in this case and sets out
the formal submissions to the Coiirt made herein by the Government of the
United Kingdom. PART 11
HlSTORY OF THE DISPUTE
A. Introduction
3. Though the particular dispute with which the Court is concerned in
this case niay be said to have arisen only in the course of the last two years,
it will be helpful to the Court to trace its origins soniewhat further hack in the
history of relations between the United Kingdoni and lceland concerning
fisheries jurisdiction in waters in which the vesselsof both countries claimed
the rieht to fish. ~ co~ ~nient commencement for this is the oeriod imme-
diately before the beginning of the present century. Accordingly, this Part
of this Memorial \\.ilfirst (in SectioB thereof) trace the history of the matter
from that point of tinie until the filing, on 14 April 1972, of the Application
instituting proceedings. In Section C it will carry the story from the date of
the Application up Io the latest convenient date before the filing of this
Memorial itself. (That date is 30June 1973.It ishereinafter referred to as "the
date by which this Memorial was compiled". However, the Government
of the United Kinedom reserve the rieht to ask the Court for leave to submit
subsequently certain further factual material relating to events alter that date
and lo niake further submissibns on thar material.)
B. History up to the Filing of the Application Instituting Proceedings
Sreps lea<li>rgip fo fhe Co~ri'eniionof 1901
4. As is described niore fully in Section B of Part IV of this Memorial.
nunierous fishing disputes arose between the European Powers in the 19th
century. They arose partly from the uncertainty concerningthe rules which
should be applied to bays, islands, islets and sand banks in delimiting the
territorialsea; 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
nt the same lime.
5. In order 10 avoid or reduce these disoutes and at the instance of the
Go\sriiiiicrit oi tne heilicrlsnJs. 3 Confcrcn;~ oi the Sorih P%>ueriria\
ion\ciieil di Tnc H:~giic in lhil. In Jren up thc <:(iriiention for Kegulitiiig
the I'olice oi tlic Sortli Sc:! I-i3heric. nh.ih na, signcJ hv .e.,recentitiiei <if
the Lnilcd King,l,iiii. I3r.lgi~iii. Ucnnidrk, I-r3ii:e. iierni:in;%!idihe Iuerhcr-
Iiiids on 6 \la).. IXh2 1.Ihe Coii\entii>n applicd only to the s~bjcci.. of tne
Iiirih Cainir:iiiincI';iiiiesIli i~hieita.15IO rerul~ic the ~oli:r. oi ihe fisher.e~
in Ïhe North Seaoutside territoriül waters. It%:astherefore necessaryto define
in preciseterms the sca areas outside which it should apply and this was done
in Article II. That Article reads as follows:
1 British and ForeignState Papers1881-1882,Vol. LXXIII, pp.39 er seq. MEMORIAL ON THE MERITS 269
"The fishermen of each country 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 their resoective cou-~~ies. as well a~ ~~-t~e ~
dependent islands and banks. As regards bays, the dAtance of 3 miles
shall be measured from a striiinht line drawn across the bay. in the part
nearest the entrance, ai the firit point where the width does'not exceed
10miles.
The present Article shall 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
Power to whom theshore belongs."
The area to which the Convention applied was, under Article IV, bounded on
the north by the parallel of the 61st degree of latitude and thus excluded the
ocean surrounding the Faroe Islands and Iceland.
6. Iceland had since 1814 been a de~endencv of Denmark but. under a
ne\\ Constitiition of 1x74. hdd been grdnicd a c~insiJerablc Jceree of auto-
nom).. In lnXvIccliind pascd ;iIair prohibitingir~wling"with.n ihe tcrritoriiil
\iiiier\ of lieland" and in 1894 iifuriher Ixrr \ras nss~cd makine. it an nfin;e
for a vesse1 even tobe in Icelandic territorial waters with a trawl on board,
except in cases of distress. At this tinie Denmark, while not making any for-
mal claim to a territorial sea er-ater than 3 miles..co-tended that ilwas not
bound by any international convention to the lirnit of 3 miles as regards the
maritime territory of Iceland. Denmark also began to formulate the IO-mile
rule for bays as a-rule ofgeneral law while the contention of the Government
of the United Kingdom at that time was that the IO-milerule was a conven-
tional rule only. (See. generally, Section B of Part IV of this Memorial.)
However, in 1894 a iemporary niodr,svivendi was reached whereby it was
agreed that British trawlers could use certain lcelandic ports if they would not
trawl within an ad hoc line drawn across Faxa Bay, and in 1898 the Althing
(the lcelandic Parliamentl amended th~~Law of 1894 to~th~ extent that
trawlers might enter lcelandic territorial waters for coaling and provisioning
and for passage or in fogs and in other circumstances than extreme distress.
The Conventionof 1901
7. The temporary rnodrtsvlvrndi provided the basis for the Convention
between the United Kingdom and Denmark for Regulating the Fisheries
Outside Territorial Waters in the Ocean Surrounding the Faroe Islands and
Iceland which was signed at London on 24 June 1901 1and which continued
to govern the position until alter the Second World War. This Convention
was closely modelled upon the Convention for Regulating the Police of the
North Sea Fisheries of 1882 (see para. 5 above) but Article 11 is somewhat
more precise. It reads 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 dependent islets, rocks and banks.
As regards bays, the distance of 3 miles shall be measured from a
straight line drawn across the bay, in the part nearest theentrance, at the
first point where the width does not exceed 10miles.
1 UnitedKingdom Treoly Series No. 5, 1903. The or.s--t Article sh~l~ not orei.dic> the freedom of navie~ ~~n or
anchorage in territorial waters accorded to fishing hoats, proGded they
conform to the Danish Police Rerulations ruling this niatter. arnongst
others the one stipulating that Gawling vesseli, while sojourningin
territorial waters, shall haGe their trawling gear stowed away io-board."
Under Article XXXlX the Convention was to continue iii forcr uiitil the
expiration of ta.0 years from notice by either party for ils termination.
,ThePeriodBerween 1901 and the Conclusion ofthe
1958 Corference
8. No significant developments in bilateral fisheries relations between the
United Kinedom and lceland took b lace durine the ~eriod between the
coiirlil\ltin tif ths <-<>nteni.<>n CIc)01:in;l the snJ%i tlic ~czon~ M'<>rlJWdr.
011 .i11iiliihc.rof o:ia\.on\ ilar c.v.liiiplc, ai The H.i~iie C'.bnfereii:e oiIY!il:
sce ri4r.i. 173hcl<>rvijhc <io\,ernnisni uf I;elaii,l inJ,c:ticd \viiie Ji$s;iii.is:i.on
with the position which obtained under the Convention of 1901 and undcr
customary international law, but there appears to have been no suggestion
that lceland was entitled, as a matter of law as the law then stood, to a wider
exclusive fisheries jurisdiction. Howcver, this dissatisfaction appears Io have
gained ground in lceland by the years immediately after the end of the war
and on 5 Avril 1948-bv this time lceland had achieved full indeoendence
frnni Deninlrk and n;is ilicrel'ore rc?p<insihle ior ils a\rn .ntern~tiaiiaI rcla-
lioni-!lis Althiiig p;~szcdtlic "L.;I!\ Lon.erning the Scicntifi~ Coiicsr\,rion
of the C,)niincntal Shsli Fisheries". il liei<illie\tof .in Fnx1i.h ir.i~isl~ti<~of
this Law is set 6ut in Annex 1 tothi; Mernorial.) Article 1-of this law autho-
rized the Ministry of Fisheries to "issue regulations establishing explicitly
bounded conservation zones within the limits of the continental shelf of
Iceland; wherein al1 fisheries shall be subject to Lcelandic rules and control;
Provided that the conservation ineasures now in effect shall in no way be
reduced". Article 2 orovided that the reeulations oromuleated under Article
1 should be enforcéd only to the extent compat~hle wijh agreements with
other countries to which Iceland was or might become a party. The Com-
mentarv on the Lawsubmitted to the Althine (a coov of an En~lish translation
of whiih is also set out in Annex I to this ~èmoial) stated iith reference to
Article 1 that "at present, the limit of the continental shelf may be considered
as being established ~reciselv at a deoth of 100 fathoms. It will. however. be
ncîccsar) ta carr)' oui ihc nio>t c:iref.)l in\esl~g~t~,lni on ordcr 10 citxhl~~h
whether ih~rIinejhotild bc dctcriii~~icdat 2 dirTereiitdepth."'lheCi~miiirni;ir)
aIs0 srizsilieJ the Ci~n\ention of lY01 xnd the Iniernatlon.,l Con\rniioii for
the ~egulation of the Meshes of Fishing Nets and the Size Limits of Fish of
19371 as agreements with which, so long as they remained in force, the
provisions of the Law might be incompatible.
9. On 3 October 1949, the Government of lceland gave notice to the
Government of theUnited Kingdom of the denunciation of the Convention of
1901. and. in accordance with Article XXXIX. the Conv.n~ ~n ceased to be
in forcr aftcr 3 Odiobcr 1951. II \r~sîImr thxt the Go\,crnnicnr oiIccI~nJ uns
prcparing io issu* regblîiion\ under the !.;tuui 194s. uhiih uould purport Io
apply to the United Kingdom and its nationals.
l
' H.M. Stationery Office,Miscellaneous No. 5 (1937). Cmd. 5494; Hudson, Inter-
nalionalLegislotion, Vol. VI1(1935-1937), p. 642. MEMORIAL ON THE MERITS 271
10. At a meeting held in London in January 1952the Minister of Fisheries
of the Government of lceland informed the Government of the United King-
dom in general terms of the proposed regulations. It was, however, clear that
the Government of lceland had already settled upon their course of action
and were not prepared to negotiate or to modify their plans in any way to
meet the views of the United Kingdom. The Government of the United
Kingdom warned the Government of lceland that failure to negotiate an
ad hoc line to take account both of British fishine interests and of the need
for con,crvaiiun inc.i\urc\ \i<~lJ :3iisc Jeep rcscntmeni aiiionx ihc British
irsu lcr ot,iicri and fi,hcriiicn aii.1 noiild risk pru\<ikirig rcr.iliat<ir) .istton.
The Rcci.I~iioii< vcrc ne\crihrlccs ni;iilc b\ the Gi>ieriiiiicnt <if Icrlxnd. The!
were dated 19 March 1952, and came into operation on 15 May 1952. ~he;r
effect was to establish a baseline joining the outermost points of the coasts,
islands and rocks and across the opening bays and to prohibit al1 foreign
fishing activities within a line drawn 4 nautical miles from this baseline.
11. In Notes addressedto the Government of Iceland on 2 May and 18June
1952, the Government of the United Kingdom protested against the claim to a
4-mile limit and against the latitiide which the Government of lceland had
taken in interpreting the Judgment of the lnternational Court of Justice in the
Ando-Norwe~iar~ Fisheries case~~1 on the validitv of baselines.The Government
ofïceland rel'ected these protests. The British irawler owners at Grimsby, the
Port used mainly by the Icelanders, then decided towithhold from Icelandic
"essels the landine fa..li~ ~s u~der their control. .~ a~retaliatorv measure
for rlie exzliision uf thcir \c,,cl\. h) iinil.ttcr>l action, frsiii fiiliing grounds
\\ hich ihc) 1ia.i pla)ed s Iarp part in dc\cluping .,nd rrhcrc the) liail firhcd
fitr iii.in\vc3rs. Tlic I,cl.in~lic fi,hinr: iniere,i,iIicn nro\ided IanJinl: f~ciliiics
of their own, but, when they began Lnding their fishat Grimsby, the skippers
and mates there and elsewhere decided not to sail their vessels while Ice-
landic-caught fish was being landed and sold. The port fish merchants
thereupon decided not to buy or handle Lcelandic-caught fish and theskippers
and niates then resumed fishing. (It should be made clear that it was the
Trawler Ofticers' Guilds at Grinisbv and elsewhere. re~resenting not the
owners but the skippers and mates, who decided that they kould notsail their
vesselsso long as Icelandic-caught fish was being brought in and it was the
Dort fish merchants who decided that thev wouid not buv Icelandic-cauzht
fi<h until the dlspiitc rr:is seiilcd The term "lsnding b~n" i.;Irequentl) used
in ihis coiiiieciii>n. It niust bc emphasilcd th:ii no ban nas cwr iniposed by
ihc Co\crnr~ient <ifihr United Kineduiii. The so.~a~lcd "l~ndine han" \<as
simply the effect of the refusal of merchants at the ports to bu; Icelandic-
caught fish, reinforced by the threat of the fishermen to refuse to go to sea if
landings of Icelandic-caught fish continued.)
12. There followed a number of attempts to find ways to resolve this
dispute, whether through direct bilateral discussions, through a possible
reference of leaa- issues to the lnternational Court of Justice or throuah t-e
piii,ihle dycnc) oi conic iwlinr...il I>c,J! iiich a, the IJcrnl~nc,nt Conimir.~ion
csi:ihlishcd iiiijer ihc ('unvciirisn ior ilic Ke~ul~iion uf the \lcshcb oft.ishing
Sei, 3nJ the S17cI.I~?II\ ~)i F~ih c>f l'>JO2 ur ille Iriicrndlion.ll Coun.'il for
the Explor;iiii>n ,iiihc Sci 'Ilicsc al1 pri~ie~iahi,rtive but it\i4\ c\eniuall)
f(iund piisjible to sci iip d.ici.i,ii>ni iinder the 31spiccs df the Orpliniz3tion
fur Lurope:in E;(ini>mi; ('<~-oper.iiiun in \%hichthe rcpre~cnthtive~ ui bath
' I.C.J. Reports 1951, p. 116.
2 231 UNTS 199.the Governments and both the fishine industries took oart. In November 1956
these discussions resulted in an agreement of which'the following were the
principal elements. Landings of Icelandic-caught fish in United Kincdom
ports were Io be resumed, bÜt such landings were no1 to exceed a total ainual
value of £1.8 million. British trawlers were to be allowed to take shelter in
Icelandic-claimed waters without having completely Io stow their fishing
gear. (The trawlers had previously been required Io cut loose their gear
before seeking shelter and this requirement had caused considerable loss to
the owners.) There was to be no furtherextension of Icelandic fisheries limits
pending discussion by the United Nations General Assembly of the Report
of the InternationalLaw Comniission on the Law of the Sea (see para. 13
below). At the same time the Government of the United Kingdom stated
that the agreement should no1 be interpreted as a recognition of the legal
validity of the methods employed by the Government of Iceland for deter-
miniog fisheries limits.
13. The result of the discussion bv the General Assemblv which this
agreement env15~gcJ.thal is Io say. the contoking of the firrt Uniied Saiions
Conference on the Law of the Se« whirh mct at Geneva from 24 February
1958to 27 A~ril 1958.and the ~roceedinrs and ouicornc of that Conferenie.
is described more full; in paragiaphs 184-199of this Memorial. At this point
it is sufficient to Say that the Conference did no1 reach agreement on the
maximum breadth of the territorial sea or on fisheries limits. However. it
adopted a resolution requesting the General Assembly to study a1 ils 13th
Session, in 1959, the advisability of convoking a second internationalcon-
ference for further consideration of the questions left unsettled. After the
conclusion of the Conference the Government of lceland declared that they
regarded themselves as having cornplete freedom of action both as regards
the extent of their fisheries limits and as regards the drawing of the relevant
baselines.
The PeriodBerweenthe Conclrtsion of rlie 1958ColferenceatrdtheE-vcharigeof
Nores of1961
14. This declaration and an announcement of intention which the Govern-
ment of lceland made on I June 1958were followed up on 30 June 1958when
the Government.of lceland issued a decree (Decree No. 70) which was to
come into eiïect on 1 September 1958, purporting to extend Iceland's fishery
limits Io 12miles from new baselines. Even before this decreehad been issued.
the Government of the United Kingdom niade furiher aticmpts ta setile the
dispute hy negotiation. A serics of infornial discussions was held in the North
Atlantic Treatv Oreanization in Paris between reoresentatives of the United
Kingdoni. ran c heF.edcrÿl Repuhlic of <ieritiÿn). and Iceland rcii,icu
tu ïchleving a con~promisc soluti~~n.Coniproniisc propoc~ls put loruard hy
the United Kingdom in;ludcd a scheine in whish ;tr~bri~intijl slt.ire ~f the
total sield of the fisheries throughout the uliolc are3 surrounding the coasts
oflceland ivould ha\,e becn guïrünieed tu the lielanders and iinpurtïareïs
would have been reserved for lcelandic small boat fishine. There was also an
alternativeproposal under which a continuous belt outsFdethe limit claimed
by Iceland since 1952 would have been reserved for lcelandic fishermen. An
arrangement of this kind would have lasted for three years or for a shorter
time if, meanwhile, a second Conference on the Law of the Sea had reached
agreement on territorial waters and fisheries limits. However, these talks
broke down a1 the end of August. A communiqué issued in London on 1 MEMORIAL ON THE MERITS 273
September 1958 explained that they had failed because, in return for any
interim arrangements, the Icelandic delegation h2.d demanded prior acknow-
ledgement of lcelandic "rights" Io extend their fisheries limits to 12 miles.
15. On 1 September-1958 the date on which the Government of lceland
vurvorted to brina their reaulations into force. the Royal Nav~ commenced
proiiding protecti% for ~Gtish trawlers inside "have&" situaied between 4
and 12 miles from the baselines. A full account of this phase of the dispute
was aiven in the Memorial on Jurisdiction which the Government of the
~nitèd Kingdom filed with the Court on 13October 1972. During this phase,
the Althing passedthe following Resolution on 5 May 1959:
"The Althing resolves ta protest energetically against the violations of
Icelandic fishery legisfation which the British authorities have brought
on with the constant useof force by British warships inside the ~celandic
fishery limits, now recently time and again even inside the 4-mile terri-
torial limits from 1952. As such actions are obviously intended to force
the lcelanders to retreat, the Althing declares that it considers that
lceland has an indisputable right to a 12-mile fishery limit. that a
recognition of ifs rights to the whole Continental Shelf should be sought,
as provided in the law on the scientific protection of the fish banks of the
Continental Shelf, from 1948, and that a smaller fishing limit than 12
miles (rom the base lines around the country was out of the question."
As the Memorial on Jurisdiction also describes, there were then further at-
tempts at negotiation after which the situation was further modified by the
Second United Nations Conference on the Law of the Sea which met in
Geneva from 17 March 1960 to 26 April 1960 (seeparas. 200-211 below).
Although the Conference itself reached no agreement on fisheries limits, its
deliberations on that matter did provide a basis upon which the Government
of the United Kingdom were eventually able. in August 1960.Io persuade the
Government of lceland ta enter into direct negotiations once more. The
Memorial on Jurisdiction described in detail the history of those negotiations.
As is there shown, they led to the Exchange of Notes of II March 1961 (see
Annex A to the Application Instituting Proceedings), which in efïect put the
dispute to rest for another decade.
Period Beiwecn 1961 und Filittg of Applicurion Insriritling Proceeditigs
16. There were no significant developments in the history of the dispute
during the period between the conclusion of the Exchange of Notes of 1961
and the general election which look place in Iceland in July 1971. Both
Governments gave efïect during that period to the terms of the agreement
embodied in that Exchanae of Notes and thev CO-overatedwith each other in
furthering the activitiesO? international bod;es concerned with conservation
and the rational exploitation of fisheries, such as the North-East Atlantic
Fisheries Commission. Nevertheless. the Government of lceland continued
to maintain that they were under an obligation, by virtue of the Resolution
of the Althing of 5 May 1959 (see para. 15 above). Io work for a further ex-
tension of Iceland's fisheries jurisdiction and they therefore declined to
become a Party to the European Fisheries Convention of 1964 1 although
they had participatedin the Conference at which it was adopted and had voted
1 581 UNTS 57.274 FISHERIES IURISDICTION
for the Resolution on Conservation which was also adopted at that Confe-
rence (see para. 222 below).
17. However, after the general election of July 1971and the formation of
a new Government in Iceland, the dispute was revived in an acute form. A
policy statement was issued by the new Government which included the
following passage:
"TERRITORIALWATERS
The Fisheries Agreements with the United Kingdoiii and the Federal
German Republic shall be terminated and a resolution be made about an
extension of the fishery limit up to fifty nautical iiiiles from the basclines,
efective not later than 1 Seotember 1972. At the same lime a zone of
juri~diciion of one hundrcd naiiiisal iiiile5 sliall bc cna;ied for proieciioii
againsi p~illut~un.Thc Governiiieni u.111in ihis niaiier coiisuli ihc Opr>o-
. ..
silion and give il an opportunity to follow ils entire development."
(The rest of the policy statement is not relevant to the question of fisheries
iurisdiction. The above oassare is taken from an unofficial Enelish translation
iupplied by the ~inistr; of Foreign Afairs of the Government of Iceland.)
18. The Government of the United Kingdom were naturally disturbed by
what was said in the policy statement not only about the proposcd extension
of fisheries liniits but also about the "termination" of the agreement con-
stituted by the Exchange of Notes of 1961.Accordingly, on 17July 1971, the
British Embassv in Reskiavik delivered to the Secretarv-General of the
Ministry of ~oreign ~fl;iirs of the Government of [celand-an aide-mémoire
which expressed their concern, reminded the Governnient of lceland of the
provisions of the Exchange of Notes of 1961 rclating 10 the reference of dis-
putes to the lnternational Court of Justice, pointed out that that Exchange of
Notes was not open to unilateral denunciation or termination, and fully
reserved the rights thereunder of the Government of the United Kingdom.
A copy of the text of this aide-mémoire is annexed to this Memorial as
Annex 2.
19. Followina the deliverv of the aide-mémoire of 17Juls 1971. talks were
hcldin~ondonon 13~ugds; 1971beiaeen \l~nistcrs~>ithe iiro Govcrnments.
No reconcili<ii~on of iheir \icws \\as <ichie\ed aiid. on 31,\iigusi 197I..in.ii<lc-
ni6nioircii3s handcd 10the British ,\mhs\\dJiir in Kc) kjs\ ik by the Sccreiary-
GcncraI of the hliiiisiry of I-tircign Aff.iirs<ii the Go.crniiien1 uf Iceldnd.
Aftcr rcfcrring iiannie of the rélevani prii,i>ii~n\ ofihc Ek~hlngc of Sates uf
1961 and in oarticular to the orovision therein for the reference of disoutes
to the lnternational Court of justice, and after asserting that "the objeci and
purpose of[that provision] have been fully achieved", the aide-mémoire went
on 10 say that, in view of certain alleged considerations which it described,
"the Government of lceland now finds it essential to extend further the zone
of exclusive fisheries jurisdiction around its coasts to Lnclude the area of sea
covering the continental shelf. Il is contemplated that the new limits, the
precise boundaries of which will be furnished at a laler date. will enter into
force not later than 1 September 1972." The aide-mémoire concluded by
indicating that the Government of Iceland were prepared to hold further
meetings between representatives of the Iwo Govcrnments "for the purpose
of achieving a practical solution of the problems involved". A copy of the
full text of the aide-mémoire of 31 August 1971 is annexed to this Memorial
as Annex 3.
20. On 27 September 1971 the British Embassy in Reykjavik delivered MEMORIAL ON THE MERITS 275
to the Secretary-General of the Ministry of Foreign Affairs of the Govern-
ment of Iceland an aide-mémoire in reply to the latter's aide-mémoire of
31 August 1971. This reply placed on record the view of the Government of
the United Kingdom that ruch an extension of the fisheries zone around
Iceland as was described in the aide-mémoire of 31 Aucrust would have no
basis in international law. It also recorded the rejection by the Government
of the United Kingdom of the view expressed by the Government of lceland
that the object and purpose of the provision, in the Exchange of Notes of
1961, for recourse Io judicial settlement of disputes relating to an extension
of fisheries jurisdicfion around lceland had been fully achieved. It reserved al1
the rishts of the Government of the United Kincdom under the Exchange
of ~Ges of 1961 including the right to refer disputes Io the international
Court of Justice. In then went on to note the proposal of the Government of
lceland that there should be further discussions and itindicated that. without
pre~iidtcr181Ihc legal position oiihe Ciorernmcnt ol'ihe Unitcd KingJsm ai
jiist oiitliiied. ilicy uere prep~red iu eiiicr into furihcr expluratury (lircui\ions.
The fiill iehi of the iidc.nicinoire of 27 Seniçriibcr 1971 irxiine\ed io this
Memorial as Anncx 4.
21. Both Governments having thus expressed their readiness to hold
further discussions, a first round of exploratory talks at official level ivas held
in London on 3 and 4 November 1971.The lcelandic Delegation stated that
there was universal agreemeiit in lceland to the effect that the fisheries limits
had to be extended. They explained that their Governnient had already
declared that the limits would be extended 10 50 miles no1 later thaii 1 Sep-
tember 1972, thus irnplementing the policy which had been enunciated as
early as 1948 through the Law concerning the Scientific Conservation of the
Continental Shelf Fisheries(see para. 8 above). In the view of the Government
of lceland the object and purpose of the Exchange of Notes of 1961had been
achieved and its provisions were no longer ..~li..ble. They would. however.
cndea\,i>iirIO find a praciical soliiiion IO the problenis <rhi>h wuiild :trise for
the British hhing indiirtry when the Icelaiidic iiiherie\ lin~iis nere extendçd.
The necessaryadjustment would consist of a phasing-out period. during which
some British fishine -ctivities woul~ ~~ntinue within the new limits. But the
detiils ofihe nature and exicnr of s.ich icii\ittes hrould havc io he\ii>rkedoui.
22. The Cniiecl Kinaduni Dclerarion reiierdied the i,ieu <if thetr Ciovcrn-
ment that the ~xchange of Notes if 1961was still in force, and that the com-
promissory clause had been inserted precisely to meet such a situation as now
seemedlikely Io arise. They recognized Iceland's dependence on fisheries and
her fears for the future but in their view these could no1 iustifv a unilateral
extension of limits though they might prove to justify infernaiional conser-
vation measures. They drew attention to the availability of the machinery of
the North-East ~tlantic Fisheries Commission to orovide such measures.
They po8nted oiii ihai itxould not he difli;uli for the fcu countrlç\ Jirciily
invol\eJ in tirhing on the I.'elandis grounds IO rcach agreenieni on ait ellec-
tive catch-limitation scheme which would stand a verv eoo. -hance of later
acceptance by other members of the Commission.
23. The lcelandic Delegation did no1 share the confidence of the United
Kingdom Delegation in Ïhe eflectiveness of multilateral conservation mea-
sures. In any event, they said; the problem was one no1 of conservation but
of division of stocks. A coastal State was now widely recognized to be in a
special position andto have a right 10exclusive fisheries limits. Their purpose
was to protect lcelandic fishing against massive competition by "super-
trawlers" from Spain, Portugal, Poland, the Soviet Union and Japan and tofacilitate the planned expansion of Iceland's own fishing industry. Multilateral
conservation measurescould not do this.
24. The United Kingdom Delegation repeated that British rights in the
waters around lceland werefirmly basedon traditional use.specific agreement
and customary international law and that the United Kingdom was bound to
protect them against a unilaterdl extension. If, however, lceland was ready to
work for an agreed arrangement to regulate fishing in thesewaters, the United
Kingdom would be glad to CO-operateand the Delegation undertook to
produce more detailed proposals for a cdtch-limitation scheme at the next
meetirig. In addition to the catch-limitation scheme the United Kingdorn
Delegation might be prepared ta consider any special reasons which lceland
might have for protecting particular areas. The ultimate aim would be
agreement between al1countries fishing in the area.
25. The second round of exploratory talks at official level was held in
Reykjavik on 13 and 14 January 1972. The United Kingdom Delegation
explained their catch-limitation proposal. The basis on which it iested was
that the Government of lceland would not proceed with their proposal for the
repudiation of the Exchange of Notes of 1961and the unilateral extension of
fisheriesjurisdiction. They reminded the Icelandic Delegation that at the 1968
meeting of the North-East Atlantic Fisheries Commission the United King-
dom had expressed ifs readiness (which ifhad on vdrious occasions sub-
sequently realfirmed) 10 take part in the negotiation ofany arrangements for
the limitation of catches in the lcel~ ~ ~~ea that scientific evidence mieht -
shou in he necessary(seepara. 110belnu). In accordance with the Kcsol~ti~~n
on Spscial Situations relating to Coîital Fisheries khich wab odopted ai the
Unlted Nations Confcrence on ihc Law OC the Sc3 on 26 Ariril 195s(sec oara.
190 below), the-Government of the United Kingdom iccepted ihat'such
arrangements should recognize any preferential requirements of the coastal
S~ate~resultine fr~m-its deoen~e.ce o~ ~ ~-~~sheries concerned. The most ~ ~ ~
recent scientiïîc evidence available to the ~orthI~ast Atlantic Fisheries
Commission showed that stocks of demersal fish in the lceland area were in a
satisfactory condition and could indeed sustain more intensive exploitation.
Nevertheless, having regard to the concern expressed by the Government of
lceland that an intensification of fishing by other countries rnight lead to a
depletion of the stocks and to the fact that the Commission was not yet
empowered to recommend measures of catch-limitation (see paras. 97-101
below). the Government of the United Kingdom would be prepared, as an
interim measure pending the elaboration of a multilateral arrangement within
the Commission, ta limit the total catch by British vesselsin waters around
lceland (i.e., in the International Council for the Exploration of the Sea
Area Va) to the average taken by such vesselsduring the IO years, 1960-1969;
Le., 185.000 metric tons. This would be a reduction of 22.000 tons from the
1971level. The Government of the United Kingdom considered that it would
be quite feasible to negotiate a full scale catch-limitation agreement on a
multilateral basis. but their proposal was for an interim arrangement as a
first step to meet the Icelandic requirement for quick action. In effect it was a ,
unilateral British ofïer to limit the tonnage of fish caught by British vessels.
The Government of the United Kingdom believed that the Federal Republic
of Germany would be ready to make a similar oiTer. They did not ask for
any limitation of catch by lcelandic vessels.
26. This proposal did not find favour with the lcelandic Delegation which
countered with a proposal of their own, the substance of which was that the
Government of lceland would proceed with their purported extension of MEMORlAL ON THE MERITS 277
jurisdiction; that British vessels would be permitted to fish in the area in
dispute for a limited phase-out period; that they would in that period b.e
permitted to take only a limited catch; that certain kinds of British vessels
would he totally excluded even in that period and others would bepermitted
to fish only in certain parts of the area and perhaps only during certain sea-
sons of the year; and that the details of al1 these limitations should be a
matter for further negotiation.
27. In view of rhc iifirent dppr.ixchcs of the rn<i Delcgst~unï, dcs;ribed
in ihc pre;ediiig p.ir~grsphi. t<ithe ppr<ipri~tc ha,ir fur a "pr3ciicaI soluiion
of the problems involved", these discussions did not lead to an agreement.
Meanwhile, the Althing had had before it a draft of a further Resolution on
this matter and, on 15 February 1972 it adopted an amended form of that
draft. This Resolution, as so adopted, reiterated that "the continental shelf
of Iceland and the superjacent waters are within the jurisdiction of Iceland"
and resolved that "the fishery limits will be extended 50 miles from baselines
round the country, to becomeeffective not later than 1September 1972''.that
"the Governments of the United Kingdom and the Federal Republic of
Germany be again informed that because of the vital interests of the nation
and owing to changed circumstances the Notes concerning fishery limits
exchanged in 1961 are no longer applicable and that their provisions do not
constitute an obligation for Icelnnd" and that "efforts to reach a solution
of the problems connected with the extension be continued through dis-
cussions with the Governments of the United Kingdom and the Federal
Republic of Germany". The full text of an English translation of the Reso-
lution is annexed to this Memorial as Annex 5.
28. The passage of this Resolution was followed, on 24 February 1972 by
the delivery of an aide-mémoire to the British Ambassador in Reykjavik by
the Minister for Foreign Affairs of the Government of Iceland. (A copy of
the full text o~~that aide-mémoirc ~-~a~-e~ ~ ~ ~ ~ ~ ~ ~ - ~l ~s A~ ~x 6:
the enclosures to that aide-mémoire are not so annexed but they were placed
before the Court, so faras they are relevant to the question of fisheriesjuris-
rliction. in ,Inn<\ H io the >\ppli;liti<in in,tiiuting pr,iceedings., At the 5"me
itmc 3, hc J~.lii,cred !hi\ side-nir'iiioire. the Xlinister for Foreign ,\lT.iirs relid
3 iornii~l\i.iicriiçiit. ihc icxof u.hiih iranncxcJ iciihir Meriiurial as Annex 7.
The aide-mémoire stated that. for th~ r-~son~ ~ ~~ ~ted in th~ ~ ~a~lier
communications on the matter, the Government of lceland "considers the
provisions of the Notes exchanged lin 19611no longer to be a~~licable and
-.
conseauentlv terminated" and ann~ ~ ~ ~~ ~ ~ "the~Governm&t of lceland
has accordi&ly decided to issue new regulations providing for fishery limits
of 50 nautical miles from the present baselines, to become effective on I Sep-
tember 1972. as set forth in the Resolution of the Althine unaniinouslv
adopted on f5 February 1972".
29. In the light of the Govcrnment of Iceland's aide-mémoire of 24
February 1972, and the statement which accompanied it (which together
reiterated the definitive decision of the Government of Iceland to extend
their exclusive fisheries zone to 50 nautical miles with effect from 1 Sep-
tember 1972, and their definitive rejection of the representations relating to
the illegality of such action that had been addressed to them by the Govern-
ment of the United Kingdom), the Government of the United Kingdom
coi.cluded that they had no course open to them but to have the dispute
referred to theInternational Court of Justice as provided for by the Exchange
of Notes of 1961. The Government of Iceland, who had previously been
informed that-this would be the probable outcome of their insistence on a278 FISHERIES JURISDICTION
unilateral extension of their exclusive fisheries zone. were notified of this
decision by the British Ambassador in Reykjavik on'3 i4arch 1972. On 14
March 1972 an aide-mémoire from the Government of the United Kinadom,
formally re-stating their position in reply to the Goverilment of lceland's
aide-mémoire of 24 February 1972, and giving formal notice of their in-
tention to invoke the agreed procedure for obtaining the sdjudication of the
International Court of Justice thereon, was delivered to the Minister for
Foreign Aiïairs of the Government of Iceland by the British Ambassador in
Reykjavik. Having in mind the imminence of the threatened action by the
Government of Iceland, the aide-mémoire indicated that the United King-
dom's application to the International Court of Justice would be made
"shortly" but it went on to point out that "the British Government are very
willin-! to continue discussions with the Government of lceland in order to
agree rdtirl;t:tory prncticnl .8rrangcnicnts l'or the pcriod ivhilc the case is
hefore the 1ntern;itiunal Ci>urt uf J.~\tice".,\:op). ofthc iiilte\t of the 3iJe-
mémoire is annexed to this Memorial as Annex 8.
30. As forecast in the aide-mémoire of 14 March 1972, the Application
instituting proceedings in this case on behalf of the Government ofthe United
Kingdom was filed with the Registrar of the Court on 14April 1972.
C. History after the Filing of the Application lnstituting Proceedings
Negoriutions up to the Request for Inlerim Measiwes of Protection
31. Even after the commencement of proceedings in this case, the Govern-
ment of the United Kinedom continued to seek an azreed arrangement. bv
negotiation with the Go;ernment of Iceland, to regulse the position after i
September 1972. These negotiations were now directed not so much at a
settlement of the substantive dispute as at the establishment of an interim
régime which would last only until the Court had given its decision on the
legality of the proposed action by the Government of Iceland or until that
auestion had been dis~osed of in someother wav. With this obiective in view.
nritish otli.i.11~vizitRe! kj3\ik for <I~i.iirstona 0thihc hliniiter of Ftsheriçi
oithe C;;>~ernillei~ot i liclarid. 311Jni111lielündi: of1i~i;ils.oii 19and ?OApril
1972. At those discussions they ~ro~osed interim arraneements which would
be entirely without prejudice t; the respective positik of the parties in
relation to the proceedings before the Court. Under these, British vessels
would, on and after 1 September 1972, and so long as the arrangements were
in force, continue ta fish without hindrance in the area in dispute-for prac-
tical purposes this was envisaged as being ICES Area Va, excluding areas
within the 12-mile line-but their total annual catch of demersal fish taken
in that area would be limited Io the average annual catch taken by such
vessels during the 10years, 1960-1969, i.e., 185,000 metric tons. These interim
arrangements would remain in force pending a more permanent settlement
of the dispute by negotiation or ofherwise. If, however, the dispute had not
been previously settled, the Iwo Governments would, at the request of either
of them made at any time after 1September 1975, review together the working
or the continuation of the arrangements. This proposal did no1 immediately
commend itself to the lcelandic negotiators but it was made clear to them
that it constituted aformal British proposal to which the considered response
of the Government of lceland was awaited. The Government of the United MEMORLAL ON THE MERlTS 279
Kingdom indicated that they were ready Io resume discussions in Londonor
Reykjavik as soon as that response was available.
32. Accordingly, the Minister for Foreign Affairs of the Government of
Iceland, accompanied by the Minister of Fisheries. visited London for talks
with United Kingdom Ministers on 23, 24 and 25 May 1972. They said that
they would no1 be content with a mere catch-limitation scheme, since this
would appear Io leave British vessels free to fish, as they had traditionally
done. up Io the lcelandic 12-mile limit for most or perhaps al1 of the year.
They therefore proposed:
(i) that limitations should beiniposed on the sizeand type of vesselsallowed
to fish;
(ii) that al1waters from the 12-mile limit out Io 25 miles should be reserved
Io lcelandic vessels;
(iii) that the zone between the 25-mile line and the 50-mile line should be
divided inIo six areas, each of which would be closed Io British vessels
except for ihree or four months of the year (the close seasons varying
from area Io area);
(iv) that certain additional areasshould be closed for conservation purposes
for one or two months each year;
(v) that certain areasshould be reserved for line and net fishing (i.e., so that
al1trawling, Icelandic and foreign, would be prohibited there);
(vi) that lceland would have the right to enforce its rules and regulations in
the whole area out Io the 50-mile limii; and
(vii) that the arrangement should operate until the end of 1973.
33. The United Kingdom Ministers explained that they could not accept
the basic elements of this Icelandic orooosal which would cive rise Io oarti-
. .
sullirly iliiliculi enforcciiicni prohlcm\ .ind uould r.\il~ryiish \ir\cls'frocn
thc \,:ilusblc psri <if iheir tr3Jitisr131 li\hinp grounds. They acre. h<~\ici,cr,
prepared to consider reasonable conservation iroposals (such as in subparas.
(iv) and (v) of para. 32 above) which might be grafted on to the catch-
limitation scheme. But this in tiirn was rejected by the lcelandic Ministers
who said that. for them. is was not merelv a matter of conservation or of a
restriction on the total United Kingdom catch; there must be some measures
which restricted British fishing activities in a way apparent Io the Icelandic
~eoole. The United ~inedom Ministers therefore u-ndertook Io re-examine
ihe catch-limitation schemeto seewhether it could be put forward in another
form which would go further to meet lcelandic wishes and susce~tibilities.
II was agreed that both sidesshould reflect further and meet again in the latter
part of June.
34. lcelandic Ministers returned Io London for further talks with United
Kinrdom Ministers on 19 and 20 June 1972. In fulfilment of the undertakine
givei a1the previous meeting, the United Kingdom Ministers put forward a
proposal basedon "effort-limitation" which would limit the United Kingdom
fishina effort off lceland to a level corres~ondine to an average cdtch of
185,& metric tons a year. The essenceof the schemewas that, in-the light of
pas1statistics (which were produced and discussed with the lcelandic Mi-
nisters). the average catch ihich a vesse1of a certain standard size and t..e
wodldtake couldbe expressed in terms of the actual time which it spent on
the fishing grounds. On the basis of thisrelationship-which could beapplied,
with the necessary ada~tations. to the operations of vesselsof a different size
or type-it woul-d be Possible to calcuiate the number of "effective fishing days" (in terms of a standard vessel) which the United Kingdom fishing fleet
asa whole would have to deploy in the Iceland area in order to catch whatever
might be their agreed quota. The schema therefore proposed ta allocate a
total number of "effective fishing days" (corresponding ta an annual catch of
185,Oûûtons) to the United Kingdom fishing industry who would then be
frèe ta arrange, in whatever manner suited them hest, the distribution of this
allocation to the vessels that needed to operate in the area. In this way it
would be Dossible ta avoid certain obiectionable features of the Icelandic
propos3ls.such as the total exclusion oî certain kinds of tlriiish vcsnelsand
the c~;lusion of 311 British vcçselsfraimsertain ïrclis Ho\\,ever, this scheme
also was not accepted by the Icelandic Ministerswho insisted that no scheme
would suffice which did not exclude British trawlers (but not Icelandic
trawlers) from certain "closed areas". The United Kingdom Ministers
accordingly undertook ta consider the possihility of accepting certain closed
areas if these could he justified on conservation grounds. It was agreed ta
resume the discussions in Reykjavik very shortly.
35. United Kingdom Ministers visited Reykjavik for discussions with
Icelandic Ministeis on II and 12 July 1972. lcelandic Ministers showed no v
interest in the British proposal for an "effort-limitation" scheme but instead
out forward ~ro~osals under which al1 waters within an inner limit. raneine -
ironi 14milc; to 27 mile. from ha,elines, uould hcclosed io 311 tlriti\h veiscls.
The are3 hei\icen th13inner Ilmit and the proposed 50-mile,)utcr Iiniii \rould
be divided into six sectors. of which two would be oDen ta British vesselsat
any one time, with no res&iction on Icelandic fishiniexcePt in an additional
conservation area. Since it was calculated that the effect of this would be to
eliminate about 80 Der cent. of the British catch. the United Kinadom
Ministers rejçcied ih&e proposlils lis libs,is for negotiation. They did.how-
ever. indicatc readiness to considcr a cllmhin3tion of rirea clusures 2nd catch-
Iiniitation uhich would rerult in a reduction of the British catch to a Icvel ?O
.percent. below the 1960-1969 average, and they said that some special non-
discriminatory closures on conservation grounds might be acceptable in the
area immediately outside the 12-mile limit.
36. In these circumstances the discussions again failed ta produce agree-
ment. The Icelandic Ministers then announced that Regulations, to he issued
on 14 July 1972, would exclude al1 foreign vessels from fishing within the
50-mile limit af~er I~ ~ .~mber~ ~72.The Reeula-~~ns would also orovid~~f.r ~ ~ ~
two conservation areas in which Icelandic fishing would he restricted. They
made it clear that the ~ubiication of the Regulations need not affect arranpe-
ments which might subsequently he concluded with other countries and they
stated that, as regards the United Kingdom in particular, they would try ta
work out a possible arrangement and would he glad ta hold further talks in
Londonor Revkiavik. The United Kinedom -eleeation said tbat thev would
always be reaiy io consider proposais but, in face 8f the announcement of the
imminent introduction and implementation of the Regulations, they mean-
while reserved the riahts of the~united Kinedom -n areas outside the oresent
12-mile limit and gave natice that thcy \r,ould seek an Indicaiion of interini
Mesures uf L3roic;tion from the Internniion~l Court of Justice.
37. In conformity with their announced decision, the Government of
Iceland issued Regulations on 14 July 1972 purporting to carry into effect
their declared intentionunilaterally to extend the limits of Iceland's exclusive
fisheries iurisdiction ta a distance of 50 miles from haselines round Iceland
on I SeSember 1972, and thereafter wholly to exclude the fishing vesselsof
other countries, including those of the United Kingdom, from that part of MEMORIAL ON THE MERITS 281
the high seaswhich is included within those extended limits. The text of the
Regulations is at Annex 9 to this Memorial.
38. On 19 July 1972 the Request made by the Government bofthe United
Kingdom for the Indication of Interim Measures of Protection was filed with
the Court. On 24 July 1972, the British Ambassador in Reykjavik was in-
structed to inform the Government of Iceland that. since the latter had, in a
Nuie transniiiting to the ti~lb~s\ya copy of the Kegulations of 14J~ly 1972,
reaitirnied thçir rcîdiness in mark for 3 prÿaicill\olution of the problems
involved. the tioi,ernment of the Unitcd Kinadom uere ajkine ihe Court to
defer thé oral hearing on the Request until Ï August 1972, inorder to .give
time for consideration of any further proposals which the Government of
lceland might wish to put forward. No such proposals having been received,
the oral hearing on the Request took place on 1August 1972,and the Court's
Order thereon was made on 17 August 1972.
39. After the filing with the Court, on 19 July 1972, of the Request for the
Indication of lnterim Measures of Protection and the hearing of oral argu-
ment thereon on 1 August 1972, but before the delivery of the Court's Order
thereon on 17 August 1972, the Government of Iceland delivered a further
Note to the Government of the United Kingdom. The text of that Note,
dated 11 August 1972, is set out at Annex IO to this Memorial. Itwill be
seen that it implied modification in two main respects of the previous Ice-
landic proposal for a rotating system of closed areas (see paras. 32 and 35
above). First, the Government of lceland stated that they would he willing to
"discuss the possihility" that the inner limit of the zone in which British
vesselsmight continue to fish (albeit subject to certain restrictions) should be
the 12-mile line "in several regions". Secondly, the Note indicated that the
previous proposal to limit the sire of British vesselsthat would he permitted
to operate might be modified so as to allow fishing by vessels of up to 180
feet in length or about 750 to 800 gross registered tonnage: the figures that
had previously been mentioned were somewhat lower than these.
40. Thoueh this latest lcelandic communication fell far short of what was
needed if asatisfactory interim settlement was to be achieved, the Govern-
ment of the United Kingdom considered that they ought to continue dis-
cussions with a view to Gying to reach suih a settlement. Accordingly, in a
Noteto the Government of lceland which was delivered on 28 August 1972,
they indicated their readiness to hold such discussions "at the earliest
mutually convenient date". The text of that Note is set out at Annex 11 Io
this Memorial. Since the Court had by then made its Order of 17 August
1972, indicating the Interim Measures of Protection which should be taken
by both parties, the Government of the United Kingdom Look the view,
which they made clear to the Government of Iceland, that any settlement
which might be agreed between them should be compatible with that Order
and in their Note they expressly recorded their ownintention to CO-operatein
implementing the Order.
41. In reply to this the Government of Iceland delivered a further Note,
dated 30Au~ust 1972.the text of which is setout in Annex 12to this Memorial
They repeated that they did not consider the Court's Order to be binding on
them "since the Court has no jurisdiction in the matter", but they left the
way open to further discussions.
42. Accordingly, after the Government of lceland had, in September 1972,
rejected a proposal which had been made by the Government of the Federal
Republic of Germany to hold a tripartite meeting of the officiais of the three
Governments, it was agreed at informal discussions in New York on 28 Sep-tember 1972, between the Secretary of State for Foreign and Common-
wealth Affairs of the Government of the United Kingdom and the Minister for
Foreign ~ffahs of the Government of Iceland that there should be further
talks between United Kingdom and Icelandic officials. These took place in
Reykjavik on 5, 6 and 7 October 1972. The principal purpose of these talks
was to consider possible arrangements under which various specific areas
lying between the 12-mile and 50-mile lines might be closed to British vessels
during certain periods of the year. On the United Kingdom side the objective
was to try to find a oattern of closures. consistent with the Court's Order of
17 ~ugu; 1972, whkh gave effect to conservation needs in a non-discrimin-
atory way but gave due preference to the position of Iceland as a coastai
State specially dependent qn its coastal fisheries. A number of possible
schemes were considered, each involving the closure at any one time of a
fixed number of areas out of the six into which the whole zone between the
12-mile and 50-mile lines was to be divided. Two of them would have given a
pattern of seasonal closures which left British vessels free to fish in areas in
which, in 1971, they had taken approximately 170,000 metric tons of Fish
(the figure specified in the Court's Order of 17 August 1972). These were the
schemes preferred by the United Kingdom officials. Two other schemeswould
bave confined them to areas from which they had, in 1971, taken only
approximately 156,000 metric tons. These were the schemes preferred by the
Icelandic officials. A fifth scheme was also devised which, it was calculated,
fell midway between these two positions, giving a potential catch, in 1971
terms, of approximately 163,000metric tons. In addition, it was accepted that
certain other areas would also be closed on Dure conservation erounds (for
cxamplc. hccaiire ihey acre spdtining .ire.tr) .;nd crriain otlie3ry.11\%auljbc
closed io al1irairlcrs and reiiie.net tiihin~:iesceldt ceriain tioici of ihc ).ex
in order to protect lcelandic fishing with fixed gear. Futhermore, the lcelandic
side made clear that they wouldalso demand that the British fishing effort
which could be deployed in the areas otherwise open to British fishing vessels
should be further reduced bv the exclusion of al1 such vessels ahove acertain
size; the United Kingdom side indicated that this would not he acceptable.
Except in relation to the areas set aside on pure conservation groundsand in
relation to the lareer Icelandic tt'awlers in the so-called "fixed eear areas".
there was no suggestion that the activities of Icelandic vessels should be iB
any way restricted.
43. In these circumstances. officials were unable to aeree unon a ioint
recommendation of any of these schemes but the position was'referrëd to
Ministers on hoth sides. However, the Government of Iceland then indicated
that they were unable to endorse an arrangement even on the basis of either
of the second group of two schemesreferred to in paragraph 42 above (i.e.,
those relating to a catch of 156,000 metric tons) which they regarded as in-
sufficientlv restrictive of British fishine ~Derations. Thev were not oreoared to
continue discussions on the basis of any-of the pattern; of closure deksed by
officials. However, there was then a further exchange of messages between
Ministers of the two Governments through diplomatic channels and these
eventually resulted in an agreement to hold further discussions at Ministerial
level.
44. These further discussions took place in Reykjavik on 27 and 28 No-
vember 1972.The United Kingdom delegation pressed Icelandic Ministers to
accept an area closure scheme on the lines that had been worked out by
officials. But no meeting of minds could be achieved on this since, inter alia,
Icelandic Ministers refused to accept the United Kingdom calculations as MEMORIAL ON THE MERITS 283
Io the effect, in terms of likely catch, of the particular closures that had been
suggested: indeed, they disputed the possibility of ever calculating with any
reliability what reduction of catch might be expected to result from any given
scheme of areaclosures. It was apparently for this reason that they insisted on
highly restrictive area closures-they required three out of six areas to be
closed at any one time in a seasonal pattern which had a severely limiting
elïect-coupled with the exclusion of al1 vesselsabove a certain size. Faced
with this argument, the British dclegation suggested turning again Io the idea
which had been put forward during the discussions in June 1972(see para. 34
above), that is to say, that instead of an area closure scheme or an overall
catch-limitation scheme there sl'c-uld be an effort-limitation scheme under
which the actual lime spent on the fishing grounds by British vessels would
be controlled and would be restricted to a quota of "effective fishing days"
which look due account of the different catching capacities of different vessels
accordinr to their size. etc. But lcelandic Ministers ~rofessed theniselves
unable to believe that a scheme of the kind which had bien proposed in June
could!be adequately policed or would produce the result, in terms of catch-
reduction. that was attributed Ir>it. Thev said that. while thev were not
opposed in principle to proceeding on the basis of an effort-limitation
scheme, the actual scheme proposed by the British side was not acceptable Io
them and they had no alternative to put forward. In these circumstances, in
the lcelandic view, there was no point in prolonging the current round of
discussions. However, it was eventually agreed that there should be further
siudy of the proposals that had been made and that a further meeting al
Ministerial level should take place.
45. In due course, the Secretary of State for Foreign and Commonwealth
AiTairs of the Government of the United Kingdom and the Minister for
Foreign Affairs of the Government of lceland again met informally while they
were both in Brussels on other business. At this meeting, in early December
1972, the Minister for Foreign Affairs asked the Secretary of State Io put
forward a proposal coupling an effort-limitation scheme (as had been previ-
ously proposed) with the closure, on a rotating basis, of a single area, the
whole Io produce a catch reduction of 25 per cent. of the 1971 total. The ,
Secretary of State did put forward such a proposal. He then, and by sub-
sequent messages, pressed the Minister for Foreign Affairs Io agree Io the
resunlption of formal discussions on the basis of that proposal. However, the
reply from the Foreign Minister, which was eventually delivered through the
British Ambassador in Reykjavik on 19 January 1973, was in the following
terms: "1 have discussed Our meeting in Brussels and the contents of your
messagesof 29 December and 13January with my colleagues.~Theconclusion
is that the proposals involved are no1 acceptable and il is therefore my
Government's view that the resuniption of formal negotiations would no1 be
helpful al this stage. We are, however, ready to discuss new proposals." At
the same time the Minister for Foreign Affairs handed over a memorandum
amplifying the views of the Government of Iceland, which were very largely
unchanged from those put forward during the negotiations in the previous ,
November. The text of that memorandum is set out in Annex 13 to this
Memorial.
46. Even in the face of this evidence of the reluctance or inability of the
Government of Iceland to engage in serious and reasonable negotiations, and
despite the campaign of harassment of British vessels that was at the same
time being conducted by Icelandic coastguard vessels(see paras. 53, 54 and
308-314 below), the Government of the United Kingdom did no1 abandon 284 FISHERIES IUR~SDICTION
their attemnt to achieve an aereed interim settlement. On 22 Januarv 1973.
the British ~mbassador in ~eikjavik transmitted to the Minister for Foreign
Affairs a uersonal message from the Secretary of State for Foreign and
~ommonwealth Affairs inreply to the Minister's own messageof 19January
(see para. 45 above). After reminding the Minister of the circumstances in
which the latest proposal had been put forward and of the Minister's own
sueeestion that the obiective should be an arrangement which left the British
fishing industry free tg take up to 75 percent. ofits 1971catch, the Secretary
of State ex~ressly proposed in his message"that discussions be resumed at an
early date-with the task of establishing whether it is possible Io devise an
arrangement which could reasonably be expected to produce this result". ,
The text of a confirmatory copy of the message, which was left with the
Minister for Foreign Affairs, is set out in Annex 14to this Memorial.
47. No immediate reply was given by the Government of lceland to the
messagedescribed in paragraph 46 above. However, the British Ambassador
in Reykjavik, acting on instructions, continued to press the Government of
lceland to agree Io the early resumption of discussions. He also pressed for
the discontinuance of the campaign of harassment of British fishing vessels
which was being intensified and which, if persisted in, clearly risked producing
a situation in which it would be impossible for negotiations for an amicable
settlement of the dispute to be carried on. It was against this background
that. on 8 March 1973. the British Ambassador in Revkiav. .delivered to the
Forcigii hlinirirrof the Government oi icelxnd Sei anoihcr pcrsori;,l iiic\\.igc
froni the Sccret~r) of Siste fdr Foreign aiid C<iiiiiiioniic.iltAtlstrjin xhich
' the latter drew attention once more to his earlier oronosal. reiterated his
conviction "that the only way of dealing with this dispute in a reasonable
fashion is by discussion and negotiation" and asked the Icelandic Foreign
Minister to agree "to the resumption of negotiations at an early date". The
fulltex1 of this messageis set out in Annex 15 to this Memorial. In the light
of the message,and also of his own repeated representations about continuing
harassment of British fishine vessels. the British Ambassador thereafter had
several discussions with Ministers of the Government of lceland concerning
the possibility of holding substantive negotiations and also concerning the
oossible content of anv such nenotiations. The Government of Iceland
eventually agreed that officiais of the British Government should go to Reyk-
javik for preiiminary talks with lcelandic Ministers to clear the ground for
discussions between Ministers of both Governments. The talks took olaceon
22 March and made some progress in identifying the issues and the areas of
agreement and disagreement. The Government of the United Kingdom
accordinglv uressed. throunh the British Ambassador in Reykiavik, for an
early date iobe fixed for the-holding of substantive negotiations at Ministerial
level on both sides. However, it was not until the beginningof May that such
negotiations took place.
48. On 3 and4 May 1973,a Delegation led by Ministers of the Government
of the United Kingdom again visited Reykjavik and held discussions with
Ministers of the Government of Iceland. These discussions centred principally
on the size of the catch which British fishing vesselsshould be permitted to
take and on the restrictions which the Government of Iceland wished to see
imposed with respect to the size and type of vesselsemployed and the areas in
which British vesselscould operate. At the beginning of the discussions the
Government of lceland put forward orally a set of proposals on al1 these
matters. They confirmed these in writing at the end of the meeting. During
the discussions the United Kingdom Delegation made a number of counter- MEMORIAL ON THE MERITS 285
proposais which they confirmed in writing. But at the end of the discussions
the two si~e~ ~emained far aDart. There is set out in Annex 16to this Memorial
the full text of a statement, reporting on the discussions, which was made to
the House of Commons of the Parliament of the United Kingdom on 7 May
1973 bv the Secretarv of State for Foreien and Commonwealth Affairs. ~here
. ~ ~ ~ ~ ~
is also set out in ~nnex 17 to this Memirial the text of the counter-proposais
made by the United Kingdom Deleration at the discussions. Though the
Government of lceland undertook to study these, they were not then pre-
pared to take the negotiations fiirther. The hope was expressed on bath sides
al the end of the discussions that they might be resurned in the future, but
no date fo~ ~ ~s was arraneed .. ~ and no further discussions were held before
ihe d;ile b) \ihizh ihis \leniuri~l \\a> ~otiipiled (sec pciri. 3 übu\c~. Thc pro-
posais niide by thc 1niir.J KingJi>iii Delcgliiun reinciin open.
Evenr.~on the FishirigGroitnds Since 1 Seprember 1972
49. Bv its Order of 17 Auaust 1972 indicatine lnterim Measures of Pro-
tection ihe Court required the Government ofthe United Kingdom, inter
alin, to ensure that vesselsregistered in the United Kingdom did no1 take an
annual catch of more than 170.000 metric tons of fish from the Sea Area of
lieldnd 25 JelincJ hy ihc liiicrn.itiori;ilCoiiniil f<>rthe Exp1dr;iiisli ol'ilic Seci
as r '1. 41 the iinie Ifiiic ir rr.4uirr.J the Go~ernnienl of I;r.lsnd io
rr.fraiii froni idkinr: dnv nieaurer io eniorcc iheir rr.sul:tti<in\ i)f 11July 1972
against vessels registeied in the United Kingdom-and engaged in fishing
activities in the waters around lceland outside the 12-mile fishery zone and to
refrain from aoo.. .e administrative. iudicial or other measures aeainst shi~s
registered in the United Kingdom;their crews or other related persois,
becauseoftheir having engaged in such iïshing activities. Each Party was also
enioined to ensure that no action of anv kind was taken which might aeera-
vaie or extend the dispute submitted to the Court or which mighiprejidice
the rights of the other party in respect of the carryingout of whatever decision
on the merits the Court may render.
50. The Government of the United Kingdom, for their part, have dis-
charged the requirements thus laid on them. They have instituted a scheme,
initially on an administrative basis and as from 30 October 1972, on a
statutory hasis, to ensure that the total catch by British fishing vessels
remains within the limit set by the Court. Full detailsof thisscheme have been
supplied to the Court and to the Government of lceland as required by para-
graph (1) (f) of the Court's Ordcr of 17August 1972.The Government of the
United Kingdom have also ensured, so iar as it lay with them to do so, that
no action has been taken which might aggravate or extend the dispute sub-
mitted ta the Court or which might prejudice the rights of lceland in respect
of the carryingout of the Court's eventual decision on the merits.
51. In order to meet thecampaign of harassrnent of British fishing vessels
which is descrihed helow, the Government of the United Kingdom have made
available, under the auspices of the Ministry of Agriculture. Fisheries and
Food, a number of civilian support ships whose task has been to accompany
the British fishing,vessels and tu provide them with any help. of a medical,
meteorological, mechanical or similar nature, which they might require to
ensure their safety. This is merely a continuation and expansion of ü huma-
nitarian service which has for some years been provided, by the Department
of Trade and lndustry of the Government of the United Kingdom, for
British fishing vessels operating in the winter months in the waters off thenorth-west of Iceland. The demands made on the service by such vessels
naturally increased once il became apparent that, because of the threatening
attitude of the lcelandic authorities,vessels, which were in distress or other-
wise in need of such assistance could no longer put into lcelandic ports or
move closer inshore without running the risk of arrest.
52. At a later stage, when the harassment became more intense, the
Governmentof the United Kinedom also made available other civilian vessels
(ocean-going tugs) who, in addytion to augmenting the humanitarian support
service, had the function of interposing themselves whenever necessary
between British fishi-e vessels and the lcelandic coast-uard vessels that were
harassing them. These tugs were under strict orders to operate at al1tinies in a
purely defensive capacity and to comply with the requirenients of good sea-
nianship and the ~Bternationa~ Regulations for the Prevention of Collisions
at Sea (as adopted at the International Conference on Safeiy of Life at Sea
which met in London in 1960).
53. Finally, after the lcelandic campaign of harassment had reached the
point where it was clear that British fishing vessels could no longer exercise
their right to fish in the area uiiless they did so with naval protection, the
Government of the United Kinedom authorized vessels of the Roval Navy
on 19 May 1973 to provide such-Protection. In a desire to do everyihing rea-
sonably possible to avoid exacerbating the situation, the Government of the
United Kingdom had previously ordered their naval vessels Io remain out-
side the 50-mile line although the area inside that line is on any view (inclu-
ding that of the Government of lceland themselves) an area of the high seas
and is thus an area in which they have always had every right to be. But by
19 May 1973 the violence used by lcelandic coastguard vessels had reached a
pitch which made this policy no longer possible Io maintain. By that date
there had been no less than 20 incidents involving gun or rifle fire by lcelandic
coastguard vessels and a number of attempts or threatened attempts by them
to board British fishing vessels. Accordingly, vessels of the Royal Navy have
since that date joined thc civilian tugs in their task of providing protection in
a purely defensive role. On no occasion has either any of the tugs or any
vessel of the Royal Navy carried out any onènsive action against lcelandic
vessels. Nor has anv tun or anv vessel of the Roval Navv interfered with the
operation or navigationof lcelindic vessels in a& way béyond what has been
strictly necessary to prevent, or ta cause the discontinuance of, unlawful
attacks by them on British fishing vessels.
54. The Government of lceland have not complied with the reqtiirements
laid on them by the Order made by the Court on 17 August 1972. On the
contrary, shortly after I September 1972, they instituted a campaign of
harassnient by lcelandic coastguard vessels of British fishing vessels operating
inside the 50-mile line and that campaign has continued, with some periods of
remission but overall with increasing intensity, thereafter. A more detdiled
account is set out in Part V of this Memorial.
55. This' campaign of harassment failed in its attempt to drive British
fishing vessels out of the area of high seas in question only bccause of the
institution of naval protection on 19 May 1973. It has resulted in much
material loss and damage Io the trawler owners and to the trawlermen con-
cerned. It has been conducted not only in total disregard of the Order made
bv theCourt on 17Aueust 1972.but also in defiance of the acceoted normsof
international behaviourapplicable to situations such as this where legal rights
are in dispute. More specifically, it has been conducted with deliberate or
reckless disregard for the safety and property of the British nationals involved. MEMORIAL ON THE MERITS 287
In Part V of this Memorial, the Government of the United Kingdom will give
an ac~ ~ ~ ~with ereater oarticularit...of the conduct ol which thev cornplain
and of the ioss and damage that has been incurred by theirnationak in conse-
auence thereol. Part V also contains the observations which the Government
if the United Kingdom wish to make to the Court on the legal consequences
flowing from the said conduct and the said loss and damage. FISHERIES IURlSDICTlON
PART III
FACTS CONCERNING THE CONSERVATION ANP
UTILIZATION OF THE FISHERIES
A. Introduction
56. The grounds on which the Government of Iceland claim that it is
necessary for them to extend their fisheries limits may fairly be sumrnarized as
follows:
(1) The fish stocks are in danger and only control by Iceland of the waters
over the continental shelf can effectively protect them (the"conservation
vroblern"): and
(2) The exceptional dependence of the Icelandic population on the fishing
industry makes it equitable that they should be entitled to take al1 the
fish in that area (the "utilization problem")1
57. The United Kinndom. while not acce~tine .hat-either of these oro-
positions, if proved, wiuld entitle Tceland, in law, to extend its limits "ni-
laterally, denies that either proposition is true as a matter of fact. The United
Kingdom's case is that, when the,facts are examined, it appears:
(1) that the fish stocks are in no imminent danger and that al1 necessary
measures of monitoring and control are being taken and can be taken
under existing international arrangements; and
(2) that. while it-is undoubtedlv eauitable that Iceland. as a coastal State
parti~.ul<irlydependent on fishini. should be givcn sonic prlority ire3irneiit
. in the uatcrl of the srca.11ccrtx.nly1, ni>[ju\i or cq~itahle in prcscnt or
any foreseeable circumstances that it should be ~ermitted to take al1 the
fish itself to the exclusion of the other States which over a very long period
of years have shared the fishing with it.
B. The Conservation Prnblem
58. 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 numher of fish in the sea is limited. The con-
servation and efficient exploitation of the fish stocks in the lceland area is
of importance not only to lceland but also to the other countries who fish
there and in particular to the United Kingdom. Furthermore, since a large
oro~ortion of the fish caue-. bv Icelandic vessels is exoorted. the conser-
bat& and exploitation of the stocks is of importance to the pophations who
in the present or in the future may depend on the area as a source of food
thoughthey play no part in its exploitation.
Seethe Governmentof Iceland'sMemorandum, FisheriesJurisdictiin Irelond,
p.28,supra, Enclosure2 to Annex H to the Applicationinstitutingproceedings. MEMORIAL ON THE MERITS 289
The Interesr of lhe UnitedKingdom
59. The United Kingdom has a particular interest in the conservation and
utilization of the fish stocks in thisarea. British vesselshave been fishing in
these seasfor centuries. They have been trawling there for about 80years and
they have done so in a manner and on a scale comparable with their present
activities for u~wards of 50vears. The fieures available over the last 50 vears 1
show th& of the demersal species(for ;hihich alonî British vesselsfish ii these
waters) they have taken a remarkably steady proportion of what (apart from
the war years) has heen a remarkably steady catch. Taking one year with
another, the share taken by British vesselshas been about half that taken hy
lcelandic vessels and about equal to that taken by the vessels of al1 other
States together 1.This catch forms an important part of the total catch of the
British fishing industry 2 and the United Kingdom has always played a
prominent role in the conservation of the stocks 3.
The Fisheries of the Iceland Area
60. Both pelagic and demersal fish are caught in the Iceland area. Pelagic
fish (mainly herring and capelin) are (or were)4 of great importance to the
Icelanders but Britishvessels do not fish for them in the Iceland area, have not
done so for many years and areunlikely to do so in the foreseeable future. It
is demersal fish alone which are sought by British vesselsin the lceland area.
The main species are cod, saithe, haddock and redfish. Of these by far the
most important is the cod, which accounted for 75.9 percent. of the United
Kingdom catch in 1971.
61. Accordingly, in considering whether, as the Government of Iceland
appear to assert, it is necessary, in order to conserve the fish stock, to exclude
British fishing vessels from the high seas to a distance of 50 miles, it is pri-
marily the cod stock and only secondarily the other demersal stocks which
must be considered.
(a) The codfisheries
62. There are two distinct cod fisheries in the lceland area, the spawning
fishery and the non-spawning fishery. The spawning fishery lies almost wholly
within the 12-mile limit 5 and is accordingly exploited almost entirely by the
Icelandic fishing industry. The non-spawning fishery lies largely outside that
limit and is exploited partly by lcelandic vesselsand partly by the vesselsof
other States which have for many years shared the fishery with Iceland.
63. The catch figures for 1971were as follows:
Spawningfihery Non-spawningfshery
tons tons
Iceland ....... 180,000 Iceland ....... 75,000
United Kingdom . 162,000
WesternGermany. .. 27.000
Othen. ....... 14,000
-278,000
-
l Seethe tableat Annex b8to this Memorial and thegraphat Annex 19.
2 Seepara. 137below.
3 Seeparas.88-124below.
See paras.83-87below.
Seethe map at Annex 20 to this Memorial. MEMORIAL ON THE MERITS 291
used by theimmature cod; they do appear in the non-spawning fishery but in
relatively small numbers.
68. The catch in these fisheries denends on thesireof the stock. and this in
turn depends on the balance betiieen the longer-term eiïect of fishing and the
supply (recruitment) of Young cod to the stock. The main effect of fishing is
seen in the average ageof thecod, but the averagecatch remains stable over
a wide range of levels of exploitation. The maincause of changes in total catch
is variation in recruitment.
(e) Ages of codcurtght
69. Since the s~awnine fisherv is situated whollv within the 12-mile limit
and since only apart of the mature fish which have spawned and escaped
capture in the spawning fishery return to the non-spawning fishery, it follows
that cod cauaht bv lcelandic vessels tend to be olde; than those cauzht bv the
vessels of otLer ciuntries. The table at Annex 21 to this Memorial shows-that
in 1970 the mean age of cod caught by lcelandic vessels was 6.5 years, com-
pared with 5.2 years for those caught by British vessels. The fish caright by
Icelandic vessels in the non-spawning fishery, however (averaging 4.8 years),
were actually younger than those caught by British vessels.
70. The number of eggs froni the spawning grounds which survive to
become "recruits" to the fish stock varies largely from year to year. This
variation in year class strength is caused by differences in the conditions
encountered by the very vulnerable eggs and cod fry during the period of
drift away from the spawning ground 1.This has an important consequential
effect on catches but in general changes in natural conditions have very little
subsequent effect on the nuinber of fish in the stock once they have safely
completed the first year of life: a proportion die each year but niass mortality
through starvation or adverse teniperature conditions is unknown.
71. Within wide limits, the number of younç fish recruited to the fishery
does not deoend uDon the number of fish soawnina. Each soawnine female
~ ~~ . ~ - - -
prodiices upwards of one million eggs but the number of eggs surviving to
become yearlings is limited by the amount of ulankton and other food capable
of absorption by fry which is available on the route. Only a very small
proportion of the eggs which start on the journey reach the end of it. Since
the food supply in any particularyear is limited, the fact that morestart does
not mean that more will arrive. This is illustrated by the fact that, while the
spawning stock immediately after the Second World War was much çreater
than in more recent years, the number of fish recruited was no larger 2.
72. However, if thespawningstock is indefinitcly reduced,theremust come
a point at which recruitnienl is afiected. It is not known what that poirit is for
thelcelandic cod stock or, for that mütter, for any fish stock in the world.
Scientific opinion difïers widely ;is to the point at which account should be
taken of the possibility that further reduction of the spawning stock will
affect recruitment, and many scientists ~nighttakethe view that the lcelandic
spawning stock couldsafely be reduced somewhùt below its present size.
73. The Government of the United Kingdom, however, are ünxious to
"ceee the graph at Annex 22 to ihis Memorial.allow a wide margin of safety and are willing Io agree Io restrictions which
would prevent any further reduction in the size of the spawning stock. For
examole. the limitations on catch imoosed on the United Kinedom bv the
couri in its Order Indicating 1nterim'~easures of Protection inthe present
case, and on the Federal Repuhlic of Germany in the case brought by that
country, have heen more than adequate for this purpose.
74. One of the results of the 42-mile exclusive fisheries limit granted Io
lceland under the Exchange of Notes of 1961 1 was IO create a conflict of
interest between Iceland. as the sole ex~loiter of the sorine soawnine fisherv.
and the other States who were thereaftér confined tothefi;he;y for non-spaw:
ning cod outside the limit throughout the year. 11is in the interests of both
that enough fish should soawn to maintain the oooulation but. since lcelandic
\,esselsraïch mlitiire fish'iii the SVdWningground; before thry ,pawn. il is in
the interest of Icrl~nd that the grc.#tesi possible numbcr olp;iuners should
arrive on the spawning grounds irrespective of the number required to main-
tain the population.
75. This is a conflict which can he resolved by agreement between the
oarties. The United Kingdom has no obiection to lcelandic fishermen killinrr
mature fish which are jüst about 10 spa&n, provided that enough are left 10
maintain the population. Nor has the United Kingdom in principle any
objection, should it prove necessary, to accepting by agreement restrictions
on her own catch in order not only to assure a sufficient spawning stock to
maintain the population but also Io assure a sufficient surplus of spawners Io
orovide the lcelanders with a reasonable catch.
76. So far, however, the prohlem of maintaining a sufficient spawning
stock has no1 arisen. Over the years the proportion of mature fish arriving
on the s~awnina grounds which have been killed before soawnine has risen
to 45 pe.rcent. <fihh-l~lO)~ but. derpite thi5. there is no'cviden; thxi the
rcinsintng ipli!r ners hnvcït dny tiiiie beeii inrutliacntd m;iiiiiJin recriiitnicnt
al a satisfactory rate
(g) Olherfish
77: Species other than cod contribute 42.8 per cent. 3 of the catch of de-
mersal fish in the lceland area but only 24.1 percent. (1971) of the United
Kingdom catch. Haddock, saithe, redfish and plaice are the most important
of these, providing 18.9 per cent. of the United Kingdom catch of al1 de-
mersal species 4.Saithe and redfish are found al1round lceland but, since the
fish concerned are not wholly of lcelandic origin, it is no1 possible to estimate
the effect of fishina at lceland on the size of stocks. Plaice and haddock are
also found al1 round lceland but mainly on the West and north-west coasts.
These originale from spawning grounds within the 12-mile limit off south-
Westlceland and the condition of the stocks is largelv determined bv lcelandic
fishing within that zone. The plaice stock is al-a ~atisfactory leGe1but the
1 Annex A to the Application lnstituting Proceedings.
2 By calculalion from table13 to theReporl of rheICESIICNAF Workin~Grotip on
CodSfocksin rheNorrhAilanrie (ICES C.M. 1972lF: 4).acopy of which will becom-
inunicatedto the Registrarof the Court in accordancewith Article 43 (1)of the Rules
of Court.
3 Bulleiiq srarisriqitedespêchemaririines1971(advancereleasc):no1yet published.
4 United Kingdom Sea FisheriesStatisticalTables. 1971,table 68; a co~yof these
tableswill becommunicatedto the Registrar in accordanccwith Article 43 (1) of the
Rulesof Court. MEMORIAL ON THE MERLTS 293
haddock stock has dwindled since 1960 owing to reduced supplies of young
fish. Non-Icelandic fishermen have taken rather less than one-third of the
haddock catch in recent vears 1. This indicates that thev cannot be res~onsibie
for the decline, but 'iti; not certain whether if has Geencaused by'adverse
natural conditions. by a weak spawning stock or by the etïects of lcelandic
fishing for other specieson inshore nursery grounds.
Conservation Measirres-National or International
(a) Inrroducrion
78. It has been asserted by the Government of Iceland that exclusive
control by Iceland of fishing on the high seas up ta a distance of 50 miles
from her Coast ir necessary because effective conservation measures can
only be taken by the coastal State; international measures of control, they
allege, will prove ineffective. There is no evidence at al1 that this is sa. Spea-
king generally, past experience does not suggest that conservation measures
taken by single States have proved more effective than those taken by inter-
national agreement.
(b) Theview of the FA0
79. This question was considered in a report entitled Review of thr Srarirs
ofsome Heavily ExploifedFish Stocks 2prepared by the Food and Agriculture
Organization of the United Nations and presented ta the United Nations
Committee on the Peaceful Uses of the Seabed, etc., on 20 March 1973.This
report, afterreviewing the present status of the major fish stocks of the world
(and describing the Icelandcod stock as"fully exploited" butnot "depleted")
States(para. 83):
"Although niany stocks are now heavily exploited, the number that
are actually depleted, in the sense that their productivity has been
significantly reduced, issmall."
and continues:
"84. There appears to be little relation between the successor other-
wise of management actions and the type ofjurisdiction within which the
resource lies. There are, for instance, at least as many examples of
depleted resources which were under the control of a single country
(e.g., the sardine off Soiith Africa)as of those occurring outside national
jurisdiction (e.g., Antarctic whales, though other depleted whale stocks,
such as sperm whales off western South America, have been mainly
hunted within national jurisdiction)."
80. In the caseof the Iceland area the existence of the North-East Atlantic
Fisheries Commission, with adcquate technical resources for monitoring
the stocks and adeqiiate powers ta introduce any conservation measures
which may be found necessary, makes conditions for international control
1 [CES Report of North-Wcstcrn Working Croup, 1970,table 20: a copy of this
report willbecommunicatedto the Registrarin accordancewith Article 43 (1) of the
Rulcsof Court.
2 FA0 FishcricsCirciilar No. 313, FLO/C/313:a copy of this report will be com-
municatedta the Registrarin accordancewith Article 43 (1)ofthe Rulesof Courf.294 FISHERIES JURISDICTION
particularly favourable. Accordingly, while the Government of the United
Kinedom recoenize the international imoortance of the conservation and
effe&veexploi&tion ofthesefish stocks as a source of food, they are confident
that any necessary measures can be taken by international agreement.
(c) Thegroivthof internatio~rac l onservationin rheNorth Atlantic
81. lndeed there has. in verv recent vears. been a strone movement
-
isa;~rdj ~!itcrn:iti~in~l io~ttr,>l oiti,hihy~~t.'h-qu<>tiii in the N<>rth Atldnti~
The Sorth-\\'c\t ,\tlanti; ti-hcrtc\ arc c,)ntrdllr.Jb!. the Intcrndtion:il Corti-
n~i~~~,>l'nc~rthe Sorth .\tI:~aitt1.1stier.ctl( SPIFI. 15 shonn ln the nid" dt
Annex 28 to this Memorial, catch-quotas for many kinds of fish (including
cod) are already in force in most of the divisions of four out of the five sub-
areas (Areas Nos. 2-5) i.Iceland. which. like the United Kinadom- isa member
01' l('S .\F ,d, qit,>t~x111b cul di the 1l d~\i~tdns ;ttl'r.ctcd ln ad.l~t~g>n. atch-
iIii<it.~lh:~\eher.ri acrecd' in s niiniher <if dtticr ICNAF div.siunr ;x\inJic.iicd
on thdi 11i:ip I hew q~,t;is sre diie td .'onle intil eiTe;t in 1974. ,\Il the ICNAF
qui,ta, .,llori f<>r10 pcr Lent. prcfcrcri;e tu the cl>,tal Stritç.
32. Iri the North-r~it Aildnti~ :trc:t t\vhicli incliidcjIcclindJ. \hile dthcr
internationally agreed methods of control are in force 3, the introduction of
catch-quotas is at present frustrated by the refusal of the Government of
lceland to ratify the activation of Article 7 (2) of the North-East Atlantic
Fisheries Convention 4. However. in ICES reaions 1. Ila. and Ilb within the
St AI:('arcss i~hciitcofç;~tch-liiii~tati<inhx, hccn agrr'r.4 h) delegaie\ <ii the
three cot111tr1eschieily con<crne.i-the L ri.ic<l Kingd<ini. tlic Soviet Lr,!on
and Sorndv >. ln .l~vt.i,~n, \'hl aruJ\ h? tidroe~l cdt:h~.i~~~~I.~t~~@~r~~t>no,.tl.
are under negotiation between the ~ove;nments of the United Kingdom,
Denmark and other interested States 6.In addition, at its I lth meeting in
1973. NEAFC initiated an examination of flatfish stocks in the North Sea
(corresponding approximately to lCES Area IV) in preparation for catch-
limitation measures 7.Quotas are also being proposed for herring and other
stocks.
(d) Tlzecaseofrhe Atlanro-Scandianherrirrr
83. In connection with the need for international control, and the inade-
quacy of relying on the coastal State alone, it is necessary to draw attention
to the fact that lceland has herself recently been involved in one of the worst
cases of overfishing of which records are available-that of the Atlanto-
1 ICNAF Annual Praceedings, Vol. 22, 1971-1972,Part II, Appendix IV, pp. 45,
elseq.: acopyof ihisdocument will be carnmunicated ta the Registrar under Article43
(1) of the Rulesof Court.
2 At the 23rd annual meeting of ICNAF, Capenhagen,June 1973:praceedings no1
yet published.
3 Seepara. 103below.
4 See para. 98 below.
5 NEAFC. Sumrnarv Record for 7th Session of Ilth Meetins-.NC 11.195.7th
Session),pp.2-3: a coiy of this record will be comrnunicatcd 10 the Registrar undcr
Article 43 (1) of the Rules of Court. This isadraft record, subject to amendment.
6 NEAFC. S~immarv Record for 8th Session of Ilth Meetine (NC 1111-..8th
Session), p. 1: a copy-of this record will be con~municatedto the ~egistrar under
Article 43 (1)of the Rules of Court. This is a draft record, subject to amendment.
7 Ibid.,pp. 3-6. MEMORIAL ON THE MERITS 295
Scandian herring. The Atlanto-Scandian herring stock had for centuries
provided a valuable fishery for the drift-net and purse-seine fishermen of
Iceland. Norwav and Russia. The United Kingdom did not oarticioate in
this fishery a1any time. In about 1960 technological improveménts in.purse-
seine fishing, developed entirely by Icelandic fishermen, greatly increased the
efficiencv of the fleet and the conseauential increase in catches led to a ranid
stock become large through gOod recruitment led to catches of 1 million
tons in each of these years. Sincc that time the effect of fishing and poorer
recruitment has caused the stock to dwindle and the fishery for adult herring
has ceased to exist. Reeolations have now been imnosed bv the countries
involved but the spawning stock remains extreinely small and there hiis been
no significant recruitment of young herring which could restore the fishery
in the foreseeable future
84. In this slaughter lceland played a prominent role. Indeed, as far as the
lceland area is coiicerned lcelandic vessels caught on average over 80 per
cent. of the herrings in this oeriod. With these catches and those from sea
areas adjoining th; lceland ared the lcelandic fishing fleet extern~inated al-
rnost single-handed the lcelandic spawning stock 1.This being so, it is some-
what surprising to find that the pamphlet entitled Icrlotrdand the Lnii of the
Sro published by the Governnient of lceland in 1972 2states (at p. 19)under
the heading "The Need for Conservation":
"As an indication of overfishing in lcelandic waters il may be pointed
out that the herring catch by lceland dropped from 763,000 tons in 1965
Io 50,700 tons in 1970. . ."
and later continues (on the same page):
"The significance for the lcelandic economy of the harni already done
to the herring and haddock stocks in lcelandic waters can pcrhaps best
be understood in light of the fdct that only five years ago the herring catch
constituted niore than 50% of the total catch of al1 species by the Ice-
landers whereas now that half, the herring, has been almost done away
with. This is seen by the fact that in 1965 the total catch of al1 species
caught by the lcelanders was 1,199,000 tons of which herring was
763,000 tons, but in 1970 the total catch of al1species by lcelanders was
732,800 tons of which herring was only 50,700 tons."
85.. What the Government of lceland failed to draw to the attention of the
readers ofthat amo oh leit that this disastrous oiece of overfishing was almost
entirely carried oui, as far as the lceland aies is concerned, by lcelandic
vessels. British vesselsplayed no part at all. The actual figures as recorded in
the Btdletiir stalisfiqi,e des pêchesntaririmeare set out in tables in Annexes
23 and 24 of this Memorial and are illustrated in the graph in Annex 25. They
show a rapid rise in the lcelandic catch froni 136,400tons in 1960, when the
new methods were introduced, to a maximum of 590,000 tons in 1965,
followed by a rapid decline to 27,600 tons by 1968.They also show that prac-
tically the whole catch was taken by Icelandic vessels.
86. The decline was not entirely due Io the efforts of the lcelandic fisher-
Seethe tablesand graph in Annexes23-25 to this Mernorial.
2 A copyof Ihispamphletwill be communicated Iothe Registrarin accordancewith
Article43 (1) of the Rulesof Court.296 FISHERIESIURISDICTION
men. The herring which are caught in the lcelandic area are a mixture con-
sisting partly offish which are siawned off the coast of lceland and partly
of fish which are spawned off the coast of Norway. Part of the decline was
due to a reduction of the stock of Norwegian spawned herrings over the same
period. But therole of Iceland in the destruction of the largestocks of herring
which spawn off the coast of lceland itself was even more marked. These
herrings do not gofarfrom Iceland and those caught are taken almost entirely
in or near to the lceland area (Va). The ICES Working Group on Atlanto-
Scandian Herring under the chairmanship of the distinguished lcelandic
biologist J. Jakobsson collected figures for the total catch of lcelandic herring
(Le., herring spawning off the coast of Iceland) taken by Icelandic and
Norwegian fleets, of which the great majorify were in fact taken by lcelandic
vessels. These show an increase from 146,300 tons in 1960 to a maximum of
373,100 tons in 1962 followed by a decline to 79,400 tons in 1966 and 16,300
tons in 1970 1.
87. Thus, while lceland played a large part in the destruction of the
Atlanto-Scandian herrine as a whole. it was Icelandic vessels almost alone
uhich did ihc Janiasc a.;'isr a, con:c;ns thcherring spauned ott the lceland
cod\i iticlf. ,\ccnrdingly. uhilc the Uniicd Kincdom as~c~ts that lieland
bitterly regrets her miitake and has taken measures of conservation with a
view to repairing the damage (though so far without success), the case of the
herring is not an example of the desirability, for which the Government of
lceland appear to contend, of leaving conservation to the coastal State.
Inrernarional Controlof Fishingin theIcelandArea
(a) Introduction
88. International control of fishing in the Iceland area is no new thing
and, though the pressure of modern conditions may require stricter control
than has served in the past, part, at least, of the codit for the remarkably
stable pattern of fishing since 1953 2 must be given to these earliermeasures of
international control.
(b) Themachineryofconfrol
(1) The Inrernational Convention for the Regulation of the Meshes of
fishing Nets andthe SizeLimits ofFish of1937 3
89. This was the first international convention for the regulation of
methods of fishing (as opposed to fishing limits) which extended to the
lceland area. There were nine Contractine Gover-~en~s. inclu,ine~ ~ ~ ~d.
Germany and the United ~ingdom. The Convention imposed a minimum
mesh for the lceland area of 70 mm. and also imposed minimum sizes for
fish-that for cod being 24 cm.-and provided foÏ the setting up of a Per-
-manent,Commission. Though substantiallyoperated by the United Kingdom
1 lCES Co-operative Research Repart (1972).Series A, No. 30, table 20, p. 24:
seethe table at Annex 26 to ihis Mcmorial and the graph at Annex 27.
2 Seethe figureset out in the table al Annex 1tothis Memorialand illustratedon
the graph atlnnex 19.
3 HM Stationery Office,MisrellaneourNo. 5 (1937). Cmnd. 5494; Hudson, Inter-
nationolLegisl<itio no,l.VI1(1935.1937).p. 642. hlEMORlALONTHEMERITS 297
as far as concerned British vessels, this Convention never became effective
becauseof lack of ratification before the Second World War brokeout 1.
(2) The Conventionforthe Regrilarionof the Meshesof FishingNets and
the SizeLimits of Fish of1946 2
90. At the "Overfishing Conference" held in London in 1946, which was
lareelv concerned with the oroblcms of the North Sea.a new Convention was
enf%:d into for the ~or;h Atlantic. including Icrland. This Conveniion
iihich replxced the Con\cntion of 1937.and Lame inti) force on 15April 1953,
increased the rnesh Iimit for the Icel~nd are3 ta 1IOnini.. and the six Iimit in
the case of cod 1030 cm. A Permanent Commission was set up.
(3) TheNorrh-EastAllonlic Fisheries Conventioo nf1959 3
91. Fishing in the lceland area is now regulated under the North-East
Atlantic Fisheries Convention, signed in London on 24 July 1959.This Con-
vention, which introduced a far wider range of conservation measures, was
ratified by the United Kingdom on 27 August 1959, and came into force on
27 June 1963. The text is set out in full at Annex F to the Application in-
stituting proceedings. The preamble to the Convention recites that:
"The States Parties to this Convention
Desiring to ensure the conservation of the fish stocks and the rational
exploitation of the fisheries of the North-East Atlantic Ocean and adja-
cent waters, which are of coinmon concern to them;
Have agreed as follows:"
92. The area covered by the Convention corresponds to the ICES area as
shown on the map at Annex 28 ti>this Memorial. The lceland area is marked
Va. The 14 Contracting States include lceland and the United Kingdom,
together with al1the other States whose vesselsfish to any extent in the lceland
area.
93. Article 3 of the Convention establishes a permanent North-East
Atlantic Fisheries Commjssion (NEAFC), consisting of representatives of al1
the Contracting States, with headquarters in London. This Commission
succeeded the much less powerfiil Permanent Commission set up under the
Convention of 19464 which ceased Io have effect on the coming into force
of the Convention of 1959. Article 6 provides that it shall be the duty of the
Commission:
"(a) to keep under review the fisheries in the Convention area;
/hl 10consider. in the l-eht of the technical information available. what
measures may be requircd for the conservation of the fish stocks and
for the rational exploitation of the fisheries in the area;
(c) to consider, at the request of any Contracting State, representations
made to it by a State which is not a party to this Convention for the
opening of negotiiitions on the conservation of fish stocks in the
Convention area or any part thereof: and
1 BYBlL 1944,p. 106.
2 231 UNTS, 199.
3 486 UNTS, 157.
Gee para.90 above. (d) Io make to Contracting States recommendations, based as far as
practicable on the results of scientific research and investigation,
with regard Io any of the measures set out in Article 7 of this
Convention."
94. Provision is also made for Regional Comniittees to perform these
functions in respect of the Regions into which the area is divided. The lceland
area fornis r art of the northern Reeion (No. 1) .oe-ther with the Faroes. E.st
Greenland and the North-East ~rctic 1.'
95. The Conimission is advised on scientific questions of fish conservation
by the lntcrnational Council for the Exploration of the Sea (ICES). This
organization, founded in 1903, has ils headquarters at Charlottenlund in
Denniark. It collates fishing statistics froni fishing nations. including al1 the
iiienibcrs of NEAFC. and ~ublished the annual Bi~llcri~srrarisri~~rc ,elesoéches
n~aririnlrswhich is regarded as the main authoritative sourcé of suih sta-
tistics. It carries out reviews of particular stocks for NEAFC and in particular
has carried out reviews of the cod stocks in the North Atlantic (incloding
those of the lceland Area-more recently in 1965. 1967. 1968, 1970 and
1972). These reviews, based upon statistics of the amount of fishing, the
quantilies landed and an aee census of the fish cauaht. toeether with ancillarv
&ila. cndblc cjtinistï~ ts be iiilidc <if thc 517cutk rero~irce and the r.iiei)'f
fishing(i.c.. thr. pcr.xntase of thï .tiick rïniovcd ex'h )clirl 2nd the cvaliiation
of management strategies and particular conservation proposais.
96. Article 7 (1) of the Convention provides that:
"The measures relatinç Io the objectives and purposes of this Con-
vention which the Commission and Regional Committees may consider,
and on which the Commission niay niake reconimendations to the
Contracting States. are
Co) any measures for the regulation of the size of riiesh of fishing nets;
(b) any measures for the regulation of the size limits of fish that may be
retained on board vessels,or landcd, or exoosed or offered for sale:
(c. ans iiiciiriircCarthe e,t.,hlishiiicntnf cli,\ed \e>s.~ns;
1, :III~iiic;i,iirfor tlxc cjtahli~hnir.nt ofcl,><cd lire:)>;
(e) any measuresfor 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 trans-
plantation of organisms and the transplantation of young."
As a result of reviews made by ICES, the Commission has recomniended Io
the Contracting States, and the Contracting States have accepted and
imoosed on their fishine vessels. various conservation measures of the tvoe
deicribed in Article 7(1) of ihe Conventioii, naniely. measures for 'the
regulation of the size of mesh of fishina netsz, for the minimum size of fish
Io be landedz. and for the establishment of closed areas and seasons. Of
these, the mesh and size regulations apply to the lceland area 3.
Secihc map al Annex 28 Io this Mernorial.
2 Scepara. 103 below.
3 For the recomn~endatians now in force, secthe lis1issucdby the Commission of
current recorninendationragreedby the Commission up to and including ils10th
Meeting: a copy or thislis1 wilbecammuniwted ta the Registrarin accordancewith
Article 43 (1) of the Rulesof Court. MEMORIAL ON THE MERITS 299
97. No measures for regulating catch have yet been recommended in the
lceland area or elsewhere but, by Article 7 (2) of the Convention, power to
recommend measuresfor regulating the aniount of total catch, or the amount
of fishing efTort in any period, may be added Io the Commission's existing
powers undet Article 7 (1) on a proposal adopted by not less than a two-
thirds niajority of the Delegations present and voting and subsequently
a~~e~.e~-hv .11Contractine States in accordance with their resoective con-
siiti.tion;tlIiruccJ.~rci Siicli * prop~i\il cnipovcring the Coniiniirioii IO
rccuti~iiieiid iiie;irure\ %>'oih :unir01 iiJ elT<)rt-lii1iii:itiii.i<iiiiai~iitiiiiiily
adonted bv the Cominission (includinrr. of course. the lcelandic dele~ation)
at ÏAe~th'~eeting in 1970. ~his recoininendation has now been accepted b;
al1the Contracting States except Iceland.
98. Iceland's refusal 10 activate section 7 (2) was no1 announced until the
NEAFC meeting in London in May 1973.At the prcvious NEAFC meeting in
London on 9 May 1972,the lcelandic delegalion had said that:
"as nientioned al the special meeting [of NEAFC] at the level of Mi-
nisters in Moscow [on 15 December 19711.lceland u,as now prepared
to ac'cep the activation of Article 7 (2). Formal notification would be
sent to the Secretariat 1."
No such notification was, however, received by the Secretariat and. at the
I lth NEAFC nieetinç in London on 9 May 1973, the lcelandic delegate
without warning reported that:
"on ac~~unt of the extension of lcelandic limits to 50 miles and the
scti~ities t~i\iinic cuiinlrie, utthln the Ilnii. the Icel;iiidi; C;overn~iient
hlid rcc~iii\idere.l the p<isitii>iiand Ii.iJ drc.dcd to polinone the ;tivütioii
~ ~
of Article 7 (2)."
In reply to a qiiestion from the President, the lcelandic delegate explained
that:
"he was unable 10 say when his Governnient woiild ratify Article 7 (2)
powers. The lcelandic Governnient believed that coastal States had
prime responsibility to manage and prior rights 10 use marine resources
off their coasts. Catch quotas appeared to conflict with these rights and
the probleni would be raised ai next year's Law of the Sea Conference
which was the only fbrum for discussion of il. It would be very difficult
for lceland to accept a catch quota system which did not harmonize
with its policy in regard to fishery limits 2."
The lcelandic delegate was asked whether lceland would consider ratifying
the Article with a reservation on its application Io lcelandic waters but later
stated 3 that he had telephoned his Government but had 10 report that the
Government of lceland remained opposed in principle to activation of
Article 7 (2) of the Convention in any circunistances. This decision was no1
10 be altered. He added, however, that his Government would continue to
respect measuresagreed outside the framework of the Commission.
1 NEAFC, Summary Recordfor 3rd Sessionof 10th Mccting (NC 10/175, 3rd
Scrsion). p.7: acopy ofthisrecord will beconinii~nicated IO theRegistrarinaccordance
with Article 43 (1)of theRulesof Criurt.
2 NEAFC, S:inimary Record for 2nd Sessionof 1 lth Mceting (NC 11/195,2nd
Session)p, .1:a copyof ihis recordwill beconiniunicatedto thc Registrarin accordance
with Article 43 (1)of the Ruler of Court. This isa draft record,subjcct Ioamendment.
3 lbid.,p. 7. 99. The Commission later approved the following resolution by nine votes
to none, with four delegations abstaining and one delegation taking no part
in the voting:
"The Commission
-Sororu the deci<ion of the Icelandic Go!ernment no1 to ïccept the
prripos~l of thc Coi~~iiiissi<inthdiIIshoi~ld beeiiiporrçred to rccummend
measures concerninci limitation of catch and elfort:
-Reca/litt~ fhar at the meeting of the Commission at Ministerial level
in Moscow in December 1971, the Ministers of al1 Contracting States
defined the s...dv im~lementation of this o.ooo.al bv al1 member
States as the primary task of the Commission;
-Coiisiders fhat this decision not to approve the proposal will have
the regrettable and damaging result of depriving the Commission of
powers which are indispensable to the efïective performance of ils
responsibilities;
-E.rpresses rhe hope rhar the lcelandic Covernment will soon recon-
sider the decision. and
-Invires the other Contracting States Io consider as a matter of
urgency whar steps may be taken in the medntinie Io remedy this
deficiency in the Commission's powers 1."
100. Accordingly, but for this sudden volte-face by the Covernment of
Iceland, the Comniission would now have power Io recommend measures for
regulating total catch or fishing effort in any part of the North-East Atlantic,
including the lceland area, if it considered on scientific evidence that such
measures were necessary. The result of the Government of Iceland's belated
refusal has been to force the other Contracting States to starl again and seek
other methods of regulating catch or effort even in those NEAFC regions in
which Iceland has no interest at all.
101. Under Article 8 of the Convention the Contracting States undertake
to give effect to any recommendation niade by the Commission under Article
7 and adopted by not less than a two-thirds majority of the Delegalions
present and voting, with a proviso that any Contracting Stdte may within 90
days object Io the recommendation in which case il will not be binding on
that State or other States who thereafter give notice within a further limited
ueriod. The United Kinadom would certainlv accent anv recommendation
hhich the Commission m-ight make on scientihc evi<ienceas to the limitation
of catch or fishing effort in the lceland area, though the Government of the
United Kinrrdom at Dresent consider that limitations on catch are a more
enèctive niethod of knservation than limitations on efirt and would urge
this view on the Commission. Nor is there any reason to suppose that the
other Contracting States u-ould not acceut and enforce such a recommen-
dation. ~otwithstandin~ the refusal of lceland to activate Article 7 (2), the
United Kingdom reniains ready and willing to negotiate measures of catch-
limitation 2.
102. Article 13 (3) of the Convention provides for measures of national
control in the territories of the Contracting States and national and inter-
national nieasures of controlon the high seasfor the purpose ofensuring the
1 NEAFC. I lth Meeting. Conclusionsand Recommcndations(NC 11/204).p. 4:
a copy ofthis document willbe cornrnunicatedto the Rcgisirar in accordancewith
Articlc 43 (1) of the Ruler of Court. This ira draft record, subjectto amendment.
2 Sec para. 124bclow. MEMORIALON THE MERITS 301
anolication of the Convention and the measures in force thereunder. A
scheme of joint enfurcement to -,hich 13 Contracting States. including
Iceland and the United Kingdom, rire parties wds made under ihis article in
1969and came into force as from 1~uly 1971 1.
103. The regulations as ta mesh and sizeof fish in the lceland area imposed
under the Convention of 19462 have been made more stringent by NEAFC.
At present the limits in respect of the lceland area are:
Typeof net Appropriare
widrh
Seine net .................. 110 mm.
Such part of any trawl net as is made of Cotton,
hemp, polyamide fibres or polyester fibres ... 120 mm. '
Such part of any trawl as is made ofany other ma-
terial .................... 130 mm.
There are also further restrictions on devices obstructing nets and on size of
fish, the minimum for cod now being 34 cm.
(d) Regulariotrby NEAFC-orher proposedmeasures
104. Since the coming into force of the North-East Atlantic Fisheries
Convention the United Kingdom has constantly expressed ilself willing fo
collaborate in anv conservation measures or.po.ed bv lceland which are
supportçd hy scirniific eviJçnce and tu play a full pari in thç scientific in-
vestigation ofany such propossls Iccland hd,. hoircver. with one e\cepiion,
made no concrete proposals for such measures. The only positive proposal
made by lceland(for an area closure) was found on scientific investigation to
be of negligible effec3.
1. IcelandicproposalsroFifi11NEAFC Meeting, 1967
105. At the Fifth NEAFC meeting in 1967 the lcelandic Delegation
orooosed 4that an area ORthe north-east Coastof lceland should be closed Io
ailirawling in the months of July to December for an experimental period of
10years andthat ICES should be asked to study and evaluate the effect of the
nrooosed measures and reoort to the Commission. In a memorandum, the
iceiandic Delegation aIso drew attention ta the need for consideration of the
total problem of liniiting fishing effort in Icelandic waters by, for exailiple, a
a~ot~svstem under which the orioritv oosition of Iceland would be respeîted
in accordance with internatio reCaognired principles regarding the pre-
ferential requirernents of the coÿstal State where the people were overwhel-
minnlv de~endent uoon the resources involved for their livelihood.
166: 1n-introduc& their memorandum the lcelandic Delegation stressed
the crucial importance of the cod fisheries to the lcelandic economy and the
1 A copy of ihis schemwill beconununicatedto the Regisirar in accordancewith
'Article 43 (1) of the Rulesof Court.
2 Sce oara. 90 above.
3 See para. 112below.
4 NEAFC Report of Fifth Meeting, p. 10: a copy of this Report will beconimuni-
cated 10the Registrar in accordancewith Article 43(1) of theRulesof Court.302 FISHERIES JURISDICTION
serious concern felt bv lceland at the de~ ~ ~ of cod stocks in ils waters. Thev
maintained that the Commissions's meîh size provisions were insufficient to
arrest this decline, that increased fishing effort was now producing reduced
landinss. that the mortalitv rate for immature cod was hish and laraelv
attrib'table to fishing and tiat the spawning potential of theitock had bèen
seriously reduced, with consequent adverse effects on recruitment. The
proposed closure would apply in an area where young cod were known to
congregate and grow to maturity before migrating to spawn elsewhere and
where they were extensively fished by foreign trawlers.
107. The Delegation of the United Kingdom stressed the im~ortance of
the catch off lceknd for the United ~in~dim fishing industry. ~hey shared
the lcelandic concern for the stocks but doubted whether the proposed
closure, which they considered Io be discriminatory in that it ao~lied to
trawling but no1 other methods of fishing,would produce results which could
be demonstrated in subsequent catches and which would lead to a significant
increase in the spawning stock: they were not convinced of the existence of a
stock/recruitment relationship in lcelandic cod. They considered that the
Icelandic proposal could not be accepted until the whole question of how
best to conserve the stocks had been studied closely but they said that they
would be glad to co-operate in such a study.
108. Other Delegations expressed sympathy for the Icelandic position but
considered that further scientific investigation was necessary and suggested
that this could be entrusted to ICES. The United Kingdom Delegation
pointed out that administrative as well as scientific considerations were in-
volved, particularly in view of the suggestion in the Icelandic memorandum
that wider forms of fishery management might be necessary, and they
suggested that the matter might be examined by a working group upon
which both scientists and administrators would be represented. After further
consultation, the Commission unanimously passed thefollowing resolution:
"The Commission, after considering the proposals put forward by the
Icelandic Delegation for the closure to trawling of an area off theNorth-
East Coast of lceland and the observations &de by other Delegations
recommends:
(i) that a working group be set up consisting of representatives of the
Federal Republic of Germany, Iceland, Norway, the USSR and
the United Kingdom to consider the lcelandic proposal and any
modification of it that mdy appear desirable, and report to the
Sixth Meeting of the Commission;
(ii) that ICES should be invited to send a reprerentative to meetings of
the group;
(iii) that members of the group should consist of both administrators
and scientists;
(iv) that the Icelandic Government should be invited to convene the
first meeting of thegroup."
2. The Sixth NEAFC Meefing, 1968
109. At the Sixth NEAFC meeting1 held in May 1968 the Commission
considered the report of the working group set up in accordance with the
1 NEAFC, Repart of SixthMeeting,p. 10:a copy of this Report wilbe communi-
cated to the Registrar in accordancewithArtic43 (1)of the Ruleof Court. MEMORIAL ON THE MERITS 303
resolution passed at the Fifth Meeting to consider the proposal of the
Delegation of lceland that an area off the north-east coast of lceland should
be closed to trawling during certain months of the year, for an experiinental
period. The working group reported that it had examined the proposal in the
light of information made available by its scientific advisers who had con-
sidered the orooosed ban in the light of the 1965 Reoort of the North-
. .
\Ve,icrn M'orLins <;ri>up anJ oihcr ~vail:ihle iiiioriiiiti.in Il rr:<>ninicnJcJ
tliüii~rthcr rcsc:ir~ti shodld hc i.i,ilcrtüken on the rilc ind age ;~>nipojitioii
of the stocks and their seasonal distribution within the orooosed area of
closure and on the origin of recruitment from different areas to the lcelandic
spawning stock. It also recommended that the Commission should give
further consideration to the lcelandic proposal although some members of
the working group had felt that the evidence already available was sufficient
to justify an experimental closure. The Commission also had before il the
advice of the Liaison Committee of ICES.
110. The Delegation of lceland, while recognizing that there were uncer-
tainties in the scientific advice on the need for and efects of the proposed
closure which should be removed byfurther research, nevertheless considered
that the stocks in the area were'endangered and that irnmediate action was
required. They stressed the great dependence of lceland upon its fishing
industrv and out forward the rnodified orooosal that there should be an
recognizing Iceland's deep concern, considered that the modified proposal
wds objectionable in principle. The proposed experimental measure differed
fundainentally from others adopted by the Commission in the past in that it
would be based on inadequate scientific information. Moreover, it would be
discriminatory, since it would affect adversely those countries whicli lished
the immature stocks while benefiting lceland which cüught mature fish within
its fishery limits. There was no certainty that the effects of the proposed
closure could be precisely determined since they would be distributed over
the whole of the lcelandic fishery. There was no clear scientific evidence of an
abnormal decline in the stocks which would justify drastic measures of the
sort proposed. But, recognizing Iceland's concern, the United Kingdom
Delegation reiterated their willingness to co-operate in a constructive
approach to the regulation of fishing intensity in the lcelandic fisheries as a
whole 1. After further consideration, the Delegation of lceland noted that
their proposal did not meet with general approval. They agreed therefore not
to press for an experimental closure, on the understanding that intensive
research into the whole lcelandic fishery would be carried out so that the
Commission inight consider al a later meeting what, if any, conservation
measures would be desirahle. This suggestion was welconled and the Dele-
eations of the countries orinci~allv concerned were reauested to orerare an
. .
;xpproprliie rcrùliiti,~ii
111. The <'omrlit\\isn I.~icr rc\<~l\e.t\follutrs'
"With reference tu the proposal for closure to trawling of an area off
the North-East coart of lceland and to the report of the Reykjavik
Working Croup held in January 1968, the Commission resolves tu
request the International Council for the Exploration of the Seato make
1 NEAFC, SummaryRecordfor 8th Sessionof 6th Meeting(NC 6/90,8th Session),
p. II:a copy of this recordwill becammunicatedto the Registrar in accordancewith
Article 43(1)of the Rulesof Court. MEMORIAL ON THE MERITS 305
division of opinion in Iceland. Thcy 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 lceland had a right to expand its fisheries more than
otliers. Its dependence was illustrated by the fact that the 1967 and 1968
failure of the herrine fisheries had led to a fall in its eross national ~roduct
of about 17 per centr~hey alleged that the measuremeot of British efforthad
been faulty and that increased mobility of distant water fleets madethe situa-
tion precaiious and a remedy urgent 1.
114. After further discussion the Commission passed the following re-
solution:
"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;
Appreciating lcelandic concern regarding the effects that might arise
from an expansion of effort due ta the redeployment of fishing fromother
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;
Reqitesrs ICES, through the Liaison Committee, to provide such fur-
t~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~~ion as mav hecome available from this studv: and . .
Resolvrs that, at the next meeting of the Commission, or as soon as the
additional information becomes available, Regional Committee 1should
give further consideration to the need for additional measures to regulate
thecod and haddock fisheries at Iceland, in the context of the position in
the North Atlantic as a whole 2."
115. Accordingly, it is clear that at that stage (May 1971) not only was
there no scientificevidence that the cod stock was in dangerbut lceland was
not itself alleging any such danger. It was merely expressing a fear that the
increased mobility of fishing fleets might lead to danger in the future and at
the same time claiming a right ta expand itsfisheries more thanothers. lt is the
United Kingdom's case that that position is suhstantially unchanged today.
116. On 14 July 1971, howevcr, following a general election, the new
Government of lceland announced their intention to extend their exclusive
fisheries limits 3. Since then they have shown less interest in the control of
fishing in the Iceland area by NEAFC.
4. Speciol Meering of Minisfers inDecember 1971
117. A special meeting of NEAFC at the Ministerial level was held at
Moscow in December 1971. Particular stress was laid by the Ministers on the
urgency of measures for limitation of catch and effort in the NEAFC area
generally and of activating Article 7 (2) of the Convention4. The meeting
1 NEAFC, SummaryRecordfor 7thSessionof9th Meeting(NC9/150,7th Session),
pp. 2-3: a copy of ihis record will be cornrnunicatedto the Registrar in accordance
with Article 43 (1)of the Rules ofCourt.
2 NEAFC, 9th Meeting,Conclusionsand Recornmendations(NC91163),Annex C:
a copy of this document will be communicated to theRegistrar in accordance with
Article 43 (1)of the Rulesof Court.
3 Seepara. 17abave.
4 Seeparas. 97-100above.declined to discuss Iceland's claim to a 50-mile fishing limit. The United
Kingdom, however, suggested 1 that al1countries fishing for cod and haddock
in the North-East Atlantic and in the area off lceland (i.e.. in ICES areas 1.
lla, Ilb and Va) should agree at the meeting that during 1972 their catches of
these species be limited to a tonnage not exceeding that caught on average
over the previous ten years. It was stressed that this would be an interim
proposal and that the total catch and its divisions between countries would
need to be considered subsequently in further detail for any permanent
scheme. Although this proposal received some support it was opposed by the
Icelandic delegate on the grounds that it would involve a relatively high
sacrifice of demersal fishing by lceland 2. Iceland, had in fact, achieved ils
highest ever demersal catch the previous year (1970) 3 and no doubt hoped
to increase it still further.
5. TiteIOrh NEAFC Meetirig,1972
118. Two reports were available to the 10th Meeting of NEAFC held in
May 1972. The first 4, from the lCES Liaison Committee, stated that the
Icelandic scientists had submitted more data as to fishingeffort in support of
their case for a clositre of the area off the north-east Coast of Iceland. They
concluded, however 5:
"The new information from lceland indicates ihat in recent years the
lceland catch figures for that area are larger than the figures presented by
Iceland at the Working Group meeting. In the absence of concrete,
detailed Icelandic data the Liaison Committee is not able to reassessthe
effect of a closure."
119. The other report was from the ICESIICNAF Working Group on Cod
Stocks in the North Atlantic 6.This report, 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 con-
clusions 7as to the area as a whole:
"(i) Increasing range and mobility of the Heets fishing for cod in the
North Atlantic has increased their efficiency and their ability to
concentrate on those stocks that happen to be mort productive at a
particular time.
(ii) For virtually al1 the stocks considered the current fishing mortality
han reached the level where further increases in fishing will at best
~roduce verv srnall increasesin vield Der rccruit. and in some stocks
, .
will actually decreasethe yield per recruit.
(iii) There is a orobability that swawning stocks as low, or lower, than
the presen<could lead to a recruitmënt failure and consequently to
1 NEAFC, Summary Record for 3rd Sessionof SpecialMinisterial Meeting (NC
M/7, 3rd Session),p. 6: a copy of this record will becomrnunicatedto the Registrar
in accordancewith Article43 (1)of the Rulesof Court.
2 lbid. p, 16.
3 Seethe table at Annex18Io this Memorial and the graph atAnnex 19.
4 NEAFC, Report of ICES Liaison Committeefor 1972(NC 101165):acopy of this
report will be communicatedtothe Rcgistrarinaccordancewith Article 43 (1) of the
Rulesof Court.
5 Ibid ,ara. 34.
6 ICES CM 1972/F:4; seefootnote to para. 67above.
7 Op. cil.SectionII, para. 1. MEMOR~AL ON THE MERITS 307
a very large drap in total catch. Taking this into account, and ta
someextent theeconomic benefits implied by an improved catch per
unit effort, a desirahle level of fishing mortality (effort) would be
approximately hall the present level. This would no1 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 neriod of five vears.
(\,JThe sanic hencfii coulJ be achie\:ed by a phahcd rcducii<in involving
le\\ iiiirncdiatc dibturbancc io the mich though il ivould take per-
haps ten years Io realize the full benefits.
(vi) Ifihe displaced fishing effort remained fishing and could be rede
ployed on other lightly exploited species-there would he an increase
in the total catch of al1speciesand a less severeimmediate loss."
120. These considerations ao~l. . ..ever. less to the Iceland area than
to other areas. In some areas (cg., West Greenland and' LabradoriNew-
foundland) fishing mortality already exceedswhat is regarded asthe maximum
permissible figure. This is not so itt~thelceland area1.Furthermore, while for
most stocks the catch in 1970 was 20-25 per cent. of the biomass (the total
estimated weight of the stock), il was somewhat lower for the lceland stock
(16 percent.) and inuch higher for the Arcto-Norwegian stock (41 percent.)=.
6. The llrh NEAFC Meeritrg, 1973
121. At this meeting the lcelandic delegation put forward no proposals for
conservation in the lceland area. lnstead they announced their refusal to
support measures for regulation of total catch orfisliing effort in any part of
the NEAFC area 3.
Iceland's Fcarsfor rhe Fisheries
122. The Government of Iceland have, however, expressed a fear that the
denletion of the fish stocks bv intensified fishing by foreign fleets is imminent.
~he point is made explici; in their puhlicGi~n ~isheries Ji,ri~d;crioir in
Iceland4 which, at page 28, States:
"Fishing techniques and catch capacity are rapidly being developed
and about halfof the catch of demersal fish in the lcelandic area has been
taken by foreign trawlers. The danger of intensified foreign fishing in
lcelandic waters is now imminent. The catchcapacity of the distant wSter
fleet of nations fishing in lcelandic waters has reached ominous pro-
portions."
In fact the table at page35 of that document shows that the United Kingdom
has not increased ils fishing capacity over recent years. Those States which
have (e.g., Poland, Spain, the Soviet Union) had not fished ta any extent in
the lceland area up to 1972. Nor have they started to do so since. Further-
more, al1 these States are members of NEAFC and there is no reason to
1 Op. ci!., p. 30, table 10.
2 Op. cil., SectionIII, para.3.1.
3 Sceparas.98-99 above.
4 Enclosure 2 10 Annex H to the Application instituling proceedings.ISee p. 27,
supro.1 suppose they would not honour any restrictions on catch ivhich might be
found necessary as a result of scientific evidence.
123. Nor does the imvrovement in fishina techniaues D.es.nt anv imme-
diate threat in the ce lan area. The non-1ceÏandic countries fishing ihere al1
fish with trawlers. The design of trawls has been virtually unchanged since
1924. Although freezer or factory trawlers are bigger than conGentional
vessels, their catch-rates are about the same as a conventional trawler. The
policy of the United Kingdom fishing industry has been Io scrap two con-
ventional trawlers for each new freezer trawler. There have been imorove-
ments in navigational aids and echo-sounding equipment. Neither is likely
Io make any great impact in the demersal fisheries. Demersal fish location by
echo-sounding equipment has not developed to anything like the extent to
which purse-seiners use their sonar for the detection of pelagic fish. There is
nothing wrong with capturing fish in the most efficient way possible, provided
that the fishin-. is controlled so that the fishine rnortalit. -enerated does not
cxceed .Ilebel uhiih ihc riock c;in stand Tlicrc .ircoh\iuii, e<on,iniic beiiciiii
frdm <;itihiiig the perniis.;ihlc cai<h aith ;tiiiiniiiiiiofcxpcnsc. II i,in xny
case hard to reconcile Iceland's fears of increased fishin~ caDacitv hv other
countries with its own plais in this direction. According to figures supplied to
OECD, six stern-trawlers were added Io the lcelandic fishing fleet during 1972
of which one is of about 1.000 eross re~istered tons and the others from iust
under 500 gross registered ions ;Ojust oier 700 gross registered tons. ~urther-
more lceland has announced that a trawler-building programme comprising
some 35 new vessels of various sizes will be carried out in 1973 and 1974 1.
These new vessels are to replace some 17 old side-trawlers as well as some of
the bigger herring vessels from the 1960s.
The Presenr Position
124. The Government of the United Kingdom conclude from the reports
referred to in paragraphs 118 and 119 above that there is now a scientific case
for the imposition of catch-quotas-though less urgent in the lceland area
than in other areas. They note that in the North-West Atlantic such measures
have been agreed by the members of ICNAF and are in force. They are
, willing to negotiate such catch-limits with lceland and the other countries
concerned. They are willing, in accordance with the Resolution on Special
Situations Relating to Coastal Fisheries of 1958 2. that Iceland should be
given preference in-the allocation of such quotas. ~hey have been attempting
before the inception, and during the pendency, of this,suit to agree such
quotas 3.They deny, however. that it is either necessarv or desirable for the
conservation of the stocks that lceland should have exclusive rights over
them.
C. The Utilization Problern
, 125. It has been suggested by the Government of Iceland that the fact that
Iceland is particularly dependent on fishing for its livelihood is in itself a
1 OECD Draft Review of Fisheries in Member Countries, 1972,Dara. 12, p. 18:over the ten years up to 1970 and, in spite of a relatively high rate of growth in
population, real consumer expenditure per capira increased by 43 per cent.
over this period 1. The corresponding rates of growth in per capita consumer
expenditure in the United States of America and the United Kingdom were
33 per cent. and 19 per cent. respectively, while the average increase for
EFTA countries was 30 percent.
(c) Dependenceonfisheries: Diversification
129. It is a fact that Iceland's prosperity isat present closely linked to the
yearly successes (and failures) of its fishing industry. Fish and fish products
even in 1970 accounted for about 80 percent. of the total value of its exports
and in 1969 fishing and fish processing contributed about 15 percent. of ifs
gross national oroduct 2. Iceland is undoubtedly heavilv.deoe.dent uoon
fisheries as its principal source of foreign exchange earnings, and this Gery
dependence continues to create serious difficulties for the economy of the
countrv. But. no doubt with the dangers of this situation in mind, successive
Cio~cr~iiicnts in I?eldnd have piir\ue~ J p,ilii) of c<uiiunii. Jiveriilic~iion.
As long agd as 1966. even beforc the mdjor c;unumi< blou broughi about by
the colla~sc of the herring li\hrry. Iccland ~J<iptçd definlie nolisic, and riiadc
specific arrangements f& industrial diversification which were considered
major steps forward toward lessening its dependence upon the fishing
industry. These oolicies have been attended with considerable success.
130.-1ccland's peogriphicîl lozation ît3 pvint uhere a hranch of the Gulf
Stre3ni sonizrges with cold Polar ~.iirrc.ntshxs cnilo\rcd thc Lountry with n<it
onls rich lish breedinr grounds but il50 heai,..orc<i.iiativn nhtch hai fairiiisd
the hasis of ahundaithydro-electric power resources. The country is also
situated in an active volcanic belt providing reserves of geothermal power.
Althouah at present Iceland is deoeodent uoon the imoortation of 84 Dercent.
of its total energy requirements'(of which petroleum products acckunt for
by farthe largest share), short and long-term prospects are excellent, for its
princioal natural energy -~serves remain virtually untouched. In broadening
the brise of:is econoniy. lccldnd ij rii~king riivd crrccri\c use ofrheie tivu vas1
rcscrves. With iirÿther Iiniitcd d<inie,iic niirkci (boih with rccpcct t<>Jeni3iid
and .ivi<ildhility of fundr), IcclînJ hjs riahtly iuncentratcJ on aitraciing
those export-orientated industries which flouiish on cheap and abundant
power.
(d) Hydroelecrricpower
131. Iceland's water resources provided it in 1972 with 94 per cent. of its
electricitv reauirements. torether with oracticallv universal central heating.
and an Lcreasing incorke from tourism. It has been estimated that, even at
present levels of technological knowledge, well under 40 per cent. of the
economically exploitable hydroelectric power resources have been tapped 3.
There is sufficient reserve potential to allow the generation of hydro-electric
power at costs well below the economic minima in other countries. With the
National Accounts of OECD countries, 1960.1979:OECD, pp. 39, 59, 191,317;
Main EcooornicIndicators, May 1973:OECD, p.151.
OECD Economic Surveys: "lceland", March 1972, p. 7, table2: a copy of this
surveywillbecommunicatedto theRegistrar under Article43 (1)of the Rulesof Court.
3 op. cit.p. 34. MEMORIAL ON THE MERITS 311
completion of the Burfell project total hydroelectric power potential will have
increased bv over 170 oer cent. Two new olants under construction. on the
~hjorsa-~uignaa and ~rauneyjorfoss riveis, are expected to yield a further
1,700-1.800 million kW.. arid further plans under consideration involve the
building of a new installation of equivalent capacity to the Aswan dam project
and producing the cheapest electricity in the world.
132. In 1966 agreements were made with the Alusuisse (Swiss Aluminium
Comoan. .for the construction of a smelter at Straumsvik. involvine a total
in\eiiinr.nt01.ab<~.t535 iiiillion.Ckporii ,?î sii1clie.i ;iluiiiiniUii~i\ilindk3
siihrtiiriii;ionirihiiti<in 1.)iorcign eh.'h.ingc csrnings. In 1972 crporir of
aluminium represented 16.3 per cent., and manufactured goods in general
represented 21.9 per cent., of the value of al1exports 1.In 1964 there were no
exports of aluminium and exports of manufactured goods in general account-
ed for only 1.5 percent. of the value of total exports 2.
(e) Georhermolpower
133. Geothermal energy could provide, it has been estimated, a power
equivalent to 7 million tons of oil per year but at only one-sixth of the cos1of
oil: the 1969 total fuel oil consumotion was about 0.43 million tons. Exoeri-
mental plants are already producing electricity at prices competitive with
those of existing hydroelectric power installations. Besides providing limitless
enerev for centralheatine andelass-houses (Iceland erows~alarge amount of
hot-iouse fruits, de~~itebeingilose to the Arctic cirile!), geotherma~ power
has heen harnessed for the diatoniite industry at Lake Myvatn. Amongst the
projects now under discussion in lceland is that for a sea-chemicals industry
based on the use of geothermal steam in the Reykjanes area. A proposed
complete project would eventually produce a range of chemical products
including salt, magnesium chloride and magnesium metal. Most of this
project is still at the planning stage, but initial studies on economic feasibility
have been favourahle. The National Research Council, in its assessment of
the oossihilities for new industries. is considerin- develooment of a heavv
iidter plant, also b.iscd on geotherrn~l pouer, a sc.iuecJ-b.irr.d indubtry and
:in oil relinery. Furthcr cApansioii 1saniicipaicd in the produciion of dia-
tomite and fertilizers.
(f) Small-scale indrrsrries
134. Apart from attracting foreign capital to develop power-hungry
industries, Iceland stands to gain considerably through the contribution made
by its smaller-scale traditional industries, in particular skins, wool products,
ceramics and mink farming. Relying totally on local raw materials, theii net
contribution to exports is relatively high. The Industrial Development Fund,
set up when lceland joined EFTA, is providing loans Io finance the expansion
and rationalization of existing industries. Iceland's light industries now make
a variety of products including biscuits, building components, carpets,
clothing, confectionery, furniture, leather goods, margarine, plastics, paint,
shoes, ships, cured skins, soft drinks and textiles.
135. Invisible earnings, led hy tourism, are also making an appreciable
1 SforisricolBullefin,Vol. 42, No. 2, May 1973,p. 21: The Statislical Bureau of
lceland and the Central Bank of Iceland.
2 OECD EconomicSurveys:"Iceland", March 1972,p. 58, table 1 (bycalculation).312 FlSHERlES lURlSDICTlON
contribution: the 'table at Annex 31 to this Memorial shows the relativelv
high per capila receipts in this sector. Invisible earnings, as a whole, approx-
imately doubled over corresponding periods in the years 1969and 1970, and in
1971 transoortation and travel reoiësented over 23 oer cent. of total exoorts
of goods and services. As OECD comments, "thé expected expansiin of
tourism might lead ta particularly good opportunities for Iceland in the next
decade" 1.
Limits on Iceland's Need for More Fish
136. The above description of the lcelandic economy puts the Icelandic
claim ta the fish stocks in a different light from that in which it is customarily
presented. The dependence of Iceland on fishing has diminished and it is the
intention of the Government of lceland that thisdependenceshoulddiminish
still further. This is sound economic policy, but it is hardly compatible with
the imperative need to take the whole of the fish in order to maintain a
reasonable rate of growth.
The Effecr on the United Kingdom Fishing Indusfry
137. The 50-mile limit proposed by Iceland would leave open only an
insignificant part of the fishing grounds in the Iceland area 2.The waters in the
lceland area constitute hy far the most important of the United Kingdom
distant-water fishinggrounds andone of the longest established. British vessels
fish in the Iceland area only for demersal fish 3.Over the period 1967-1971 the
United Kingdom's average annual catch from the Iceland area was about
170,000 metric tons 4. It was valued at an average of £13 million and made up
44 percent. by weight and 49 per cent. by value of al1 United Kingdom dis-
tant-water landings of these species. The landings from the Iceland area have
accounted for 15.4 per cent. by weight and 19.8 per cent. by value, over the
years 1967-1971, of the total laydings of fresh and frozen fish (i.e., al1 the
commercially important demersal and pelagic fish excluding shellfish) hy
British fishing vessels 5.Over the same period the landings by British fishing
vessels from the lceland area accounted for 13.9 percent. by weight and 15.1
per cent. by value of the total United Kingdom supplies of fish from al1
sources 6.
(a) British vessels affected
138. In the 12 months preceding 1 September 1972, a total of 195 British
vessels fished in the lceland area. These came from the ports of Hull, Grimsby,
Fleetwood, North Shields and Aberdeen. Some of these were relatively small
vessels which usually fish closer to the United Kingdom and only visit the
grounds around Iceland from time to time. Others were freezer trawlers-
there are 39 of these in the fleet, of which 23 visited the Iceland area auring
that period-which are also mainly intermittent visitors to the Iceland area,
1 Op. eit.,p.35.
Seethe rnap at Annex 20to this Memorial.
3 See oara. 60above.
Seethe table at Annex 18 to this Memorial.
5 Seethe table at Annex 32to this Mernorial.
6 See the table at Annex 33to this Memorial. MEMORIAL ON THE MERITS 313
having the capacity to stay at sea for long periods and to fish any of the
grounds in the North Atlantic. About 94 percent. by weight of the catch in
1971 was taken by "fresher" trawlers, that is to say, vessels which have no
facilities for freezing fish at seaand are accordingly confined to voyages of not
more than three weeks. The year 1972 was in these respects a normal year,
showing perhaps a slightly higher effort deployed in the Iceland area than in
some recent years. It will thus be seen that, leaving aside those vessels that
do not regularly fish in the Icelaiid area, there remain between 160 and 170
vessels that rely on the Iceland area year by year for al1 or a significant part
of their catch.
(b) Other availablefishinggrounds
139. The demersal fishing grounds within reach of the British fishing fleet
are indicated on the map at Annex 28 to this Memorial. The respective
proportions of the United Kingdom catch contributed by each of these areas
in the years 1967-1971is set out in the tableat Annex.34 to this Memorial.
(c) Opporrmiityof diversion
140. It is not possible for the fishing effort from the Iheland area to be
diverted at economic levels to other fishing grounds. The remaining grounds
in the North-East Arctic (Barents Sea, Norwegian Sea, Bear Island, Spitz-
bergen) are approaching twice the distance away from the United Kingdom,
with harsh (and during long periods of the year extremely harsh) weather and
sea conditions. It is unsafe for trawlers not capable of withstanding such
conditions to operate on these grounds. Catch rates in this area have already
fallen from the high levels recorded in the late 1960sand the ICES Liaison
Committee's report in May 1972 to the 10th Meeting of the North-East
Atlantic Fisheries Commission predicted a continuing fall in catch levels for
1973. The Committee's report to the Commission's meeting in May 1973
pointed out that a sacrifice in catch in coming years could make a significant
contribution to the future size of the spawning stock. In any case, any suh-
stantial diversion to this North-East Arctic area by trawlers (both British
and others) displaced from the Iceland area would still further depress catch
rates below economic levels.
141. There is no prospect of the displaced "fresher" trawlers making up
their loss in catch by fishing the grounds of the North-West Atlantic since the
longer voyage time (roughly two-and-a-half times the distance from Iceland)
would leave them with an unprofitably short period of fishing. In effect, only
freezer trawlers can operate on these distant-water grounds from which the
United Kingdom took a catch of 7,652 tons in 1971. However, these vessels
account for onlv 6 oer cent. of the total United Kingdom catch in the lceland
arcs :ind their~upportunii~es to increahe tIie,r caÏ;her in the North-Wcrt
Ail~niic arc sei,crely Iiiiiited hy xhcntcj of quota Itnittati<in. re~enily ipproved
hs the Iniernlitional Comniissioii for the Sorth-Wert Arldntis tishcries
(ÏCNAF), which became operative from January 1973 in four of the five
sub-areas in10 which the Commission's area is divided. In these sub-areas,
under the present arrangements, the United Kingdom's catch is limited to
just over 24,000 tons and, although there is as yet no limitation in catches in
the remaining sub-area (where the United Kingdom catch was 2,731 tons in
1971). il is evident that increased catches in the North-West Atlantic as a
whole can at the best replace only a small fraction of the catch in the Icelandarea and can offer no solution to the difficulties of the "fresher" trawlers
which constitute the great majority of the vessels which would suffer by
exclusion from lcelandic grounds.
132. Distant-water trawlers displaced from Iceland coiild not profitably
fish on near-water or middle-water grounds. The catch rates per hour in the
North Sea, for example, are only one-sixth of those in the lceland area (one-
third when expressed as catch per day absent from port). Furthermore, these
fisheries are mixed, unlike the essentially single-species grounds in the distant-
ivater regions, and this factor ,vould also seriously jmpairfishingoperations
and their financial returns. These grounds nearer home arein anycase already
fully exploited: any additional effort hy British and other vessels diverted
from the lceland area would reduce catch ~ ~ ~ ~es. further deolete fish stocks
~~. ~~-~~~--
and depress the economic performance of the traditional near-water and
middle-water sectors of the British Reetand, in turn, thecurrent returns of the
British inshore fleet
143. In general, therefore, modern distant-water trawlers, such as are used
by the British fishing fleet in the lceland area, equipped with ex~ensive and
sophisticated technical gear and having inflexihly~high operating costs, could
not, if excluded from the lceland area, hope to gain, let alone sustain, fish
yields which would keep them in business.
(d) Economic conseqilences
144. Given this lack of alternative fishing opporfunity, the exclusion of .
British fishing vessels from the lceland area would have very serious adverse
consequences, with immediate results for the affected vessels and with
damage extending over a wide range of supporting and related industries.
There would very quickly have to be a withdrawal of some vessels from ser-
vice. Most of those vessels now operating at or near the margin of profi-
tahility would have to be withdrawn at once, since they could not operate
profitahlyon any of the grounds open to them. But others would have to
follow and the number of vessels withdrawn would increiise rapidly and
include the more modern vessels as reducing catch rates depressed returns
below operating costs in the areas to which they had been dicerted or might
otherwise be diverted. There is no ready market for second-hand distant-
water trawlers. The scrapping of these vessels would constitute the loss of'a
considerable national asset.
145. Withdrawal of vessels would cause widespread unemployment
amongst al1sectors of the British fishing industry. At present there are about
18,000 fishermen in the United Kingdom: of these approximately 3,500 are
employed on the 160-170 vessels referred to in paragraph 138 above as
fishing regularly in the Iceland area. In addition it is estimated that a further
40.000-50.000 workers draw their livine from-the ancillarv~ ~dustries (ex.. . -.
shiphuilding and repairing, packing, transport and marketing). Three ports-
Hull, Grimsby and Fleetwood-are esuecially reliant on the Iceland area.
which accounted for 49.6 oer .en~.~ ~ ~.~oer cent. and ~ ~ ~9.2 oer cent. resoec:
tively of landings at these ports in 1971 1 At Hull alone it [s estimated ihat
7,000 workers (other than fishermen) derive their livelihood directly from the
fishing industry. The problem would he made worse because the resultant
unemployment would occur in those areas (Humberside and West Lancashire)
1SeeAnnex 35 tothis Mernorial. MEMORIAL ON THE MERITS 315
where there is a severe shortage of work and little scope for alternative em-
ployment: neither are the specialized skills of fishermen app~ ~ria~e to work
on shore.
146. Furthermore, to the limited extent that vessels displaced from the
Iceland area could be redeployed in near-water and middle-water areas, the
consequent reduction in the catch rate referred to above would affect the
profitability of the vessels already fishing there and in turn force the more
economically vulnerable out of service, with consequent unemployment at
those ~orts (ex.. Lowestoft) which are concerned with the near-water and
middlé-wate; fiihing fleet. ~lthough the numbers involved would be smaller,
it is expected that the impact would be proportionately greater because these
smalle; towns are even léssable to absorb a sudden economic change of this
magnitude. The employment structure at al1 fishing ports, both large and
small, would be severely disrupted and many who have no direct connection
with the fishing industry would be involved.
147. Confidence in the future of the industry as a whole would be de-
stroyed and it would become more difficult than at present to attract invest-
ment. No industry could easily recover, if it recovered at all, from such a
blow as would be inflicted on the United Kingdom fishing industry by the
exclusion of the distant-water fleet from the principal fishing grounds on
which it has traditionally relied and which provide nearly half its catch.
148. The exclusion of British vessels fromthe lceland area would inevitably
have adverse effects on consumers in the United Kingdom through higher
fish prices and through greater variability in supplies. The United Kingdom
market for fish is characterized by a high demand for demersal species,
particularly cod, haddock and plaice. If supplies of fish taken from the
lcelandic area bv British vessels were cut off in the manner threatened. the
immediate effectin the United Kingdom would be to reduce total supplies of
fish available for consumption by an amount equal to that normally taken
from the lceland area. FOI reasons given above (see paras. 140-1431, no
diversion of British fishing effort from the Iceland area to other fishing
grounds could be expected and any significant offsetting increase in supplies
from the British fleet can therefore be discounted. The only source of alter-
native supplies to make good the loss suffered from the lceland area would
therefore be the world market. The entry of the United Kingdom into the
world market as a major purchaser of fish would cause the present high world
prices to rise to even higher levels. The cost to the United Kingdom of im-
porting alternative supplies would be significantly higher than that of the
sup~lies landed bv British vessels from the Iceland area which they would be
repiacing. This additional cost would inevitably be reflected in higher price
levels on the United Kingdom market. Higher prices, together with the greater
fluctuation and unreliabilitv of the su~..v .ituation which might be expected
io aitendany incrclisein Hriiishdependen~c on iinp(>riediupplies, would cause
hirdship io Lonsumerb in the Lniicrl Kingdoni.
Conclusion
149. Iceland has a population of 204,000. It has a prosperous and rapidly
diversifying economy. The policy of its Government, rightly, is to be less, not
more, dependent on fish. Up to now it has enjoyed (taking one year with
another) about half of the demersal catch and two-thirds of the total catch.
The two countries who up to now haveshared the greaterpart oftheremaining
half of the demersal catch are the Federal Republic of Germany, with 58million inhabitants, and the United Kingdom, with 54 million. In the cir-
cumstances described above it can hardly be said that the Icelandic population
is sufferinghardship as a result of the piesent pattern of fishing or~islikely to
suffer hardship as a result of its continuance. From the point of view of the
distribution of available fish stocks, it would be quite inequitable to double
their potential catch at the expense of the needs of more populous countries. MEMORIALONTHEMERITS
PART 1V
THE LAW RELATINC TO FlSHERlES JURISDICTION
A. Introduction
150. The preceding Parts of this Mernorial have given a history of the
dispute and have set out the facttial position concerningthe living resources of
thearea in dispute and the uses that have been made of them (and that arc
now being or are likely in the future to be made of them). This Part of this
Memorial concerns itself with the general rules of law that are relevant to
claims bv coastal States to exercise fisheries iurisdiction in waters adiacent
to their coasts. After sùnic gcneral observationi conccrning the dppro~ih 1s
these riiûtters uhrch iti subrnittcd thxt the Court should adopr. this Part will
(in Section B thereof) eive an historical analvsis of the oriains and develop-
ment of the re1evant'r;les of law and will tien (in section C) describe the
current lawand its app~~cation to the particular circumstances of the dispute
before the Court.
B. Historical Analysis
151. As will be shown below, it has for a considerable time been a rule of
international law that a State is entitled to reserve exclusivelv for its own
nationals the right 10fish In ~tsterr.torial sed. In more rïzent tiiiics a riile has
devcloped io the ctfccr ihat in certain sircunistanccs a Statc 1nasbe entitled 10
reservë exclusivelv for its own nationals the rieht to fish in a ;one ex tend in^
beyond itïtcrr,to;ial sca.Therc 1s.houevcr. a fu~id~iiicnt~l dilierïnm bctueei
these two zoncs. A coastal Statc is obliacd by international Iaw to possessa
territorial sea1. However. a coastal ta cie not obli-.d bv international law
to claim an exclusive fiiheries zone extending beyond ifs territorial sea,
although if may claim one under conditions prescribed by international law.
152. The conseauence of this dilierence is that. although international law
may concern itselfto a considerable degree with the breaith of the territorial
sea claimed by a State, if accepts without question the need for such a sea;
whereas, in the case of an exclusive fisheries zone,international law concerns
itself not merely with the breadth of the zone claimed but also with the
question whether siich a zone is necessaryat al1 and if so on what grounds.
In any casetheterritorial seaand the exclusive fisheries zone (where it exists)
As Sir Arnold (now Lord) McNair out it:"To evervStatewhoseland ter rit or^is
at any placewashedby thesea,internaiional law attachesa correspondingporiion of
maritime territory consistingof what the lawcallsterritorial waters (indsamecases
nationalwaters inaddition). International lawdoesnot Sayto aState:'You are entitled
Io claim territorial waters if you want them.' No maritime State can refuse ihem.
International law imposesupon a maritimeStatecertain obligations andconfersupon
il certain rights arising out of the sovcreigniy which il exerciresover ifs maritime
territory. The possessionof this territory is not opiianal, not dependentupan the will
of the State, but compulsory." (Disrcnting opinion in theAnglo-Norweginil Fisheries
case,I.C.J. Reports 1951. p. 158a1p. lm.)318 FlSHERlES JURISDICTION
are both "sea areas" within the meaning of the Court's dictum in the Airglo-
Norwepio,~ Fisheries caseto the elfect that "the delimitationof sea areas has
always an international aspect; it cannot be dependent merely upon the will
of the coastal State as expressed in ils municipal law. Although it is true that
the act of delimitation isnecessarily a unilateral act, becauseonly the coastal
State is competent to undertake it, the validity of the delimita1io.n with regard
to other States depends upon international Iaw" 1.
153. T~~~~.he ~o~ ~e.~n rieht of a State to delimit in the first instance the
se=areas to which it is gntitled (or which it is bound to possess)is matched
by the dutv under international law to respect the rules concerning the deli-
mitation which international law orescribes for the orotection of other States.
hli~reoter. this corrcldiioiihetxeen righis and dutic$-a poinr cmph3iired hy
Juds Hubcr in ihe I~lo!i~l<iiP<ili>tu~ c~se '-13 no1conrined io the d~liiii~iit~on
of the seaareas in question. It covers, ton, the rights that may beexercised in
the relevant zones and the corresponding duties.
154. This correlation was emphasized by Judge Alvarez in his individual
opinion in the Anglo-Narwegiott Fisheriescnse 3 when he said:
". ..2. Each State mav thereforedetermine the extent of its territorial
se2 and the iray in \ihiihit ii t~ hc rcckoncd. prù\iJed thar 11docb <O in
3 rc3$0n~hle nixnncr, rhar it tsc;ip:iblc of e.wrc,i,#ng \i~pcri'i\i~~~dger
the zone in question and of carrying out the duties imposed by inter-
national law, that il does not infringe rights acquired by other States,
that it does no harm to general interests and does not constitute an abris
de droit. ...
3. States have certain rights over their territorial sea, particularly
rights as 10 fisheries; but they also have certain duties. .. .
4. States may alter the territorial seawhich they have fixed, provided
that they furnish adequate grounds to satisfy the change.
5. States may fix a greater or lesser area beyond their territorial sea
over which they may reserve for themselves certain rights: customs,
police rights 4, etc. . ..
.............................. . .
7. Any State directly concerned mar raise an obiection to another
State's decision as to théextent of ils territorial seaorof the area beyond
it, if il alleges that the conditions set out above for the determination of
these areas have been violated .. ."
Hirtory up fo 1901
155. For the purpose of the present case it is not necessary to go further
back in10 history than the 17th-century controversy between the concepts of
More Liberiim. associated with the Ducth lawyer, Hugo Grotius (whose
treatise appeared in 1609) and More Clorisiim, associated with the English
lawyer, John Selden (whose work was published in 1635). As is well known,
fhe concept of Mare Liberiim. or freedom of the seas.orevailed.
156. ltwas. however, conceded by supporters of'Mare Liheri~m that the
coastal State hadcertainrights over the seaadjacent to ils Coast,although the
1 I.C.J. Rcporrs19S/,p. 116at~. 132.
22 AlIL (1928), P. 867al p. 816.
I.C.J. Reporrs1951,p. 116at pp. 145,150-151.
Wt is significant that in this Opinion, written in 1951,fisheriesrights were no1
mentionedexpressly. MEMORIAL ON THE MERITS 319
extent and nature of these rights took sonie lime to crystallize. Despite the
stress which he laid uoon freedoin of navigation and freedom of lishinr 1,
Grotiu< ~on,iJcrcd thdi .xSt:itei,ss cr~titled1.)cxcr:i5c .lier ilic ,cd ;iCIj;xXn1
161II\ coa<t r.yhi, tilii2h hcsr sotiic rc>coiblin.c 1.3those si.~>.i.ite.i rrith the
modern concept of the territorial sea. As he said in his main work, De Jure
Belli ac Pacis (1625), sovereignty over a part of the sea may be acquired "by
means of territory, in so far as those who sail over the part of the sea along
the Coast may be constrained from the land no less than if they should be
uDon the land itself"2.
' 157. ~ccording to Professor Jessup, it remained for another Dutch jurist,
Cornelius van Bynkershoek, in his work De Domino Maris (1702). to translate
the idea of ~rotius "into a maxim which seemed to capture the imagination
and convince the intellect" J. The maxim was imperiitm rerrae finiri libi
finirrrr ormori~m polesrris and this, according ta Jessup, is the origin of the
"doctrine of cannon range which is preserved on sorne statute books to this
day and which may be described as the direct progenitor of the three-mile
rule".
158. Despite niuch research 4 the precise origins of the modern law of the
territorial sea remain something of a mystery. It seems clear, however, that
Bynkershoek did not invent the cannon-shot rule. It seems almost equally
clear that he had not in mind anv conceot of a maritime belt. Ltwas rather.
says Walker. "a doctrine of port or fortress areas or zones within a range of
actual auns mounted on the shore" 5.As such, the doctrine of Bynkershoek
was no-more than a statement in more abstract terms of the 0;dinance of.
the States General of 1652 to the effect that hostilities niust not take place
in neutral ports and, for the purpose of determining the area encompassed
by a neutral port, there was no more effective test than "the actual dis-
chargeof an actual gun" 5. Or, as Raestad puts it, "pas de canon, pas d'em-
p..u" ~.
159. Whereas French practice accorded on the whole with that of Holland,
in the Scandinavian region there was a preference for expressing the extent of
neutral waters in terms of a fixed distance rather than the range of guns.
Referring to some negotiations between France and Denmark in 1691-it
must be remenibered that between 1380 and 1814 there asas a joint kingdom
ofDenmark-Norway-Walkersa"y 1si:s probable that in these negotiations
wefind the meeting lace of two distinct currents of oractice. On the onehand
there is the practice'of France and otherpowers as io neutrality in war-time,
based on cannon range of actual cannon, i.e., protection to be given to those
seeking refuge 'sous les canons des forteresses'. On the other hand, there is
the practice of the Northern Powers of Europe fixing a territorial coastal belt
-
lAccording Io T. W. Fulton, The Sovereig,rryof theSeo (191l), atp. 346,"Grotius
placesnavigationand fishingin the seaon the rame footing, ar rather he looked upon
interference with the freedom of fishingas a greater offencethan interferencewith
navigation". (See More Liberitm, cap. V.)
2 Lib.II, cap. Ill, section XI11(2).
J The Law of Terriforid Il'afers(lY27),p. 5.
E.g.,T. W. Fulton, The Sovereiynry of rhe Seo (1911);Jessup, op. cil.;G. Cidel,
Le droir internariono1public de la »,et(1932-1934); A. Raestad, in Rcvueginérolede
droir inrernarionolpublie,1912,p. 598; A. Raestad, La nierrerriroriol(1913): C.B. V.
Meyer, The Exrenl of J«risdierionin Coosral Warers (1937), and W. L. Walker in 22
Brirish YearBook of lnrernotimrolLaw, 1945, p.210.
5 Op. cir.p. 212.
6 Op. ci).p. 107.
,'measured bv mileaae-a oractice which aooears ta have far more in common
with the latér three-mile iimit than does thécannon range doctrine 1."
160. In Scandinavia. accordingly, it was preferred ta measure the extent
of a State's jurisdiction fromthe shore in terms of leaguesrather than cannon
range. At this point it is necessary to draw attention to two further compli-
cations. First, in Scandinavia theleaguewas of the order of4 miles instead of
3 miles as in England and Germany: and that appears to be the origin of the
fact that to this day Norway and Sweden (and, indeed, Iceland) claim a
territorialsea of 4 miles instead of the 3 miles claimed by most States.
Secondly, there was considerable variation in the number of leagues claimed
in Scandinavia, a variation which may owe its explanation to the distance
claimed usually being a rough attempt ta assessthe range of vision from the
coast. which obviouslv is in itself verv variable. At limes the Danish Govern-
mentseenis to hxve iiaimed 4 or e\e-n 5 leagues. On the uthcr hand. in the
t'ranro-113ntsh negoliarions ivhich folloiied the 1hnish Ordinance uf 1691.
and which were unsuccessful, dilïerent distances were suggested for difirent
coasts-2 leagues for the Norwegian coast as far as Trondhjem and a larger
extent for Jutland.
161. The degreeof the orotection acainst caDture in orize oiïered by neutral
waters was nodoubt the principal causeof con-troversybetween the Ëuropean
Powers at this time as regards the extent of coastal jurisdiction but fishery
disputes were not far behind. Here there were widespread variations in State
practice. The Scottish kings asserted with a considerable degree of succcss a
policy of excluding foreign fishermen not only from the many firths and
lochs in their domain but also within a "land-kenning" of the coast-Le., not
nearer than the distance from which land could be discerned from the top
of the mast of a fishing vessel, or about 14 miles on average. Sometimes, a
double land-kenning (28 miles) was claimed 2. England, however. laboured
under a series of "Burgundy treaties", begun in 1407 and confirined in 1496
in the famous Inrercursus Magnus between .Henry VI1 of England and
Phili~ Archduke of Austria and Duke of Burcundv. which lasted for a century
and a half. Under these treaties the fi~herm~n of-both countries were free to
fish anywhere on the seawithout licence or sale-conduct and were free to use
each other's ports under stress of misfortune, weather or enetnies, on paying
the ordinary dues 3. When James VL of Scotland became King James L of
England in 1603 he attempted to apply the Scottish policy in England. This
was principallyta the disadvantage of the Dutch, who sent Ambassadors to
London. These Ambassadors, relying on general international law as well as
the treaties, demanded the liberty to fish to which they hadgrown accustomed
and asserted "for that it is by the law of nations no prince can challenge
further into the sea than he can command with cannon except gulfs within
their land from one point to another".
162.This formulation by the Dutch Ambassadon cornes near to the
orinci~le of a maritime belt and even the orinc.ole of a baseline svstem. as we
know'these principles today. It also suggests the inerging of boih neGtrality
limits and fishery limits into a common limit based on distance and governed
bv the rance of cannon. At least another centurv and a half.howeve;. were to
eiapse befire such a merger could be said to have been achieved. ln '1745the
King of Denmark-Norway, abandoning the earlier claim of 4 leagues,
1 Op. rit., p. 216.
Fulton,op. cil.pp.83-84.
3 Ibid.,pp. 72-73. MEMORIAL ON THE MERITS 321
issued a decree fixing his neutrality limit at one league (4 miles). Two years
later the same limit was applied by the same King to Russians fishing ofl the
coast of Finmarken in nOrthern Norway. Sweden for ils part adopted a
neutrality limit of I league (4 miles) in its Prize Regulations of 8 July 1788
(repeated in ils Prize Regulations of 12April 1808).and on 22 February 1812,
a Danish-Norwegian Royal Decreeenacted the following:
"We wish to lay down asa rule that, in al1caseswl!e!frhereira qrlesrion
of &rcrmiirii~z rirelimir of oiir rerriroriolsoverektrryorseo.that liinit shall
be reckoned ai the distance of one ordinary se~letgue from the island or
islet farlhest from the mainland, not covered by the sea." (Ifalics odded.)
163. Though the Scandinaviari kingdoms inay be given the credit for having
institut~ ~the~modern conceot~~f a maritime belt. il is Io the ltalian writers
Galiani (Dei rloverideipritrcipiiieitfroli, 1782) and Azuni (Sistemariniversale
deipritic~id~ldirirromorirtimodell'E~iropo, 1795)that there isoften attributed
the~mere-rof the svstem of the 3-mile lksue w-th the svstem of cannon-shot.
a merger which (leaving aside the separate Scandinavian practice of a 4-mile
limit based on the diflerent measure of the leaeue prevailing there) was to
become the generally adopted liniit alter about Ï8~1 valuable as the contri-
bution of these ltalian writers was, however, it was the practice of States that
proved decisive.
164. An early instance of such a practice was the treaty of 1786 between
Great Britain and France. This provided that neither Government should
permjt the ships belonging IO the citizens or subjects of the other "to be taken
within cannon-shot of the coast, nor in any of the bays, ports, or rivers of
their territories by ships of war, or others having commissions from any
prince, republic, or state whatevcr". The same wording was used in the treaty
of 1794 between Great Britain and the United States. However, on 5 June
1794, the United States Congress passed an Act authorizing the District
Courts tb take cognizance of ail captures iiiade wirlritionemaririeleogrfeof the
American shores. ln so doine. it was merelv confirmine in lceislative form the
executive instructions which~resident ~ashington hÿd issied a year earlier
(22 April 1793) when war broke out between Great Britain and France. This
limit was adoot.d ~r.visionallv since. as the President out it. the Government
"did noi propose. ai that iinie,.diid \rjihoiit aiiii;ahle c;iiini"nic:itiowtih the
foreign Poaers intercrtcd in the nauig~tton of the COaSI. 1,)fixon the Ji.;tlnire
to whiçh they niight iiliiniately insi,t on the righi of proieciion". The I'resi-
dent's proclm?iitron iilro rtate<l that the greliresi dislsnce IO uh1i.h liny
respectahle aqsentaiiiong nation$ had ever becn given \va\ ihe range of vision.
which was estimated at upwards of 20 miles, and,he smallest distance claimed
by any nation was "the utmost range of a cünnon-bal!, usually stated al one
sea league". Similarly, deciding a prize case in the English High Court of
Admiralty in 1805, Sir William Scott (later Lord Stowell) said: "We al1know
that the rule of the law on this subject is rrrroe ~lomiiiirtmfi~~irrir r,bifiniritr
armorrimvis,and since the introduction of firearms that distance has usually '
been recognized Io be about three miles from the shore 1".
165. More significant from the point of view of the present case was the
application of the rule of the marine league to fisheries. As is stated in para-
The Antin.5 C Rob. 373. In anAmcrican casedccidedin 1812 Mr. JusliceStory
said: "AI1 the writers upon public laagrec that everynation hasexclusivejurisdiction
Io the distance of a cannon shot, or marine Ieayuc. over the watersadjacent 10 its
shores"(Tlle A»n, I Gallison 62; 1 FederalCases,926).graph 162 above, this was done in the case of the Norwegian province of
Finmarken in 1747, the league in this casebeing the DanishJNorwegian league
of 4 miles. In the Treaty of Paris between Great Britain and France(l0 Feb-
ruary 1763), which concluded the Seven Yedrs War, liberty of fishing was
granted to French subjects in the Gulf of St. Lawrence provided they did
"not exercise the said fishery, except at a distance of three leagues (9 iiiiles]
from al1the coasts belonging to Great Britain, as well those of the continent
as those of the islands situated in the said Gulf of St. Lawrence". Off Cape
Breton Island French subjects were no1 to fish within 15 leagues (45 miles)
of the shore. The provisions were confirnied in the Treaty of Versailles of
3 Septsmber 1783. However, in the Convention of London between Great
Britain and the United States (20 October 1818) under which inhabitants of
the United States were given the right to take, dry and cure fish incertain
parts of the Canadian coast, the so-called "renunciatory clause" provided
that "the United States hereby renounce for ever any liberty heretofore en-
ioyed or claimed by the inhabitants thereoï, to take. dry or cure fish on, or
;;thin three marine miles of, any of the coasts, bays, cieeks, or harbours of
His Britannic Majesty's dominions in America not included within the above-
mentioned limits"
166. III 1x17a niincd coninii,~ion ira.; appo nted h) ihc Frcnch anil Hriiinh
Go\eriimcnts IOudniinc disputes uhich hdd ariscn bct\iecn li$licriiicn oi the
Iwo countries over the ovster fisheries in the Bav of Granville between the
British island of Jersey and the French coast. As a result of the conimission's
recommendations a Convention was concluded on 2 August 1839 between
the United Kingdom and France. Under the Convention a closing line was
drawn within which al1 fishing-not nierely fishing for oysters-would be
reserved exclusively,for French subjects. This line was no1 a single baseline of
the modern type but a seriesof lines determined by landmarks. In some areas
the line was as far as 14miles from theshore, but in other partsit waslessthan
3 miles from the shore. In other words, it was a purely ad hoc line. However,
the parties look the opportunity Io provide at the same time that "the subjects
of Her Britannic Majesty shall enjoy the exclusive right of fishery within the
distance of three miles from low-water mark, along the whole extent of the
coasts of the British Lslands: and the subiects of the King o. the French shall
cnjoy the cxcluii\,e righi uf fiihcry w.ihiii thc di*t,,n:e id threc iiiilcc froni
low-waicr mark dong the \iholeextent of ihc codsts of France. . ili<equxlly
agreed ihat the dist~n<cofthree iiiiles fiked 3, the cener2l Iiniii for ihc cxcliiii\e
right uf fishery upon the~~oarisof the t~ruiduniri~ishall. iviih respect ln hxp,
the niouths of uhich do not ercccd icn niilcs in urdth. bc riic~surcd rroni a
siraight line drnu,n from headland iu headland". E.xdctly the sxme princlplen
were followed in the Anelo.Beleian C~ ~en~ion of 22 ~arch 1852
167. The two remainiig significant events, in theevolution of State practice
concerning this aspect of the matter. which occurred in the ~eriod now under
consideration were the conclusion of the Convention of 1882 for Regulating
the Police of the North SeaFisheries and the conclusion of the Anglo-Danish
Convention of 1901 for Regulating the Fisheries in the Ocean Surrounding
the Faroe Islands and Iceland. The relevant provisions of those Conventions
have been set out and described in Part II of this Mernorial (seeparas. 5 and 7
above). As these provisions show, the parties to them accepted that the limit
of a coastal State's entitlement to exclusive fisheries was a line drawn 3 miles
from low-water mark. with a possible closing-line, not exceeding 10miles, for
bays. The parties to the Convention of 1882 were the United Kingdom of
Great Britain and Ireland, Belgium, Denmark, France, Germany and the MEMORlALON THE MERITS 323
Netherlands. The Government of the United Kingdom of Sweden and
Norway-Norway had been transferred from ~enmaÏk to Sivcden in 1814-
decided not to adhere to the Convention, although an additional article
orovided that the. might do so for both countries or for either country. One
Ai the re;isons appedred to ha\? hecn the oppositi,>n ui Suedcn siiJ ?ii~r\rliy
Io the 3-iiiile linlit; anotlier rexi\r.i,iheir oppostiion 13 the IO-ilille rulc t.>r
b3y,1. Thecir;uni\i~nccrin rrhi;h the<:i,ni,enii~ng>fl'>(Iai.coricluJcd. wiih
particiilxr referciice1.1I~clinJ, are des~rihcJ in par.igr.iph> h dnJ 7 aho\e.
168. Ai a1 the hcgin~iing <if tlic 20th ccntiir). thcrcfdrî. the e\til.i~iu~i of
reneral international law aoverning fisheriesjurisdiction, asexpressedthrough
State practice relating atany rat;to that Part of the world's oceans that is
in question in the present case, could fairly be summarized as follows:
(i)There was throughout the region of the North Sea and the North
Atlantic a general trend towards the adoption of a )-mile rule,
measured from low-water mark, for the purpose of defining exclusive
fishery limits, although. as has heen shown, Sweden and Norway
remained determined to uphold the 4-mile limit which they had
establishedtowardstheendofthe 18thand the beginning of the 19th
century.
(ii)Closely associated with the 3-mile limit was the IO-mile rule for the
closing-line across bays. Although this was defined in a manner
rather more favourable to the coastal State in the Convention of
1882 than it had been in the Anglo-French Convention of 1839, it
rernained unacceptable to Sweden and Norway who considered that
they had an historic right to treat al1 the waters of their fjords as
interna1 waters irrespective of the width of the mouths.
Period from 1901 to1945
169. In the early ca or she present century there thus seemed to be very
wide-though not universal-acce~tance that the extent of a coastal State's
fisheriesiurisdiction was limited. broadlv soeakine. to a distance of 3 miles
froiii iis coast. For ihe niost pari. th,533noi con;ci\,cJ ;isx 3epar;ite iirhcrie,
jurisdicrion but rather as an in~iiicnl of ilie <,7~htaIStdie'. ii)i.il ~~rlxiiiiion
over its territorialsea
170. At this time there were four main practical purposes for which States
needed to have authority to exercisejurisdiction over the seasoff their coasts.
These were (i)the need to reeulate navieation. includina t-. oossible need to
exercise criminal jurisdiction in collision cases,such as the Franconia case 2;
(ii)the need to regulate coastal fisheries; (iiithe need to preserve neutrality in
time of war. and(iv) the need to orevent smueeli-.. (Oth.r needs have since
arisen. buch 3s pollution sontri~l inJ the c~plott~tioii of the ;ontinenixl shelf,
hut thcy acre no1thcn Iire,ent in the iiiind~ ofiIi.>se c~~n~criicJ.ll'he priicti;xl
considerations affect in^these four ourooscs were not the same in everv case,
and very early on in the 20th centhry 'the view was persuasively put forward
that a more satisfactory régime would authorize jurisdiction to be exercised
over different distances from the coast for differént iurisdictional ourooses.
The field in which there appeared to bethe strongest casefor a wide; national
jurisdiction-wider, that is, in the senseof extending over a greater distance
from the coast than could be justified for other purposes-was the field of
1See Fulton, op. cil., p637.
Reg. V.Kqvn (1876),L.R. 2 Ex D. 63.neutrality limits in fime of war; a field in which the cannon-shot doctrine,
adiusted to modern conditions. mie.t b- thoueht st-ll to have areal relevance.
Indeed, vieivi to this eKe~.thad hcçn put forward as early as the 1892session
of the Institute of Internationl Law in Geneva 1 and again in 1894 ;IIthe
Paris session 2.
171. A similar discussion had subsequently taken place in the lnternational
Law Association at ils conference in, Brussels in October 1895.Explaining
what had transpired in the lnstitute of International Law, Sir Thomas
Barclay (who had been Rapporteur of the Third Committee of the Institute,
dealing with the definition and régime of the territorial sea) had then said:
"The Institute. after much discussion in committee and at the plenary sittings,
adopted the distinction I proposed, that ir IO sas. that the range of cdnnon
should in principlc deterniinc the \r,idth of the neutrîl zone; while for fishery
and other sobercian rightr there should be a fixed and stîtionary Iimit. uhich
the lnstitute e~te~ded-from 3 to~6~ ~~es. i.e.. ~.e er~-test distance seawards
which any European State at present lays claim 10; within these 6 miles the
adjacent State to be supreme in al1 things save the right of peaceful transit.
which belongs, by univérsal comity, to mankind geneklly." ~he Association
had then proceeded to adopt nem con a proposal to extend the width of the
territorial sea to 6 miles 3.
172. lt will be observed that Sir Thomas Barclay referred to "fishery and
other sovereign rights". In so far as the right ofa State to regulate fisheries,
and in particular the rin-t to reserve fisheries to ils own nationals. is a
"ro\ereign right"-as ilniust he because of the nece,sity IO apply doniestic
Içpiilation to foreign \esrel,, and poss:bly IO eniorce ~ch Icgislatiun against
such vesscls hs rneiins of arrejt-thts p(iints to the ditticult~es ~nhcrent in any
attempt to separate the question of fishing zones from the question of the
breadth of the territorial sea over which the coastal State has sovereignty.
Nevertheless, the idea that fisheries, too, might be a field in which a coastal
State couldbe accorded a s~ecial iurisdiction extendine bevo-. ils territorial
sea wasalso being canvassed and, as early as the 1892session of the lnstitute
of International Law, Professor Aubert of the University of Christiania had
orooosed "de oermettre à I'Etat. sur lescôtes duouel la pèchesefait. d'étendre
SajLridiction ;elalive aux pêcheries (lois,police étpou;oir judiciaiie) au-delà
de la mer territoriale, sur la partie avoisinante de la pleine mer, de telle faqon
que cette juridiction, naturellement à condition d'une parfaite égalité, s'appli-
que tant aux étrangers qu'aux nationaux". As for the width of this fisheries
zone, Professor Aubert had continued: "Le principe le plus pratique me
sembleêtreceoendantdevoir uneearanti- suffisante danscefait aue les mémes
lois seraient tipplisdhlei tant au*. natlonîui; qu'aux étrangers. et par con-
séquentde permettre à chaque Etat de fixer lui-mcine la Iiniite "."The fislierie?
7.onecontemD1atedbv I'rofc\\or Aubert difiered considcrüblv from the 12-niilc
fisheries limii which;as is described in paragraphs 212-225below, eventually
became the rule of international law in the middle 1960s. In the first place,
it was to be left to the coastal State 10 define the limits of the zone; and,
secondly, the coastal State could no1 disc~iminate in the zone between
nationals and foreigners. Nevertheless, in suggesting a separation of fisheries
from the general rules applicable to the territorial sea, Professor Aubert had
-
Annuaire, Vol. 12, pp. 104-154.
2 Ibid.,Vol. 13,pp. 125-161,281.331.
3 Report of the 17thConferenc eO..102-109.
Annuaire,Vol. 12, pp. 104-154; MEMORIAL ON THE MERITS 325
set in motion a trend of great significance in the evolution of international law
which was eventually toculminate in the acceptance of the 12-mile exclusive
fisheries zone
173. Although the idea of a wider and separate system of fisheries juris-
diction was thus present in the minds of somejurists in this ueriod, it advanced
very little in the-course of the first three decades of the 20th century and no
substantial refection of it can bc found in State practice. The move towards
wider national jurisdiction, as distinct from the territorial sea as such,
focused rathe~ ~ ~ ~utrali~ ~limits and. to an increasine extent. on customs.
fiscal and similar matters (including in this description the enforcement of
such national legislation as the Eiahteenth Amendment to the Constitution
of the United tate te of ~merica-the Amendment which introduced
"Prohibition"). The only international Conference of importance, convened
in this period, that was concerned with general questions of maritime juris-
diction was the Conference for the Codification of International Law which
met at The Hague between 12 March 1930 and 12 April 1930. Among the
items which had originally been proposed for inclusion in the Agenda of that
Conference were "Territorial W~ ~rs"~ ~ ~nd "Exoloitation of the Products of
ihr Seri". hut ihc Assciiihl$ of the Leagiie of ~xtions dcrlded in 1927 tIi:ii,
>rhilethe iopic ol'"Territor~.il \\'.iiersM\ras "ripe" ior Ji<;ussion and soul.l be
iiisliidçdiiithe firid,\gciiJ:~. the s~hje<t oi"E\ploit;ition $ifthe Pr<i.lusts ol
the Scd" uds noi \utXcicntly 'ripe" :ind ih~iuld be <cl;h>iJel'orthe tiiiic hcing.
Aciordingl~. tlisiisliihcrs n:is n1u.h di.:iis$ion oi the ti~pi~oi the tcrritor~~l
sea-which in the-end was unproductive in terms of the emergence of any
new rule of law to displace the accepted 3-mile rule-there was no direct
discussion of fisheriesjurisdiction as a separate topic. But that question did,
of course, receive attention as an aspect of coastal State jurisdiction over the
territorial sea and, in this context, there was an interesting contribution by
the delegate of lceland which throws much light on the view taken by his
Governnient concerning the relevant rules which his country accepted as
governing the matter bath under customary international law and under the
Convention of 1901 (see paras. 7 and 167 above). Speaking in the Second
Committee (Territorial Waters) on 5 April 1930, the lcelandic delegate
(Mr. Bjornsson) said:
"1 should like to explain in a few words the reasons why Ivoted for
the 4-mile rule. In my country, 4 miles has been the limit since the middle
of the seventeenth century for al1 purposes, including fisheries. In 1901,
a Convention was concluded with Great Britain fixing a linlit of 3 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 niaintain the limit of 4 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 3-mile limit is ton narrow: sonie desire a 6-mile
limit, hut 1 think 4 niiles (which is the historical basis) would be a fair
limit, provided it were possible to have some rules for protecting the
fisheries in certainareas outside the territorial waters.
1regret that 1am unable to agrec entirelv with Sir Maurice Gwyer [the
British delcgatel that fisheries are primariiy of special interest tonne or
several nations in each particular case. Around Iceland, there is rather an
international fishery; 1 think 1 may say that more than ten difirent
nations fish in the waters roiind the Coast of Iceland, andthe number of nations which go to the rich banks there for fishing is constantly in-
creasing. Furthermore, there are many nations which, though they do
not fish in the waters round the coast of Lceland, are interested in ob-
tainirig the produce of such fishing. Therefore, in my opinion, it 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.
1 iuill not deal further with the question at the moment; it may be
possible for me to return to it when the proposals which the delegation
for lceland has submitted to the Committee are discussed. 1 should,
however, like to express an innocent hope. We have seen that about half
of the members of the Committee are in favour of the 3-mile limit with
or without reservation. and that about -haIf are aeainst it. We cannot
reach a conclusion as to thegeneral rule which wozd be desirable; but 1
would 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 4-mile rule 1".
The reference made by Mr. Bjornsson to "the proposals which the dele-
gation for Iceland has submitted to the Committee" was a reference to a
Draft Resolution and Commentary circulated to members of the Comrnittee
by Icelanù on 31 March 1930. This reads as follows:
"The Conference calls attention to the desirability of the States
interested giving sympathetic consideration to a request from a coastal
State to assist or participate in scientific researches regarding the supply
offish in the sea and the means of protectingfry in certain localareasofthe
sea, and, further, to the desirability of their effectively carrying out any
proposals resulting from such researches and designed to ensure the
international regulation of fishing or restrictions on the use of certain
fishingappliances in the areas concerned.
Reasoizsfor the Proposed Observations
In the last thirt..vears..the use of drede-nr- fishin- tackle-especiallv the
trawl-has increased very much in some places; for example, on fishing
grounds in the sea round the coasts of Iceland. Lnthe opinions of many
persons, the use of such appliances has a peculiarly injurious effect, not
only within the limits ofthe territory where its use is forbidden hy 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
quantities, and also that the conditions of existence of the Fry are ad-
versely affected or ruined in those areas by the continual dredging.
Without giving a yield worth mentionins to the fishing vessels, the stock
of fish in the sea is liable to be much reduced on other neighbouring
fishing grounds owing to the same cause.
It is of increasing importance to examine, on an entirelyscientific basis,
the general questioiis of the effects of fishing 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, ifrreralia,on some grounds in the sea around Iceland, where the
fishing is more international than.in many other places, and they might
give resulfs within a period of some years.
1 Atrc C,/I~LOirrl;ri~rz.c];r/!e(;,d~/i,.~r,ii//i~>e,>~<~~,oLr,~.~lIIC/,/UI ?AlI.,~c,c
Iror?i.ilur<h Ii~hio April 12rl! IYJO\lec.iing,31 tlicC~niniiiice,.\ i>I IIIhliri.ice<if
ihc Sc.'>nd <:<,mniiitr., crrli.,rli\Vaiiri,ai p 142.sea(though rarely, ifat all, more than about 12nautical miles from the coast),
was gaining some ground. But the law as accepted and applied by the
overwhelming majority of States throughout the period was still that a State
had no fisheries jurisdiction going beyond its territorial sea, which itself
(save where.there were special circumstances) extended Io a distance of
3 miles.
The Period Befween 1945 and rlie Geneva Conference of 1958
179. After the Second World War. when the attention of the international
community was able to turn once again to general questions of law relating
to maritime iurisdiction in neacetime, the two issueswhich came to the fore
were the perënnial question of the maximum breadth of the territorial sea
and the niuch newer question of the extent of a coastal State's jurisdiction in
relation to the submarine areas adjacent toit. As regards the former of these
the major event in the early part of the period was thejudgment of the Inter-
national Court of Justice in the Angle-Norwegia~i Fisheries case'. The dispute
out of which this case arose was specifically, of course, a dispute about
fisheries .urisdiction. but an~,dis~ut. at that time about the auestion of the
ehisnt of the ierriior,al sea nex,,arily hxl 311 iiiiportant fishcrier a\pecr sincc
the ide.,ol'.i lirhcrici Iriri<oi<tion repdr.ite ironia St~rc'>jurisrli~iion o\cr the
territorial sea had b; n, nieans eained wide acceotance. Accordinalv. -. . the
principls, coii~crning dclimiiaiion laid do\,n h) the Couri in th.11 case.
pr.nciple, \\hich nsrc ~ubsequently adoptcd by ihc 111r:rnarional Lau
Coriiliii\rion and iiidiic cour>e hy the Gsnev;i Ctinfercncc on tlic [.au of the
Sedin 1953.niusi hc rsg~rded :<sof ths utiiio,t i~iipsridncc in tlic çvoluli~in cii
ihc iiiodcrn Iiri rcl;iiing in fiihrrics jurisdicti,~n ihuugh the) arc no1 dirccily
raised bv the issuesbefore the Court in the oresent case. No lessimnortant.
houeter. \va\ ihe more gener~l pr~niiplccnun:i.~icd hy the Coiirr. in a p~s\agc
ï1rei.l~ q~oicd in pdracraph 152of thii Sleriiori:il, thxt ihc hxingoi li~iiits of
maritimejurisdiction is amatter which is not for the unilateral determination
of the coastal State; it must conform, if it is to be accorded legal validity
against other States, to rules of international law which are generally binding
on al1States.
180. The question of a coastal State's jurisdiction over the seabed and
subsoil adjacent to its shores came into prominence immediately after the
War primarily becauseof the technological developments which were making
the exploitation of the resources of the area a practical operation of ever-
increasing importance. In the legal field the process received a considerahle
impetus from the "Truman Proclamation" of 28 September 1945, which
declared, Nzrerolia, 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 seasbut contiguous to the coasts of the United States
as appertaining to the United States, subject to itsjurisdiction and control",
and also that "the character as high seasof the waters above the continental
shelf and the right to their free and unimpeded navigation are in no way thus
affected"2. In the Norrh Sea Conrinenral Shelf c~ses* the C~.rt~ ~i~ted out
the "special statiis" of the Proclamation and showed how it "soon came to
be regarded asthe starting point of the positive law" on the continental shelf 3.
I.C.J. Reporrs 1951, p. 116.
40 AJIL (1946). Supplernent, p. 45.
I.C.J. Reporrs 1969, p. 3. MEMORIAL ON THE MERITS 329
131. 1hr. hi~iory ofihc ,ic\clJpnient, diiring ihii prriod, of thcIau~rc1dtiiig
t<ilic c<iniinent.il shclf ;huas1li3t90 f-ir ai;i>ncerns the I:i..~igreSoLrici of111e
waters superjacent to the continental shelf, a clear distinction emerged
between, on the one hand, those resources which could be regarded as part,
as it were, of the continental shelf itself (i.e., the so-called sedentary species)
and which therefore should be governed bv the samelesal régimeas the shelf
in stxh rii'iticri3% the righr to regulatc. inJ to cnjo, e*cliisivc hcncfiih ïr,ini.
iheir e\pl<iitsti<in dnJ, on tlic'othcr hand. thosr. rc,<iur;c, \\liich \rcrc ncii thil\
intirii3ic.l) liiikcd nith ihc ;i?ntiiicnt>hr.If(i.e.. other specler ciffi\h. \rIicrhcr
dcnicrsal ar pel;igicl ;ind ah:ch hrerr thercforc go\erncd b) 3 Jiltercnr legal
réyimc Withi>ut piiri.iing th15history in Jcta~l. itnu) hc pointeil ciut ih;ii.
alihoiiah ilisTruiii.in I'ro:la!ii;iti~~n ii\ell ieCerreJ<itd\"n2tur.il rcsour;~,".
it seemsreasonably clear from the context that whai the Government of the
United States of America were primarily concerned with were mineral
resources. This was certainly the general view of what the newly emerging
law relating ta the continental shelf was dealing with and it obviously was
the view of the International Law Commission ai an early stage of its work:
see the commentary on Article 3 of Part 11of the International Law Com-
mission's Draft Articles on the Continental Shelf and Related Subjects
contained in the Report of the Commission on its 3rd Session 1.However,
bv the time of the Commission's 5th Sessionthere had clearly been a change
in international legal opinion, silice the Commission then took the view thif
the term "natural resources" included "the products of sedentary fisheries,
in pariicular to the extent ihat they were natural resources permanenily
attached to the bed of the sea". The Commission made it very clear, however,
that the term did not include "so-called bottom-fish and other fish which,
although living in the sea, occasionally have their habitat at the bottoni of the
seaor are bred there" 2.This approach, which was also reflected in the legis-
lation of many countries, remained constant throughout the rest of the Com-
mission's preparatory work for thej958 Geneva Conference and was in due
course eiven definitive form in the Geneva Convention on the Continental
Shelf which provides both that the natural resources of the continental shelf
(over which a coastal State haï sovereign rights of exploitation) include
"living organisms belonging to sedentarys6eSes. 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 pbysicalcontact with the seabed or
the subsoil" (Art. 2.4) and alsothat "the rights of the coastal State over the
continental shelf do not affect the legal status of the superjacent waters as
high seas" (Art. 3).
182. Accordingly, though there were, of course, a number of indications
painting in the contrary direction, notably in the State practice of certain
States in one region of the world (viz. Central and Southern America) and
though the weight to be attached to this practice as evidence of a dissentient
trend of opinion is by no meansto be ignored, it will beseenthat the dominant
tide of international opinion during this period flowed decisively in favour of
the view that the emerrence of those rules of law which gave a coastal State
s<i\err.ign :incl crcliiit\rightq t,ie\pl<iit. air ~,<intr,>lthe e~ploit~iii~n oi. ihc
rcsotirce\tif ihr. <cini.neni;<l slieli~d~aieticiti in no na) iiiiplicd sny e\icii-
sion of the 1r;iJiiondl Iiniits \i.th.n nliichtli.iSt.~iecoiild ~l;iiaiIO c\crci+c
Ceneraf Assembly Officior Records, 6th Session,Supplemcnt No. 9 (A/1858),
at p. 20.
Ibid .th Session,Supplement No. 9 (A/2456), para. 70at p. 14.fisheries jurisdictionin the superjacent waters, except--explicitly and there-
fore significantly-in respect of the so-called sedentary species.
183. However, it cannot be denied that the period immediately after the'
Second World War was, so far as the law of the sea was concerned(and that
oart of it which relatcd to fisheries iurisdiction no less than anv other). a
period of questioning and uncertainty in which the soundness, or at any rate
the future utility, of many of the old doctrines was bcing challenged without,
for the most oart. anv o;crwhelmine consensus of ooinion clearlvforminein
..- -
support of the new ones. It was against this backgroundthat the International
Law Commission, which in 1949 had included the Iaw of the sea among the
to~ics which is was to studv with a view to codification. uursued its task of
atiempting to reduce that bianch of the law to a comprehehsive and generally
acceptable code, faithfully retiecting modern views and modern needs. It is
unnecessary to rehearse in detail here the history of the work of the lnter-
national Law Comniission on this matter. It is sufficient to remind the Court
that in the Report covering the work of its 8th Session (23 April 1956 to
4 Julv 1956). which it submitted to the I Ith Session of the General Assembly
in 1G6 1, the Coniinission was able to put forward for consideration 73 draft
articles (with coninientaries) concerning'the territorialsea. the high seas,
fishinz and the conservation of the livine resources of the sea. the contieuous
zone,-and the continental shelf. In lccordance with the' ~ommisiion's
recommendation, the General Assembly decided to convoke an international
Conference of plenipotentiaries to examine the law of the sea, taking account
not only of the legal but also of the technical, biological, economic and
political aspects of the problem, and to embody the results of its work in one
or niore international conventions or such other instruments as mieht be
appropriate. That Conference. the first United Nations Conferenceonthe
Law of the Sea,accordingly met in Geneva froni 24 February 1958to 27 April
1958.
TlieGe~ievaCoirference of1958
184. The range of niatters covered by the 1958 Conference, both those in
which it was successfiil in producing agreement and those in which no agree-
nient could be secured, went far beyond the issues before the Court in the
present case. The history and outcome of that Conference are, in any event,
matters too well known to need detailed analysis in this Memorjal. Accord-
ingly the account given here will be very summary and will concentrate on
those parts of the Conference's achievements and attenipted achievenients
which bear directly on the present dispute.
185. First, the Conference's achicvements. Though it failed to reach
agreement on the niaximum breadth of the territorial sea or of fisheries
jurisdiction-as to which sce paragraphs 191-199 below-it did reach agree-
ment, which is now enibodied in the Convention on the Territorial Sea and
Contiguous Zone, on the principles which govern the delimitation of the
territorialsea. Since it is cenerallv acceoted that these also aovern the
deliniitation of any other zone of coastal tat terisdiction, the Conference
did settle one aspect, which in the past had given rire to niuch dispute. of the
uroblem of fisheries iurisdiction. ~"othcr indirect but riiost irnuortant resuect
in whichwhat wasaihieved by the Confercnce alïected the question of fisheries
jurisdiction has already been touched on in this Meinorial, that is to say, the
clear enunciation of the principle that a coastal State's sovereign rights over
1 GeireralAssembly Ofiiol Records, l lth Session.SupplementNo. 9 (A131.59). MEMORIAL ON THE MERITS 331
its continental shelf have no bearing on the question whether il has any
similar rights over the superjacent waters (seepara. 181above).
186. The principal provisions adopted by the Conference on the subject of
fishing were, however, directed not so much at the question of the extent to
which a coastal State could cxcrcise exclusive jurisdiction but rather al the
problem of the rcgiilation of fishing on the high seasas an area in which no
State could claim exclusive jurisdiction (except over ifs own nationals)
although al1 States were under a duty to co-operate with each other for the
good of thc comniunity asa whole. First, it is necessaryto note the provisions
of the Convention on the High Seas(which are expressed Io be declaratory
of customary international law). These proclaim very clearly that freedom of
fishing is one of the freedoms of the high seas. Article 2 of the Convention
provides that "the high seas being open to al1 nations. no State may validly
purport to subject any part of them to its sovereignty". It goes on to say that
freedom of the high seas, which "comprises, iirrer olio. both for coastal and
non-co~ ~ ~~Sta~e~ ~~ . . the frecdoni of fishine.- . .shall be exercised bv al1
Stiiics irith reason~hlc re~drJ. io ihc iniere,!, of<ither St:~tcsin their c\cr<ise
of the frcedoiii <if the high rcas". Hi11ihc Coniercncc diJ itot confine ilself Io
ihis grneral propositian Ilalso adopted initriiiiientç setting out in det~ii ille
ohligaiion, ofSi:ite> in thii fielcl tu gite eiTcctto ihc principlcs of iiilerniitional
co-operation and interdependence.
187. The most important of thesewas, perhaps, the Convention on Fishing
and Conservation of the Living Resources of the High Seas.The Convention
applies to the living resources of the high seas generally and declarcs in its
oreamble that there is a clear necessitv that the uroblems involved in conser-
Lalion besolved, whenever possible. on the basisbf international co-operation
through the concerted action of al1 the Stàtésconcerned. Article I reaffirms
that al1 States have the rieh- for their nationals to encage i. .ishing on the
hiyli su>. \iih~ect 1O, IOilicir trcit)oblig~iions. (1>jIo ihe iniere\t~ and righti
t,f cowt:il Siat~s3s provided for in ihe Con\entioti. anJ fi.)to ihc pro\iiions
in the followine Articles concerning conservation of the living resources of
the high seas.The Article goes oii 1; provide ihat al1States h&e the duty Io
adopt. or to co-operate with other States in adopting. such measiires for their
resuective nationals as niav be necessarv for the conservation of the living
resources of the high seas.it does no1auihorize a State to take rneasureswith
respect Io foreign nationals. Siniilarly, under Article 3, when the nationals of
only one State are engaged in fishing a certain stock in a certain area any
necessary conservation ineasures are for that State alone. Under Article 4,
however, if the nationals of two or more States are engaged in fishing the
same stock in the same area, those States shall al the request of any of them
enter into neeotiations with a view to nrescribinr bv arreement for their
~-~ -.-
national~ the necessaryconservation measures.
188. The question of procedures tu be followed in initiating and conducting
negotiations is left open by the Convention. However. on 25 April 1958the
Conference adoptcd 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 opinion of the lnternational Technical Conference
on the Conservation of the Living Resoiirces of the Sea, held in Rome in
April/May 1955, as expressed in paragraph 43 of its report, as to the
efficacy of international conservation organizations in furthering the
conservation of the living resourcesof the sea. 332 FISHERIES IURISDICTION
Believing that such organizations are valuable instruments for the co-
ordination of scientificeffort upon the problem of fisheries and for the
making of agreements upon conservation measures,
Recommends:
1. that States concerned should CO-operate in establishing the necessary
conservation réaime throueh the medium of such or~anizations
covering particuïar areas ofthe high seas or species of liv;ng marine
resources and conforming in otlier respects with the recommendations
contained in the reuort of the Rome conference:
2. ihlii iheie orgnizx;ioni \hci~Id hc ii5ed io fsr.;is prnci.cahle for thc
condiici of ilic ncqiii:iiions heiar.cn Suies cnvir.igcd iinder ,\rtislcs
4. 5,6 aiid 7 of ilie Con\cnri<in on t'iihing aiid C'onser\aii<in ofthe
liiin~ Kcsoiircei ol'ilic Iligh Selis.fairihc rc~olut~onof an). disagrce-
menir .in4 for ihc inipleiiicni.iti<in of agreçd nicxsLrci of con\cr-
vdtion."
189. The Convention recoenizes in Article 6 that a coastal State has a
special interest in the maintenance of the productivity of living resources in
any area of the hiah seas adiacent to its territorial sea. Article 7 authorizes a
coastal State to adopt unilaceral measures of conservation in any area of the
high seas adjacent to its territorial sea, provided that negotiations with the
other States concerned have not led to an agreement within six months. Such
unilateral measures cannot, however, be adopted arbitrarily. They are valid
in relation ta other States only if the following requirements are fulfilled:
(a) there is a need for urgent application of conservation measures in the
lirht of the existine knowledee of the fisher,. ,b. the measures adooted are
based on appropryate scienihic findings; and (cl.such measures'do not
discriminate in form or in fact against foreign fishermen. Any disagreement
as to the validity of the measures may be referred to the Special Commission
provided for by Article 9 of the Convention. Under Article 11 the decisions
of the Special Commission are binding upon the Statesconcerned.
190. At the Conference lceland proposed an additional Article to the
Convention, reading as follows:
"Where a people is overwhelmingly dependent upon it 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 Io the
coastal fisheries zone, the coastal State shall have preferential rights
under such limitations tothe extent rendered necessary by its dependence
on the fishery.
In the case of,disagreement any interested State may initiate the
procedure provided for in Article 57."
On 21 April 1958 this Article was adopted in Committee 1.But when it was
put to the vote in plenary on 25 April 1958, the result was 30 in favour and
21 against, with 18abstentions 2.The Article thus failed toobtain the required
two-thirds majority. However, on 26 April 1958 the Conference adopted a
resolution, originally proposed by South Africa, which, with amendments
proposed by Ecuador and Lreland, read as follows 3:
1 UniredNorions Conference on the Law of rhe.Sea, Oficiol RecordsVol. V, p. 120.
* Ibid.,Vol. II,p.46.
Ibid.,p.48. MEMORtALON THE MERITS
"Special Situations relating fo Coastal Fisheries
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 econornic development,
Havine considered ~lso ~he situation of countries whose coastal
u
population depends primxril) on cax>isl lisherie~ for the animal protcin
of ils diet and \ihorc fi>hing nieihi)d\ ;ire niainly litiiiicdtg>I<ic31lirhing
from small boats,
Recognizing that such situations callforexceptional measuresbefitting
~articular needs,
Conridcring th;ii. bccliure <if thc limiied $c<ipeand e%cepti(inalnaiiire
of ihose sii.~xt~~~n3s,ny nic:irure> aJ<ipiedIO nieei ihcni sr11ul~b1econiple-
meiitary to provisionsincorporated in a universal systernof international
law,
Believing that States should collaborate to secure just treatment of
such situations by regional agreementsor by other meansof international
co-operation,
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
seasadiacent to the territorial seaof a coastal State. anv other States
fishing;n that area should collaborate with the coastal &te to secure
just treatment of such situation, by establishing agreed rneasures
which shall recoenize ans or. .rential reauirements of the coastal
State resulting from its dependence upon the fishery concerned while
having regard to the interests of other States:
2. that appropriate conciliation and arbitral procedures shall be estab-
lished for the settlement of any disagreement."
191. These. ihen. trerc the Conisrenrc', pojiiive a;hievcmïnr> in ihe field
of fisherics jiiri<Ji;iion.On the neg~tivc \ide. tnc ConTcrenrc trieJ. but fatled.
to secure agreement on the maximum breadth of the territorial sea-Le.. the
zone in whiih a coastal State has full sovereignty, a plenitude of jurisdiction-
and it also failed in an attempt to enibody in a new rule of law the idea, which
had been ~raduallv emerclincl over the previous half-century, that a State
might exercise a fisheries-juFisdiction in an area outside its 'territorial sea
proper. Precisely because this ide;i had not yet gained wide acceptance, the
two tooics were not. of course. treated separatelv: the discussion of .the
possibiiity of establishing a distinct rule about fishériesjurisdiction ernerged
as a by-product, as it were, of the Conference's attempt to agree on the basic
rule concerning the territorial sea.
192. The International Law Coinmission itself had been unable to agree a
regulation on the breadth of the territorial seafor the Conference. In its draft
articles it had included the following:
"1. The C<inimtssion rïrognixs th31 intrrnlti<inal prs<ti<c i,no1 uni-
form d. reg~rds the Jeliiiiitatiiinof the tsrritoridl ,cd.
2. The Coniniirsion cons~der>ilint international la\\ d<ie\ no1permit an
ehteniion <if ihe ierritori;il se^ heyund iiiel\c iiiiler.
3. The Coniiiiisiion. niih<>ut taLing an). dc~isii,n 3, tu ihc breailth of
the ierritori.t\CA LIP IOihai Iirnii. nolc,. on the one hlinJ, th31 man). States have fixed a breadth greater than three miles and, on the
other hand, that many States do not recognize such a breadth when
that of their own territorial sea is less.
4. The Commission considers that the breadth of the territorial sea
should be fixed by an international conference."
193. At the Conference there was inevitably conflict between those States,
on the one hand, which expressed firm adherence to the ?-mile rule as the
only limit recognized by international law and those States, on the other hand,
which proposed that every State should be free to determine the breadth of
its territorial sea up to a limit of 12 miles from the coastline or other baseline
applicable.
194. On 31 March 1958 the Canadian Delegation introduced in the First
Committee an amendment to the International Law Commission's draft to
the effect that. while the territorial sea should exiend to 3 miles. the coastal
Staie shoiild ha\c the sanie righis in respect of fishing and the e~ploitation of
lhe living resoiirrri of the sca in the contigudus lone. nitt e\icnding hcyond
I? milei frtini the büseline fri>iii rrhich the brexdth <if the tcrriiorial se* is
rneasured, as in its territorial sea 1.
195. On 2 April 1958 the United Kingdoni Delegation introduced in the
First Comniittee a Drooosal that the limit of the breadth of the territorial sea
should not e\tend be);nd h iiiiles and th:it ;in e\tensioiIO ihis Iiniit shoiilJ
not afisi ekisling rights of p35rageCoriircrÿft and \essclh, including aarships,
outside 3 miles 2.
196. On 16 April 1958 the United States Delegation proposed that the
maximum breadth of the territorial seashould be 6 miles but that the coastal
State should have the same right ta regulate fishing in a zone having a maxi-
mum breridth of 12 miles from the applicable baseline as in its territorial sea,
subject to the rights of nationais of other States, who had fished regularly in
that zone for a period of 10 years. to continue fishing there 3. ln an amended
Dro~osal introduced bv the United States Delee~t-o~ -~~~~ Avril 7 1958 the
period of 10years was;educed to five 4.
197. On 16 April 1958 the Canadian Delegation, with those of Lndia and
Mexico, put forward a proposal which also abandoned the 3-mile litiiit and
would have allowed a coastal State to claim a territorial sea of 6 miles with
a further 6-mile zone in whicb it would have exclusive fishing rights. In
addition, if a State had declared the breadth of its territorial sea to be niore
than 6 miles before the opening of the Conference. the breadth so fixed, up
to but not exceeding 12.miles. should be the breadth of its territorial sea S.
On 18 April 1958 the Canadian Delegation announced the abandonrnent of
this proposal but at the same time put forward an amended proposal, which
read as follows:
"1. A State is entitled to fix the breadth of its territorial seaup to a limit
of six nautical miles measured from the baseline which may be
applicable in accordance with Articles 4 and 5
1 UnitedNotioi?sConference on the Law of rhe Sea,Oficbl Records, Vol. Ill,pp. 89,
2?7
2 Ibid., pp. 103247-248
3 Ibid., pp. 153,253.
4 Ibid., pp 163,253.
Ibid., pp. 154,232. MEMORIAL ON THE MERITS 335
2. A Siaie ha$ iifihhing /one conriguoiii ici ii\ierritorixl\CA extcnding
io Iiiiiicili\rcl\c nauti~dl iiiilc\ fr<iniihc ba\cline ïroni which ihc
breadth of ils territorial sea is measured in which it has the same
rights in respect of fishing and the exploitation of the living resources
of the sea as it has in its territorial sea 1."
198. On 19 April 1958 the First Committee rejected the United States
proposal (see para. 196 above) by 38 votes to 36 with 9 abstentions. Earlier,
paragraph I of the Canadian proposal (see para. 197above) had been rejected
and paragraph 2 adopted 2. But in plenary session paragraph 2 of the Cana-
dian proposal was not approved 3. The United States proposal which had
failed in Committee was reintroduced in plenary but it failed to obtain the
reauired two-thirds maioriu~~ V.tine was 45 in favour with 33 acainst and
7 abstentions 4.The Plenary session zso rejected proposals which Guld have
permitted extensions of the territorial sea up to a maximum of 12miles.
199. The Conference thus failed toreachaereement either on the maximum
breadth of the territorial sea or on the permissible extent of any separate
fisheries jurisdiction, although the concept of such a separate jurisdiction, not
extending further from the Coast than the contiguous zone on which the
Conference did agree (see Article 24 of the Convention on the Territorial Sea
and Contiguous Zone), had attriicted respectable support. The Conference
adopted a resolution requesting the General Assembly of the United Nations
to study at its 13th Session, in 1959, the possibility of convoking a second
international conference for the further consideration of the questions left
unsettled.
Thr Cenevu Conferenc of 1960
200. In response to this request, the General Assembly in due course did
convoke a second conference which duly met in Geneva between 17 March
1960 and 26 April 1960. lts agenda had been limited by the General Assembly
to the Iwo questions of the breddth of the territorial sea and fisheries limits.
201. The discussions in Committee were, naturally, developments of the
discussions that had taken nlace in the 1958Conference and showed increasin~
acceptanceof the idea tha;a coastal State might possess an exclusive fisheriei
jurisdiction outside its territorial sea. provided that this did no1 have the
effectof conferrine such iurisdiction bevond a distance which was eenerallv
-though not universall&ixed 12 mile; from the coasr. In addition to thé
different views which were expressed about the actual breadth of the territorial
sea and of any additional fisheriesjurisdiction zone, there were also difïerent
views about what provision should be made for continued fishing by other
States who had traditionally fished in the waters of such a zone.
202. One of the first proposals to emerge in Committee was one put for-
ward by the Delegation of the USSR on 22 March 1960. It read as follows:
"Every State is entitled to fix the breadth of its territorial sea up Io a
limit of twelve miles. If the breadth of its territorial sea is less than this
. limit a Statemay establish a fishing zone contiguous to its territorial sea
provided, however, that the total breadth of the territorial sea and the
fishing zone does not exceed twelve nautical miles. In this zone a State
1 Ibid, pp. 162, 167, 232.
Ibid..ppp.176-177, 180.
Ibid.,Vol. II,pp. 39, 116.
Ibid.,pp. 39, 125. shall have the same rights of fishing and of exploitation of the living
resources of thesea as it has in its territorial sea 1."
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 further than 12 miles from the baselines, the
new distance varying (more or less inversely) according to the breadth of the
territorial sea claimed.
203. On 24 March 1960 the United StatesDelegation, kecognizing that the
proposal which they had put forward at the 1958 Conference (see para. 196
above) 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:
"Anv State whose vessels have made a oractice of fishina in the outer
zone O; another State during the period of five years im&ediately pre-
ceding I January 1958 (hereinafter referred to as 'the base period'), may
continue to fish within the outer six miles of that zone for the same
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
negotiations between the coastal State and States fishing in the outer 6-mile
zone and a procedure for the settlement of disputes. The leader of the United
StatesDelegation said that while the proposal which he had just put forward
did not provide for the preferential treatment, in the outer zone, of countries
overwhelmingly dependent on their coastal fisheries, his Delegation was
prepared to discuss appropriate proposals with other delegations 2.
204. On 25 March 1960 the Canadian Delegation introduced a proposal
which was substantially the sanie as the one which they put forward at the
1958 Conference (see para. 197 above). They argued that the "six plus six"
formula (Le., a 6-mile territorial sea and a 6-mile zone contiguous to it in
which fishingwould be reserved exclusively to the coastal State) was the only
effective alternative to extension of the territorial sea for the purposes of
fisheries protection 3.
205. On 29 March 1960 the leader of the United Kingdom Delegation
announced that his Delegation would support the United States proposal 4.
However, on 8 April 1960 the United States and Canadian Delegations an-
nounced that they had decided, in deference to the wishes ofother delegations
expressed in the course of the Conference, to withdraw their proposals of
24 and 25 March, and to submit a joint proposal. Their joint proposal
abandoned the United States formula for limiting foreign fishing rights in
the outer 6-mile zone by quantity and species and at the same time modified
the Canadian proposal for a 6-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 .. .
-
Second UnitedNations Conferenceon theLawof rheSea, OfficialRecords, Summary
Records of Plenary Meetings and of Meetings of the Cornmittee of the Whole, pp. 38,
.-..
Second UniredNarions Conferenc oerheLow ofthe Seo, op.cir.,pp.45, 166
3 Ibid.,pp. 49, 167.
4 Ibid.,p. 58. MEMORIAL ON THE MERITS 337
2. A Stïtc is entitled to eitrihlish a fi%hing7one in ihc high seascon-
tiguoiisIO ils territori~s~a extcnJing IO ï mahiniam Iirnit of twrl\e
nauttcal miles fron~ the bli,rline l'romiihich ihc hreadth of ils rerrit<iri~l
sea ismeasured, in \\hich IIshïll hï\e ihesamc right\ in reipect of fishing
and the exploitatiun oi the Iii,ing rerources of the se3 3s 11hss in 11s
territorial sea.
3. Any State whose vessels have made a practice of fishing in the
outer six miles of thefishing zone established by the coastal State, in
accordance with paragraph 2 ahove, for the period of five years imme-
diately preceding 1January 1958, may continue to do so for a period of
ten years from 31 October 1960.
4. The provisions of the Convention on Fishing and Conservation of
the Living Resources of the High Seasadopted at Geneva, on 27 April
1958, shall apply mutatis inurandis Io the settlement of any dispute
arising out of the application of the foregoing paragraph.
5. The provisions of the present Convention shall not affect
conventions or other international agreements already in force, as be-
tween States parties to them, or preclude the conclusion of bilateral or
multilateral agreements 1."
206. On II April 1960 the United Kingdom Delegation announced their
reluctant support for the joint United States-Canadian proposal-reluctant
because; as they explained, the original United States proposal had seemed
to them to be the fairest and most balanced proposal tabled at the Confer-
ence. However, they accepted that the IO-year phase-out provision was the
only one which could hring together those who wanted a longer periodand
those who wanted a shorter period or none at all.
207. In the same speech, the United Kingdom Delegation commented on
a further proposal, which had been made by the Icelandic Delegation, 10
confer preferential rights on a people "overwhelmingly dependent on its
coastal fisheries for itsivelihood and economic development". The leader of
the United Kingdom Delegation noted that this proposa1 was precisely the
same as the one that had been put hefore the 1958 Conference and that had
there heen rejected. He pointedout that:
"The situation was fundamentally diiïerent from when the proposal
first came forward in 1958.Thenit was heing considered against the hack-
ground of a six-mile exclusive fishery limit, whereas, under the present
joint Canadian and United States proposal, after a very short lime the
coastal States would enioy exclusive fishing within a twelve-mile zone.
Moreover, under the 1958 Convention on Fishing and Conservation of
the Living Resources of the High Seas,those States would be able to take
cdre of conservation requirements beyond the twelve-mile zone. Surely
coastal fishing communities in general could feel that their essential
interests would be safeguarded? If il could be assumed that Iceland's
proposal was meant Io relate only to the very few countries whose
economies were overwhelmingly dependent on their fisheries, different
questions arose. If there were enough fish for al1 within the contiguous
zone during the proposed ten-year period, there would seem to be no
case for preferences; but if there were not enough fish, consideration
could be given to some limitation of distant-water fishing. The United
Kingdom delegation would, therefore, be ready to consider the claims
1Ibid., pp. 121,173338 FISHERIES IURISDICTION
of such countries for preferential treatment within the twelve-mile zone
during the ten-year period 1."
209. 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 by 43 votes to 33, with 12 abstentions. Unde! the Con-
ference's Rules of Procedure, only a simple majority was required. The
proposal by lceland for preferential rights for a people "overwhelmingly
dependent upon its coastal fisheries for its livelihood and economic develop-
ment" was also adopted by the Committee by 31 votes to II, with 46 absten-
tions. The United Kingdom Delegation voted against the proposalz. The
12-mile proposal of 22 March 1960was withdrawn by the Soviet Delegation
which voted for a proposal sponsored by the Mexican and Venezuelan and
16 Asian and African delegations. This latter proposal similarly entitled a
State to fix the breadth of its territorial sea up t<ia maxinium of 12 nautical
miles but it was rejected in Committee, receiving only 36 votes to 39, with
13 abstentions 3.
209. On 19April 1960 the Conference reassembled in plenary session after
the Easter Recess. In addition to the lcelandic proposal concerning preferen-
tial fishing rights and the United States-Canadian proposal which had been
approved in Committee, certain other proposals were tabled. Only two of
these require 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:
"I. 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, multilateral or regional
agreements to that effect.'
2. Renumber paragraph 4, which becomes paragraph 5, and add the
following paragraphs:
'6. Notwithstandina the orovisions of the Drecedinp varaprauhs,
but subject to the parigraphs below, the coastal State hasthefac"lty
of claiming preferential fishing rights in any area of the high seas
adjacent to its exclusive fishinozone when it iiscientificallv established
th& a special situation or condition makes theexploitatio'of the living
resources of the high seas in that area of fundamental importance to
the economic development of the coastal State or the feeding of its
population.
7. Any other State concerned may request that any such claim be
determined by the special commission provided for in Article 9 of the
Convention on Fishing and Conservation of the Living Resources of
the High Seas, adopted at Geneva on 26 April, 1958.
8. A special situation or condition may be deemed to exist when:
(a) The fisheries and the economic development of the coastal
State or the feeding of its population are so manifestly inter-
related that, in consequence, that State is grcatly dependent on
the living resources of the high seas in the area in respect of
wbich preferential fishing is being claimed;
1 Second United Notions Confermce on the Law of the Seo, op.rit., pp. 126, 168.
Ibid.,pp. 151,152.
3 Ibid., p151.dom and Denmark on 27 ~pri1.1959 1,the Anglo-Danish Convention of 1901
(sec para. 7 above), which was still in force with certain subsequent modi-
fications in relation to the Faroe Islands, was modified again. Two lines were
drawnaround the Faroe Islands. The first line was 6 miles from the coast and
the second line was 12 miles from the coast. The Government of the United
Kingdom agreed to "raise no objection Io the exclusion by the competent
Danish or Faroes authorities of vessels registered in the United Kingdom
froni fishing in the area between the coast of the Faroe Islands and the
[6-mile] line.. ." (para. 1). In other words, although it was provided that
"nothing in the present Agreement shall be deemed to prejudice the views
held by either Government as to the delimitation and limits in international
law of territorial waters or of exclusive jurisdiction in fishery matters"
(para. 7)-an understandable precaution in view of the forthcoming 1960 .
Conference-the United Kingdom accepted for the purposes of the arrange-
ment an exclusive fishery limit of 6 miles. Further, it was provided that,
"in view oftheexceptional dependence of the Faroese economy on fisheries",
in three areas between 6 and 12 miles from the coast fishing by vessels
registered in the Faroe Islands or Denmark and by vessels registered in the
United Kingdom should, between certain dates, be liniited to fishing with
long line and hand line (para. 3). This was a conservation measure concluded
by agreement between the parties in the spirit of the 1958resolution on Special
Situations relating to Coastal Fisheries (see para. 190 above.) Finally, in
paragraph 2, it was provided that "having regard to the fisheries traditionally
exercised in waters around the Faroe Islands by vessels registered in the
United Kinadom. the Government of Denmark shall raise no obiection to
such vessels~continuing to fish in the area between the [6-mile] lin>. . and
the [12-mile] line".
214. This Analo-Danish aeree-ent was verv far from erantine to Den-
niark c\clu.tvc ii~herie\juri~diction in a 12-niile 7<1neoiï tlic rdroc Islands.
Hoi%eicr. itdirl ih<irri'i re:i>giiiiioii th~t exiluii\liilierie~jurirJ.iri~iriecJ
no1 be limited to the breadth of the territorial sea. which remained at 3
iiiilc\:(t,,ac~cptdn~c thxi in the 12-niile ioiie ~eniiiark na, ciii:tlcJ toa
preferent131po\itii~ii, \incc the restriction in the thrcc aredi hetirezrh :inJ I?
iiiilcstd fishiris hy long linc and h:irid I.i~c.2. opp.>icd Io 1i;~~rliiig.uatild
opcraie in fdvi~uroi the inh~hit~nti of the F.ir<icI\l.tiids: 2nd i. acLcptancc
thdi conscrv3tisn iiie.irure\ uutsirlc flic c\.lii<i\c ti.;lieric>jurisd~ction oi the
coastal State. must he arrived at by international agreenient rather than by
unilateral action on the part of the coastal State.
215. Shortly after the collapse of the 1960 Geneva Conference, and while
the Government of the United Kingdom was trying to pursue and bring to a
successful conclusion their negotintions with the Government of Iceland (see
para. 15 above), they were also in negotiation with the Government of
Norway and on 17 November 1960 the Iwo countries concluded a Fisheries
Agreement2 in which the? provided for a two-stage extension of the Nor-
wegian exclusive fisheries zone. Article II of this Agreement provided that "as
from a date of which the Norwegian Government shall give due notice to the
United Kingdom Government, the latter Government shall not object to the
exclusion, by the competent authorities of the Norwegian Government, of
vessels registered in the territory of the United Kingdom from fishing in an
area contiguous to the territorial sea of Norway extending to a limit of 6 miles
337 UNTS416.
398 UNTS 189. MEMORIAL ON THE MERITS 341
from the baseline from which that territorial sea is measured". The date fixed
by the Norwegian Government Tor the purpose of bringing Article II into
operation was 1 April 1961. The Agreement also provided, in Article III, that
"during the period between the date referred Io in Article II of this Agree-
ment [i.e., 1 April 19611and the thirty-first day of October 1970, the Norwe-
gian Government shall not object to vessels registered in the territory of the
United Kingdom continuing to fish in the zone between the limits of 6 and 12
miles from the baseline from which the territorial sea of Norway is measured".
This special adjustment period was allowed for because of traditional British
fishing off the Norwegian Coast, but Article IV provided that "after the
thirty-first day of October 1970 the United Kingdom Government shall not
object to the exclusion by the competent authorities of the Norwegian Gov-
ernment of vessels registered in the territory of the United Kingdom from
fishing within the limit of 12miles from the baseline from which theterritorial
sea of Norway is measured".
216. The preamble of the Anglo-Norwegian Agreement contained the
following recitals:
"Taking into account the proposal on the breadth of the territorial
sea and fishery limits which was put forward jointly by the Governments
. of the United States of America and Canada at the Second United
Nations Conference on the Law of theSea in 1960and which obtained 54
votes;
Affirming their belief that an Agreement to stabilize fishery relations
between the twocountriesshould be based on the aloresaid proposal, and
should not contemplare the exclusion of fshing vesselsfrom ony area
beyond the limits of the fishery zone referred to in that proposal." (Italics
added.)
217. The Anglo-Norwegian Fisheries Agreement was, of course, followed
shortly by the Exchange of Notes of II March 1961 between theGovernments
of the United Kingdom and Iceland, by virtue of which the Government of
the United Kingdom accepted a 12-mileexclusive fisheries limit for Iceland,
suhject to certain phase-out rights for British fishing vessels in the outer 6
miles. (See para. 15 above and Annex A to the Application' instituting
proceedings.)
218. On 1 June 1963 Denmark took another step in furthering the accept-
ance of the new attitude to fisheries limits when it 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 1.
219. 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" 2.
This intention was in due course put in10 effect by the Territorial Sea and
Fishing Zones Act 1964which provided for a territorial sea of 3 miles andfor
an exclusive fisheries zone extending 9 miles beyond that. However, in the
implementation of this legislation. provision was in due course made for the
continuation of fishing by vessels of the United States, France, the United
Kingdom, Portugal, Spain, Italy, Norway and Denmark (al1 of whom had
3 Inrernol~onuLlrqal i\fuleri(19fAJ. 1122.
2 lnr~rn~l~i~nLipul hluieriul(l96iJ.661.traditionally fished in certain areas within the exclusive zone) pending the
conclusion of negotiations with ttiose countries 1.
220. The trend thus being set hy these instances of bilateral agreements or
legislation by individual States, acquiesced in by the other countries con-
cerned. was considerablv advanced at the end of 1963 and the beainnins of
1964by an iniportant ekirii on the muiiilaieral plxnc. This wxs the holdini of
the Curopcan Fisherics Confcrr.nce in London bcihecn 3 Ilcieinber 1963and
2 Marih 1964.and the rciult.int adoption. un 2 \Iirch 1964. of thc Eurciocan
Fisheries Convention 2. The original signatories of this convention kere
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 arrangements concluded with the United Kingdom
on 26 September 1964,28 September 1964and 30 September 1964,respective-
ly, Poland, Norway and the USSR in efect accepted the validity of the Con-
vention 3. In due course, on 7 June 1966, Poland formally acceded to the
Convention. Iceland participated in the Conference but refused to become a
paity to the Convention.
221. Under Article I of the European Fisheries Convention of 1964, each
Contracting Party recognized "the right of any other Contracting Party ta
establish the fishery regime described in Articles 2 to 6 of the present Conven-
tion". The "fishery régime" referred to was one under which:
(a) "The coastal State has the exclusive right Io fish and exclusive
jurisdiction in matters of fisheries within the belt of six miles mea-
sured from the baseline of itsterritorial sea" (Article 2).
(b) "Within the belt betweqn six and twelve &les meas"red from the
baseline of the territorial sea, the right to fish shall be exercised only
bv the coastal State and hv such other Contractine' Parties. the
v;sselsofwhich hai,e hahitu;ll) fished in ihxt heli betueen I ~an'uary
1953aiid 31 L>cccnibcr 1962" (.\riiile 3)
(c, .'F~sh~ngveçicl, of ihe Coniraciing I1.iriie,. othcr ihdn ihc co~sial
Siare. periiiitreù r<ifish unJcr Articlc 3. ih.ill niir drrccr rhcrr tishrng
cffori rci\ixrd\ si<icks,if tish or firh~nr:grodnds s.ibstantidlly difirciii
from tliore iihich ihev h~ve h~biiuallv .~nlo.tcd. The :o.istal Stdte
may enforce this rule3'(~rticle 4).
(d) "(1) Within the belt referred Io in Article 3 thecoastal State has the
power to regulate the fisheries and to enforce such regulations,
including regulations to give effect ta internationally agreed
measures of conservation, provided that there shall be no
discrimination in form or in fact against fishing vesselsof other
Contracting Parties fishing in conformity with Articles 3 and 4.
(2) Before issuing regulations, the coastal State shall inform the
other Contracting Parties concerned and consult those Con-
tracting Parties if they sa wish" (Article 5).
(e) "Any straight baseline or bay closing line which a Contracting Party
may draw shall he in accordance with the rules of neneral interna-
ttonal I.iiand in particril~r uith ihc pruvihion5 of ih~~onb,cntion on
the 'lerriiorial Sca and the Contiguoui Zone opcned for sig-
nature 31Gcncv3 on 29 Auril 1958" (Article 6,.
' Internationoltegol Morerials(1964).922.925.
2 581 UNTS 57.
' 539UNTS 153; 548 UNTS 63; 539 UNTS 159. MEMORIAL ON THEMERlTS 343
222. In addition to adopting the Convention, the London Conference also
adopted, on 17 January 1964, a resolution on Conservation, which read as
follows:
'.Kei.>giii/ing ih:it AI!r.lTorii io promi>ie ihc sidbiliiy and prospcrii) of
ihe li\hing indu%iry ~liimdiely Jcpend (iielTcciive ci>nscrvdiion nica\ures
to ensureihe rational ex~loitation of the resources of the sea.and that the
<'<>inmi<rionreccnily eitahlc.lied under ihc Norih-Taii .~\ilaiiiis ki,herie,
Cjn\cniion is the body iiitzrnationdll> respon.:hle for ihc\c mdirerï.
The Conference uraes the Governments represented on the Commission
to intensif; their efforts
To secure the introduction of such measuresas may be necessary, not
onlv.to o.event over-fishing. b-t to ensure the ~rofitable exnloitation of
the fiilicr~cs for ihe bcnclir of XII the c,iuntric.; .'on.'criicd.
,1114i;ir thir plirp<l,e 10 rii.Jrc ihai the <'<irnmij\i,in i$$nabled ICI
cni. .v ilie i.illraii-e <ifiiieJsurc> cn\,tv~.!r.din ille Cdnvciitidn. incliiding
rneasures of national and international control to ensure the effective
observance of the regulations."
The Tcelandic Delegation voted in favour of this resolution, which indeed was
adopted unanimously.
223. In the years which followed the adoption of the European Fisheries
Convention of 1964, numerous instances occurred of reliance on, and
acqi.iesccrice in. the prop<isitisn ih~i the I11111\1 et hy infcrn~tiansl lai, for the
eicr<i\e <iffi,hcries j~riiili;tii>nby d ci>.1zi31St~tc had nio\ed 10 IZ miles frim
th31 Strltc', cm.111ne. I hu,. or^ 10Scplerl~her 1965, Ncu Le;il;iiid cnncied ihc
Tcrriiori~l Sc 2nd Fishina Zonc Ac1 1965 M hi~h \vascl~?sclyniodcllcd on the
C .in;ididn lcysl.itii>n rcfcrrc.1 I<Iin pxr~grliph 219 .~ho\c In ciieci, 11.,l<iimed
an c\cluriic iirherie\ jonc <if 9 iiiilci hoond A terrir<irial \c.t i>f3 iiiilci. '1his
legislation was at first the subject of a vfgorous protest by the Government of
Japan but that Government eventually accepted it (subject to certain tempo-
rary provisions) by an agreement signed on 12July 1967 1.Another example
is the legislation.enacted by Portugal on 22 August 1966 which apparently
established a fisheries jurisdiction zone of 12 miles of which the inner 6 miles
were for the exclusive enjoyment of Portuguese vesselsand the outer 6 miles a
zone in which Portugal exercised regulatory, but non-discriminatory, con-
trol2.
224. Further examples could be adduced. But one which is particularly
illustrative of the position which was being created during these years is the
enactment by the Congress of the United States of America, on 14 October
1966,of an Act "10 establish a contiguous fishery zone beyond the territorial
seaof the United States". This provided that "the United States will exercise
the same exclusive rights in respect of fisheries in the zone as it has in its
territorial sea, subject to the continuation of traditional fishing by foreign
State~ ~th~n~ ~~~~ ~ne as ~av~be recoenized ~- the United States" (Section
1). The term "the zone" was defined as a zone having "as ils inner boundary
the outer limits of the territorial seaand as its seaward boundary a linedrawn
so that each ooint on the line is 9 nautical miles from the nearest oint on the
inner boundary 3". Before the enactment of this legislation (which was a
development of earlier legislation, enacted in May 1964and relating primarilyto fishing for sedentary species on the United States continental shelf), the
Chairman of the Committee on Commerce of the United States Senate asked
for the advice of the State Department. This advice was supplied in a letter
dated 18 May 1966,which was in the following terms:
"Deparrmenl of Srale,
Washington, May 18, 1966.
Han. Warren G. Magnuson
Chairman, Committee on Commerce,
US Senate.
Dear Mr. Chairman.
Your letter of June 30. 1965.enclosed cooies of S.2218. introduced bv
Senator Bartlett, and s.2225, introduced by Senator ~agnuson, on
which the Department of State's comments were requested.
The ouroose of the Dro~osed leeislation is to establish for the United
Statesa 12-mile exclus~vefisheriesione measured from the haseline 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 hy the US Government.
Although the Geneva Conference of 1958 adopted four conventions
on the Iaw of the sea. it was recognized that the conventions left un-
resolved the twin questions of the width of the territorial sea and the
extent to which a coastal state could claim exclusive fishing rights in the
high seasof ils Coast. The Conference adopted a resolution suggesting
that the United Nations cal1 a second conference to deal with these
unresolved problems. which the United Nations did. At the second
conference. which was held in 1960. the United States and Canada out
fi~rward a coiilpromise propoy~l for a 6-inile territorial sea. plas6-iiiile
erclusivc fishertes zone (12 mile, of exclusive lishçrics juriid~ction in all)
subiect to the continuation for 10 vears of traditional fishine. bv other
states in the outer 6 miles. This compromise proposal failed b; oke vote
to obtain the two-third vote necessaryfor adoption.
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 stdtes acting individually or in concert with other states
have extended or are in the process ofextending their fisheries limits to
12miles. Such actions have no doubt been accelerated by the support for
the proposais made at the Geneva Law of the Sea Conferences in 1958
and 1960, of a fisheries zone totallinx 12 miles as oart of a package
designed ta achieve international agreement on thete;ritorial se;.
In view of the recent developments in international practice, action by
the United States al this tirne to establish an exclusive fisheries zone
extending 9 miles beyond the territorial sea would not be contrary to
international law. It should be emphasired that such action would not
extend the territorialsea bevond our traditional 3-mile limit and would
no1 affect such traditionalfieedoms of the sea as freedom of navigation
or of overflight. With one or two possible exceptions, it is not likely that
such action would be unfavourably received by other governments in
view of the ~rovision for r~ ~ - ~ion of traditional ~ fishin". which the
Department regards as a desirable provision.
In the abovecircumstances. the DeDartment has no objection from the
standpoint of US foreign relations IO establishing a 12-mile exclusive MEMORIALON THE MERITS 345
fisheries zone subject to the continuation of such traditional fishing by
foreign states as may be recognized by the US Government.
Whether the establishment at this time of a 12-mile exclusive fisheries
zone would serve the longer term economic interests of the United States
and the US fishing industry is, of course. a separate question which is
discussed in a revo.t Dr..ared bv the DeDarIrnent of the Interior. Inas-
niuîh as US eriablishinent of a 12-niilc c\clusive tisherics zone would
tend io wpport ihcircnd already referred 10. ihe pass~gcof the pruposed
lcgislaiion \ioul\l riiake it niore dilficult. from the standpoint of intcrna-
tional Isw. 10extend the zonc heyond 12milcr in the future.
Time h3, no1 pcr~iiiitcd Ihe Dcpariment tiiohtain the advi~e of the
Bureau of the Budget with respect10 this report.
Sincerely yorirs,
Douglas MACARTMURII
Assisrai~i Secreiory !or Corigressio~~o/Relaiions,
(For the Secretary of State) 1"
One of the most significant features of the history of this American legislation
is the receptionwhich it received abroad. Although the Government of Japan
had apparently expressed concern about the 1964 legislation and had, as has
been stated, formally protested ai the New Zealand legislation of September
1965,they did not persist in disputing the legality of this legislation ofoctober
1966. Instead, on 9 May 1967, they concluded a seriesof agreements with the
Government of the United States, under which (subject to special arrange-
ments concernine the salrnon fisherv and with a view Io reconcilina the in-
terests of fishermen using different fishing gear, and subject also to certain
temporary arrangements) they agreed ta "take necessary measuresto ensure
that vessels and nationals of ~aÜan will no1 eneaee in --shine. excePt-.uch
libhings, listed helo\r. in the rraier.; uhich xrc contiguous to the icrriioriïl .;ea
of the Uiiitc(l Siaics OCAmcriid and cxtcnd to ;iliniit of 12nxuiicnl niilcr froiii
the baseline from which the United States territorial seais measured 2."
225. Il will thus be seenthat, by about the middle or the 1960s.a firm State
practice had been established which set the limits of a coastal State's fisheries
jurisdiction at 12 miles from ils coast-or. more accurately, from the baseline
from which its territorial sea is measured. This State practice was founded
upon the consensus which had emerged al the 1958and 1960Conferences and
which indeed had failed bv o~,v on. vote to~b~ incor~orated in a Convention
10 he adupied hy ihc Iditcr Conference. It wxs expresscd in nuiiicroui inicrna-
tronnl 3grsei#icnr\ and acts ofnationlil lccisl~iion. II n,ss acqriicsird in hy ihe
vas1maioritv of States. even those who had hitherto been most conservative
. .
in their approach to the matter. It is true ihat claims were currently being
made by certain other States to the possessionof even wider limits of fisheries
iurisdiction. sometimes as mrt of t~ ~ ~territorial sea 3. But none of these
kider claims had behind it 'the authority of the Geneva Conferences or any
comparable expression of international opinion, nor the corroborating sup-
port of such a~wide range of States making similar claims themselves. And
every one of them was the subject of the most formal and explicit protest by
other States. It can fairly be said, therefore. that. whatever view might then
have been held about the future development of the law, the state of ciistom-
5 IrrrernariorrLegol Moreriols (1966).616.
6 Itrlernalional Le~ol Marerials(1967).745.
See paras. 247-256below. MEMORlAL ON THEMERlTS 347
which their case depends. They are, as it were, "equal" in this respect as in
other respects 1.
229. However, the Court is entitled, perhaps even bound, to take note of
the established statements of the law. In the present case, the State practice
which emerged from the Geneva Conferences of 1958 and 1960, as expressed
in the instruments referred to in.nara-.aohs 213-224 of this Memorial and in
particular, as between lceland and the United Kingdom, in the Exchange of
Notes of 1961, reDresent the established statements of the law. As has already
been shown. thesi noint conclusivelv to the nronosition of law that an asser-
tion ofexcl;sive jukdiction over fiiheries béyond 12 miles is not permissible
by unilateral act. Necessarily, therefore, if a party seeks to challenge the
established law-whether by asserting an exception to the general rule or tjy
asserting that the law has changed-the onus of maintaining that challenge
rests upon that party. It is Iceland, not the United Kingdom, which is chal-
lenaina the established law. and it is for this reason that the Government of
the-l'iited Kingdom maintain that the burden of proving that international
law now recognizes the right of a coastal State to make such an exclusive
claim as Iceland is now making rests upon Iceland. Moreover, the fishing
rights exercised by British vessels beyond the 12-mile limit are traditional,
well-established rights to use the high seas which have hitherto been un-
challenged and which have a clear legal foundation. Reference has already
been made to the provisions of the Convention on the Territorial Sea and
Contiguous Zone of 1958, the Convention on the High Seas of 1958 and
the Convention on the Continental Shelf of 1958, as well as to the body of
bilateral and multilateral treaty practice and of State practice, al1 of which
confirm the freedom of fishing beyond 12 miles from properly drawn base-
lines. If lceland seeks to challenge such established rights, it must be for
Iceland to demonstrate to the Court that they no longer have any legal foun-
dation. In the absence of a convincing demonstration by lceland that that is
the cüse. the Court can onlv endorse the continuinr! validitv of those rights.
To set a'side such long-established legal rights, in trie absence of conviking
proof by Iceland, cannot be consistent with the Court's function to uphold
the existing law and established legal rights.
230. Obviously, it would not be consistent with their dutyto assist the
Court for the Government of the United Kingdom to refrain from comment
on the grounds by which Iceland might argue for an exception to the establish-
ed law, or a change in that law. It is proposed, therefore, to turn to a discus-
sion of these grounds. In so doing, the Government of the United Kingdom
are obliaed to a certain extent to s~eculate uDon what those grounds minht be.
Just as,% arguing the case on théjurisdictkn of the Cour< the ovei in ment
of the United Kingdom were embarrassed by the absence of pleadings by
Iceland. so, too, at this stage there is an embarrassment and a difficulty in
being forced to proceed on the basis of speculation about the arguments
which lceland might adduce. If, as is the hope of the Government of the
United Kingdom, the Government of Iceland in due course file a Counter-
Memorial, in accordance with the Order made by the Court on 15 February
1973, the Government of the United Kingdom will then be able to deal by
way of Reply with any argument adduced by the Government Of lceland
which they have not anticipated, or adequately anticipated, in this Metnorial.
1 See,generally,Witenberg, "La thborie despreuvesdevant lesjurisdictions inter-
nationales",Recueildescours, 193611,p. 44; Sandifer,EvidenceBefore Internalional
Tribunats,1939,pp. 92-93. III. The Grorindsiipon Which IcelandMighr Seek ro Argire rhorrheLaw
Has Changedso as 10 Permir on Exceprion 10 rhe Generol Ride or,
Alrernorively,rhor the Generol RuleHas Ilsel/ Chonged
231. On the basis of the various statements that have been made by the
Government of lceland from time to time and in various contexts. it seemsto
the Government of the United Kingdom that the Governmeni of lceland
might seek to justify their claim by reliance on one or other of the following
grounds:
(i) the continental shelf doctrine;
(ii) the concept of "preferential rights";
(iii)the need for conservation;
(iv) the concept of the "patrimonial sea"; and
(v) the doctrine of "Permanent Sovereignty over Natural Resources".
These will now be considered in turn.
(i) The conri~renroslheljdocrrine
232. lmplicit in the claim of the Government of Iceland Io be entitled fo
extend their exclusive fishery limits is the proposition that offshore fisheries
are resources to which lceland has a sovereign right by virtue of the concept
of the continental shelf. Reference to this concept was made in the resolution
adouted by the Althing on 15 Februarv 1972 1.in the lcelandic Memorandum
on fishenir ~rtrir~1;clrcrit~nlrelond of February 19722. in the statcment by
the hlinisicr for Foreign AITnirs of Iceland during the dehate in the General
Assembl~ of the Unlieil Qations on 29 Senicmher 1971 J.and in the siaiement
of the ~inister for Fisheries of lceland at the ~iniskrial MeeJing of the
North-East Atlantic Fisheries Commission in Moscow on 15 December
1971 4.
233. Il is evident that the Convention on the Continental Shelf of 1958
does not support that proposition since, by the very terms of Article 2.4,the
"natural resources" to which that Article refers do not extend to free-swim-
ming fish 5. Itmay also be recalled that in the Norrli Seo Cotrrine,~raS I helf
cases, the International Court of Justice accepted that this Article was "then
regarded as reîiecting. or ascrystallizing, received or at least emergent rules of
cusromary internalional law . . 6".
234. Thus. the accepted doctrine of the continental shelf. as embodied in
the Convention of 1958and as reflecting customary international law, is quite
contrarv to the lcelandic orooosition. The oosition was accuratelv summa-
rized in an official publication submitted io the Mexican ~egisfature, ex-
plaining the reason for reform of Articles 27. 42 and 48 of the Mexican Con-
stitution, in the following terms:
". .. la uretension de eiercer soberania sobre todas las aauas aue cubren
la plataforma continental es.en la nctualidad, contraria al derécho inter-
nacional. Dicha tesis fue clara y terminantemente repudiada por la
i SeeAnnex 5 to this Mernorial.
2 See Enclosure2 to Anncx H io the Application instituiing proceedings,p. 27,
3 Ibid..p.52.
4 Ibid..P.55.
5 Seealso para. 181above.
6 I.C.J. Reports1969,p. 39. MEMORlALON THE MERlTS 349
Conferencia de las Naciones Unidas sobre el Derecho del Mar, en la que
estuvieron representados 86 Estados, es decir. practicamente toda la
communidadinternacional. Como indicacibn de la voluntad de la com-
munidad de naciones a este respecto, bastaia recordarqueel articulo 3 de
la Convencion, que establece el regimen de alta mar. es decir. de mar
libre. de las aguas y esoacio suprayacentes. fue aurobado en la Confe-
rencia de ~inëbra sin 11" solo vota contrario y conmolo tres abstenciones
. . .es, incuestionableniente, la expresioii del derecho vigente en este
materia. La situacion es tan clara y definida que la propria Convencibn
llega a prohibir la interposicion de reservascontra el citado articulo 1."
It is in a verr real sense.inadmissible to auestion the distinction made in the
established law betweensedentary species; which pertain to the coastal State,
and free-swimming species.which do not: or even the distinction between the
mineral resources ofthe shelf and the fishery resources of the high seasabove
the shelf. That distinction is one which has emerged in Stale practice, which
has been endorsed and accepted by the Convention of 1958and which is now
the law. As the Court itself put itin the North Seo Con~ine~tralSlicl/cases:
. "the sovereign jurisdiction which the coastal State is entitled to exercise
. ..no1 only over the seabed underneath the territorial waters. bitt over
the waters themselves. .. .does not exist in respect of continental shelf
areas wlzere there is no jirrisdiction over the siiperjace?zt wuters. . .2"
(italics added).
Moreover. the distinction is not onlv the established law: ilrests uDon sound
and compellingreasons. Itcannot be.supposed that the 1958conference made
a distinction which was nonsensical and unmerited. On the contrary, that
distinction was basedupon practical and persuasive reasons.
235. There is, first, the reason that the mineral resources of the shelf are
finite and non-renewable. Once cxhausted, they are spenl forever. It was thus
desirable to conceive of such resources as part of the patrimony of the coastal
State. Moreover, unlike free-swimming fish, the mineral resources (and also
the sedentary species to some exten:) are fixed and immobile so that their
attachment to the shelf as a natural prolonaation . of the land-mass of the
co;istal Sta~eis LIphysical fiict.I\further. and mùt compclling. reü5on is thxt
the c~pli~it:itii~n of the niineral rcsoiircer <if the shelf cannot be ;tc~omplishcd
without the development of a highly elaborate system ofco-operation and co-
1 Dererhos del PuebloMe.ricniro:iMéxico a Iruvésde sirscotrsrirrrcio~Pu.blishedby
the XLVl Legislaturade la Camarade Disputados, Mexico.Vol. IV, p. 821;cited by
Sepulveda, Ln Polirico Exleriorde México: Realidad y Perspliecriv(1972),p. 144.The
following isan Englishtranslationof thepassagequated:
". ..theclaim to cxcrcisesovercigntyoveral1thewaterswhichcoverthecontinen-
ta1shelfis, ai present.contrary to international law. This lhesis was clearly and
finally rcpudiatcd by the United Nations'Conference on the Law of the Sea,
at which 86 Stateswerc represcnted,that isto say, practically al1theinterna-
tional comrnunity.As an indication of thewishesof thecommunity of nationsin
this respect.itissuficient to record thatArticle 3 of the Convention.whichestab-
lirhes thehighscasrégime,thai is losay, rhefreedomof theseas.for the superja-
cent waters and airspace, was approved in the Geneva Confcrence without a
single conirary vole and with only three abstentions.11is. unqiicstionably, the
expressionof the law binding in this matter. The situalion is so clear and
defined that the same Convention goes as far as to prohibit the making of
reservations 10 the said article."
2 I.C.J.Reports1969, p. 37.ordination with the coastal State. Anyone familiar with the techniques of
offshore drilling will know of the extent to which shore-based facilities are. in
practicsl terms, essential to the conduct of these operations. (~aradoxically,
the sanie considerations may not apply to operations in deeper waters where
differerit techniques have to be used and the availabilitv of shore-based
facilities becomis less crucial.) It was inconceivable, theretore, ihat coastal
States should not have exclusive rights. For non-coastal States to have begun
such operations off the shores of the coastal State would have been to initiate
~irudti~ini ivith iir-redching elïecis .ipori ihr ~<,~,isl Siste. tlic inipli~.ltisiis of
\rhicli \ir.re 3hunil.inily<lesir in 1959 The $:iiiic coii~iJr.r~ii~,ns stiiiply diJ
not aooly to the free-swimmina s~eciesof the hish seas.Their "renewable"
characier called for a quite differént treatment, irincipally in the sense that
the conservation of sucli resources was regarded as a matter of obligation for
a// States, just as the benefit of the resources pertained to al1 States. The
allocation of exclusive rights of exploitation of such a high seas resource to
coastal States would have deprived many States of their existing rights. It
would have produced discrimination against land-locked States. lt would have
afforded noreal 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. Thus
the distinction made in the Convention on the Continental Shelf of 1958 was
based upon rational and realistic grounds.
236. However. and irresuective of the rationalitv of the rule. the law must
be applied by the Court asit is unless Iceland can demonstrate that the law
has changed. Stich a change could corne about only through the enactment
of a new treaty of general application-such as might emerge from the forth-
coming United Nations Conference on the Law of the Sea-or by the
emergence of a new customary rule of international law. There is no new
treat. of g-neral auu. .ation as vet. It therefore falls to lceland to Drove the
emcrgeiicc oirkinic ne,.vcitrtonidr) rulc, in .i;ciird.in<e iiihthe <riteril irhich
xoi'crn tlic e~i.thli,hincnt of:ici>rulc of iu<t<~itidry inrcrn3iiondl I.iu,.
217 Those criteria are rrcll.esilihli\hed The, h.i\,c been riii~iiiirized 3,
follows:
"(al concordant ~ractice bv a number of States with reference to a tvoe
of situation falling wiihin the domain of international relations-;'
(bj continuation or repetition of the practice over a considerable
period of lime;
(c) conception that the practice is required by, or consistent with,
prevailing international law: and
(di general acquiescence in the practice by other States 1."
These criteria find support not only in Article 38 of the Statute of the Court,
which refers to international custom "as evidence of a general practice
accepted as law". but also in the jurisprudence of the Court.
238. The requirernent that the practice be a general one is inherent in the
notion of a general, customary rule. In the Anglo-Norwegian Fisheries case
the Court stated that:
". . .although the ten-mile rule has been adopted by certain States both
in their national law and in their treaties and conventions. and although
certain arbitral decisions have applied it as between these States, other
1 Doc. A/CN.4/16, Yearbook of rhe Internorional Law Commission, 1950, Vol. II, .
p. 26. I MEMORIALON THE MERITS 351
States haveadopted a diilerent limit. Consequently, the ten-mile rule has
no1 acquired the authority of a general rule of international Iaw 1."
239. In the North Seo ContiirrntolShel/cases the Court. in referring to the
process whereby a conventional rule can also become a custoniary rule,
binding on States no1 parties Io the convention, stated that:
". . .a very widespread and represenfative participation in the conven-
tion might sufficc of itself, provided it included that of States whose
interests were specially affected. In the present case. however, . . .the
number of ratifications and accessions so far secured is, though respect-
able. hardly sufficient 2."
It may be noted, in passing, that at that lime there were 37 States which had
ratified the Convention, a number appreciably in excess of the number of
States now ;isserting an exclusive fisheries jurisdiction in excess of 12 niiles.
240. In the A.sylr~rncase, though that case concerned a local custoin, the
Court used words intended to convey a requirement common Io ail custornary
rules in sa.ine.
"The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has beconie binding on the
other Party . . that the rule invoked bv it is in accordance with a
constant and uniform usage practised by the States in question . . .This
follows from Article 38 of the Statute of the Court. which refers Io inter-
national custom 'as evidence ofa general practice accepted as Iaw' 3."
Similarly. in the Rigl~tsojPasso~~ecase the Court based its decision in part on
evidence of "a constant and unifoim practice"4. AS one writer has recently
expressed it:
"lt is no1 siiggested that any mere general coincidence of views among
States. that a e-ven oractice should be a matter of intern;itional Iaw. is
enoiigh, unless the practice is in fact followed sufliciently consistently by
a sufficient nuniber of States 5."
lndeed the Court has emphasized the requirement of uniformity of State
practice in quite unequivocal terms. As il said in the Norrli Sea Cotit;~re~~ro/
Slrel/cases:
". .. an indispensable reqiiirement would be that within the period in
question, short though it might be, State practice, including that of States
whose interests are specially affected, should have been both extensive
and virtually uniform . ..6".
I.C.J. Rcporrs 1951. D. 131.
I.C.J. Reports 1969.p. 42.
I.C.J. Rrporrs 1950,pp. 276-277.
I.C.J. Rrporm 1960, p. 40.
5 Thirlway. 1,rtcrirotioiiol Ct<sto»iaryLawoizdCodi/icotio,r (1972)p. 56. The Soviet
wriler, ProfessorTunkin. hasriaied that"agreement isthcessenceofcustolii asa mode
of creation ofnorms of international law". thus placing the requirement of coincidcnce
of viewsor praciice ai a levelwhich demandsvirtually compleie unifarniity of practice:
Co-e.rimre r,,lI,~rer,,orio,Lnii..95 Reciiei</escours, 1958. 111,pp. 13-14.This may
be ioo high a burden of proof but itemphasires ihe reluciance Io accept a purely
niinority practice. And sec D'Amato, The Concept ofCi,rlo»i itlI~lt~riiotio!Law
0971). Ch. 7. where heemphasires that the consent required is <rysresoteconsent. and
no1universal consent.
I.C.J. Report.r1969,p. 43.352 FISHER~ES JURISDICTION
241. The stringency of these reauirements for orovino a new general
curtoin h3s a ver; <>h"~<)us justifi~ation \Vert ilnot'so. the general r.iles tii
inicrndiional ha. could br coinpletely cr<)dcd h) "niini>riiy priciicc"; thc
coherenceof international lawwould collapse under the imoact of de~artures
from the generally agreed rule decided upon unilatera~ly'b~ a minmity of
States. Such a position is the more intolerable where, as in 1958, customary
rules of international law are embodied in treaties as part 'of a conscious
orocess of codification. Such was the clear intent of those~~---isions of the
continental Shelf Convention of 1958 to which reference w& made earlier 1.
To allow variation of agreed rules upon the assertion of a "custom" newly
created hy minority practice would be tantamount to allowing a minority of
States to legislate for the marjority.
242. Nor can il be said that, in the present case, theseconsiderations do not
apply since only a "local custom", an exceptional case, is in question. Tliere
are certainly situations in which local customs, as exceptions to the general
rule, are applicable and this has heen recognized by the Court in the Asylr!m
case and the Righrs of Passage case. cited earlier. But these situations arise
either in a geographically defined area or within identifiable State-relation-
ships where the departure from the general rule is consented to hy al1 the
States concerned, expressly or tacitly. To quote from a recent study:
"To return to the question of a new rule of customary law of limited
acceptance conllicting with the provisions of a general codifying treaty
.. .an established usage contrary to the treaty will. if the necessary re-
quirements of consistency and opinio jruisare satisfied, give rise to a rule
of local customary law in derogation from the treatl-rules, opplicable
only fo rhe Stores wlrich have e.rpressly or tacitly accepfed if or can be
regarded as linked in a geographical or other community with the States
which have established the custom, unless such fellow-memhers of the
community have actively opposed the custom 2."
The same requirenient of consent was emphasized by Judge Ammoun, when
he said "ln the absence of exoress or tacit consent. a reeionalcustoni cannot
.
he imposed on a State which refuses to accept it 3".
243. lceland has not relied upoii any assertion of a local custom, and. in the
nature of things, an assertion of a riglit to enercise jurisdiction over the high
seas is the assertion of a right erga omnes. It is this characteristic of a local
custoni, that il is not opposable to States generally, which distinguishes if
from general custom. As has been said,
"Ou'en est-il oour la coutume locale?Celle-ci ~~t effectivement ano..-
quée-comme regle de droit internationalpar certains Etats seulement;
elle n'a pas l'autorité général qui lui permettrait d'être opposable ergo
omnes. La volonté va étre, ici, un facte-ur essentiel pour la forniation de
Anfe, paras. 181and 233.It isnot the contention of the Covernment of the United
Kingdom that 011provisions of the 1958 Convention were declaratory of existing
Customary law. But those provisions invoked in paras. 181and 233clearly were siich.
"hirlway, op. rir, p. 139 (italics added). And see Jurixdicrionof rhe Europeon
Cominissionof the Danube, P.C.I.J.,Ser. B.,No. 14 at p.17: "by usagehaving juridical
forcesimply becauseit hasgrown up and beenconsistenily applied with the unanimous
consent of al1the Statesconccrned." The Court is summarizing the conclusions of the
Special Committee, but significanily without disagreeing with this assessrnentof the
requiremenis for a local cusiorn, in thiscase the custom being that governing the
powcrs of ihe European Commission of ihe Danube.
North Seo CoritinentalSheljcases,1.C.J. Reporrs 1969, p. 131. MEMORIALONTHEMERlTS 353
la coutume locale et pour son opposabilité puisque la coutume locale ne
sera opposable qu'aux Etats qui ont contribué à sa formation. Elle ne
oeut êtreétendue à un Etat tiers qui la ré~udie et elle ne Deut lui être
étendue que s'il la reconnait soit expressément. soit tacitement en y
'adhérant par son attitude' (ce qui au-delà du simple silence exige un acte
devolonté positif ou une abstention 'qualifiée') 1".
Al1 States with riehts in the hi-h se~ ~as recoenized bv Article 2 of tlie Hieh
~eas~onvention-of ,958 and also by Article 3-of the Contingntal Shelf CO;-
vention of 1958-are affected by such assertions of exclusive jurisdiction over
waters previously regarded ashigh seasand the concept of a "local" custom is
clearly inappropriate to such a situation ifsuch a custom purports to be based
upon the consent of a limited niimber of States. For the establishment of a
special rule of jurisdiction over the high seas,even though ils application is
confined to a specific geographical area, there would have to be evidence of
consent by the community of States as a whole. and not nierely of consent by
the tat tes-wit thatngeographical area. In relation to the high seasaround
Iceland, there is no consent, express or tacit, to the lcelandic claim by the
States affected by it.
244. Nor is it possible to equatethe present practice of a minority of States
asserting claims similar to that of lceland with the practice of States which, in
a relatively brief period prior to 1958, founded the custoniary law of the
continental shelf. That practice was not inconsistent with prevailing interna-
tional law but was accorded geiieral acquiescence as filling a lactiir(in the
law. The "practice" which Iceland might invoke to support its extensive,
exclusive fisheries claim is, in contrast, contrary to the present law as settled
by the 1958 Conventions and has been the subject of repeated protest by
those States whose legitiinate interests on the high seas have been adversely
affected by the practice. It is inconceivable that a new customary Iaw could
develop upon the basis of such a tninority practice, contrary to the established
law and to the practice of the great majority of States and in the face of 8
repeated protest by those States adversely affected.
245. It may assist the Court if the entent of this minority practice were now
to beexamined. Not al1the legislation of the various States concerned is avail-
able and. ~articularlv in relation to recent claims, reliance has to be olaced on
seconda&sources; what follows is therefore a simmary of the posit'ion which
the Government of the United Kingdom believe to be as accurate as reason-
ably possible, based upon the best evidence available to them. In broad
terms. it appears that in addition to lceland some 19 States claiiii e.~clr,sive
fisheries jurisdiction beyond 12 miles: these States are Argentins, Brazil.
Chile, Ecuador, El Salvador, Gabon, The Gambia, Ghana, Guinea. Haiti.
the Maldives, Morocco, Nicaragua, Nigeria, Oman. Panatiia, Peru, Senegal
and Uruguay. That is, in total. 20 States out of the 114ktiown coastal States.
Then there is Cameroon which in 1967 legislated for a territorial sea of 18
miles but is not known to have yet fixed by decree any liiiiit for exclusive
fishing. Costa Rica. by decree in 1972,claimed a 200-mile zone, but erpressed
as a zone for conservation powers and not exclusive fishing. Mauritania
claimed a 30-mile territorial sea in 1972, althouyh it is not clear whether this
claim has superseded the 1963 Code which establislied a 12-mile fisheries
zone, with the preservation of certain foreign fishing in the oiiter 6 niiles.
1 Cohen-Jonathan,"La coutume locale" in An,u,~<irfm,>cuiv,Je rJroi!iiilrrirolio-
no/,1961.p. 119ai p. 133.D'Ainato. op. cit.p. 235,refersIo specialciistoni asdealing
with "nongencralirable" topics. MEMORIALONTHE MERITS 355
"Resources within IZ nautical miles from the coasts may only be
exploited by Argentine vessels.The Executive Branchshall also establisb
annually an area of the Argentine territorial seareserved for exploitation
by Argentine vessels 1."
Thus the absolute prohibition of foreign vesselsisconfined to the 12-mile zone
an~ ~e-r~ ~8.802.o~-22 November 19~7 ~ (Bolelin Of.cial..24 November 1967)
in fact promulgates Provisional ~egulatiins for Granting Perniits to ~oreig"
Shios to Exoloit the Living Resources of the Argentine Territorial Sea. The
retention of power to permit coritinued roreign fishing is, as we shall see, a
feature of a number of these clainis. The legal significance of such an express
oower is no1 bevond doubt. It niight be argu.d that. where such an exoress
power is stated, the claims are not properly treated as truly exclusive clainis.
Perhaps the safer view is that the question whether the claim is truly exclusive
will have to be determined bv the actual manner of ao~lication of the legisla-
tion. The poucr to iiiiç pcrriiits :ille.t%topen5 rlie pos,ibil~ty iIi:ithe ;.IJ\~J~
Stÿic uill $0 üpply iisIkgi~l.ir~an.dnJ gr.xiit pcriiiits. .a>ta rçioglioc the ion-
iinu~nq \,:~lrdfiy ofxnv ~stübl~jlic~l.tr.tJrtld!~:il 1i<tic111cht5\o th21.iny stllcg:i.
tion of an incompatibility with international law [s avoided. Certainly this
possibility appedrs to have been retained by a number of Latin American
claims.
248. The Brazilian legislation, which also operates against the background
of a claim Io a territorial sea of 200 miles, is different. Article 4 of Decree-
Law 1,098of 25 March 1970 (Dicirio Oficial, 30 March 1970)provides:
"The Brazilian Government shall regulate fishing, bearing in mind
rational exploitation and conservation of the living resources of the
territorial seaand also research and exploration activities.
(1) Regulations may determine the zones in which fishing should be re-
served exclusively Io Brazilian vessels.
(2) In the zones of the territorial sea that remain open to fishing for
foreign vessels,such vesselsmay carry out their activities only when
they are duly regisfered and authorized, and they are obliged Io
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 2.''
This Decree-Law, of itself, is not inconsistent with the general customary
rule; it would leave openthe possibility of regulating fisheries beyond 12miles
by agreement. lt is only by Decree 68,459 of 1 April 1971 (Dicirio Oficial,
2 April 19711,made pursuant to Article 4. that the exclusive fisheries zone is
l
determined Io be 100 miles, and even here it is not clear how Farthis is based
on a scientifically proven need for conservation rather than representing an
exclusive claim simplicirer.
249. The Chilean legislation is diiïerent again. The Presidential Declaration
of 23 June 1947contains the proviso that "the present Declaration of sover-
eignty does no1 disregard the sirnilar legitimate rights of other States on a
basis of reciprocity . . ."and subsequent Decree 130 of 1I February 1959,
Decree 1078 of 14 December 1961 (Dibrio Oficial, 16 January 1962), and
Decree 332 of 4 June 1963 (Dicirio Oficial, 27 June 1963). envisage the grant
1 Cited by Garcia-Amadar, Lorin-Arnericoond rbe Law of rheSeo, Law of the Sea
Institute, University of RhodeIsland,OccasionalPaper No. 14,July 1972, p. 8.
2 Cited in Garcia-Amador, op. cir., P.10. MEMORIAL ON THE MERITS 357
basis of reciprocity". And under Article 5 fishing by foreign vessels between
12 and 200 miles is permissible iinder licence or in conformity with the pro-
visions of international treaties.
256. Outside Latin America, there is further evidence of variation. Gabon
claims a territorial sea of 25 miles, The Gambia of 18 miles, Nigeria of 30
miles, Guinea of 130 miles, Morocco a fishing zone of 70 miles, Oman of 50
miles, Senegal of 122 miles, the Maldives of 100 miles, Mauritania of 30
miles, Sierra Leone of 200 miles and the Republic of Viet-Nain of 50 miles.
257. Il therefore appears that there is no body of uniform State practice
which-quite apart from tlie relatively sniall number of the States involved-
could support the assertion of a new customary rule of international law.
There is no uniformity as to the distance of fishing zones; some are truly
exclusive whilst others envisage foreign fishing either under licence or pursu-
an1 to agreement; some are based upon the continental shelf concept and
some are not: some are based uoon the claimed need to conserve resources
and others are not. This body oi'State practice is no more than evidence of
dissatisfaction with the existing law. Conceivably, given greater continuity. a
higher degree of application by al1Latin American States and acquiescence by
thecommunity of States as a whole, a local or regional custom might develop
in Latin America. Even in relation to claims to jurisdiction beyond 12 miles
made by States outside Latin America, there is always the possibility that
such claims may find a general acceptance by the community of States, as
exceptions to the general rule, as "special rightsN-perhaps akin to the
concept of "histoiic waters". This possibility is greater in those cases where
there are no other competing claims to the use of the fishery resources. The '
process of recognition of suchclaims by the cornmunity at large, as exceptions
to the general rule. would require both time and verr clear evidence of a
-eneralacaui~.~~~~~~ in such ci~i~ ~ ~ ~ ~this is sneculaiion about the future.~~ ~
This potential for the creation of a local or regional custom, which niay exist
in Latin America or elsewhere. caiznot exist in relation to Iceland. The ~osi-
tion is quite the reverse, for inthe area of the North-East Atlantic lceland is
the oirly State to claim exclusive fisheries beyond 12 miles and there is thiis no
comparison between the Latin American or other claims which reflect a
general practice in an area and the lcelandic claim.which is contrary to the
general practice in the area. The one clear conclusion is that at the present
tirne there is no evidence of a general customary role of international law
which oe.mitq ~-~oastal State to exclude foreign vess-ls froni fishine more -
than 12 miles from ils Coast as part of an "exclusive claim" ta fishery re-
sources: eq.ally~there is no evidence that the lcelandic claim has received
general acquiescence by the community of Statesas a recognized exception ta
the general rule.
(ii) Tlze concept of "preferential righfs"
258. The 1958 ~cneLa Conference adopted the resolution on Special
Situations relating to Coasral 1:isheries 1 with situations such as that of
lceland specifically in mind. It may be useful to recall certain clauses of that
resolution:
1 Seepara. 190above, whichalro dercriber the lcelandicproposal for an article in
the Convention iniporting binding obligations an al1States with regard 10 the pref-
erential rights of coastal StateFor a bricf sunimaryof the Conference'streaiment of
theconceptofpreferential rightssceOda, Iirter,rario!inlCoi!rofSm Re5ource.r (1963),
pp. 122-123. "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. . .
Recominends:
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 hiah
seas adjacent to the territorial sea of a coastal State, any other stares
fishing in that area should collaborate with the coastal State to
secure just treatment of such situation, by establishing agreed mea-
siires which shall recognise any preferential requirements of the
coastal Stÿte resulting from its dcpendence upon the fishery con-
cerned while having regard to the interests of theother States;. . ."
This was the resolution adopted overwhelmingly, with Iceland concurring, by
67 votes to none, with 10abstentions, on 26 April 1958.
259. In 1960lceland madethe following proposa1 to the Conference:
"Where a people is overwhelmingly dependent upon its coastal
fisheries for its livelihood or econoniic development and it becomes
necessary to limii 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 necessary by
ils dependence on the fishery.
In the case of disagreement an? interested State may initiate the
procedure provided for in the Convention on Fishing and Conservation
ofthe Living Resources ofthe High Seas, adopted by the United Nations
Conference on the Law of the Sea of 1958."
This proposal, having originally been accepted in Committee, was rejected by
the Plenary Meeting, receiving 24 votes in favour and 48 against, with 15
abstentions 1.
260. Clearly, there are difïerences of substance between the resolution
adopted in 1958 and the lcelandic proposal rejected in 1960. The Icelandic
proposal had in mind a new article iinposing binding, legal commitments
whereas the resolution did not import legal commitments stricto sensu. It
may be assumed that the majority of States felt that the concept of preferen-
tial rights, whilst deserving recognilion, could not at that stage usefully be
expressed in terms of legal obligation. Indeed, requirements of "collabora-
tion" and "iust treatnient" are of a character not easilv susceotible to Drecise
legal regulition in general terms and divorced from ihe faits of pa;ticular
situations. In addition, the Icelandic proposal conceded an initiative to the
coastal State whereas the resolution places the em~hasis upon agreement and
collaboration between al1the Statesconcerned. ~everthel&s. certain orooos.- .
itoni nia? he e~tricicd froiii ihese de\cl<~piiieiiis.1-irri, incioncepi oipreier-
el r i . rli fur^ run ni1 ad< ueri<ncJ spe:iii:;illy
to deal hith situations such as the lcelandic situation: second. the conceot
was broadly accepted by Iceland; third, theconcepi deiended u'pon proof Of
a need for conservation; fourth, it called for collaboration between al1 the
States concerned and envisaged objective conciliation or arbitration of any
diferences; firth, and most emphatically, the concept of preferential rights
had nothing to do with exclusive rights.
1 See Daras.207,208 and 211above. MEMORlALONTHEMERlTS 359
261. It seemsapparent from the Althing Resolution of 15 February 1972 1.
from the aide-mémoires of the Government of lceland of 31 August 1971 2
and 24 February 1972 3,and frim the various statements and documents
issued by the Government of lceland that the present lcelandic claim Io
exclusive fisheries over a 50-mile zone is no1 based upon this concept of
preferential rights. Although the premisses of Icelandic economic indepen-
dence and the need for conservation are frequently reiterated, and although
these are the identical premisses upon which theconcept of preferential rights
was established, nothing is now said of this concept.
262. No explanation has been given by lceland for this failure Io invoke
the verv conceot designed to deal with the situation facing Iceland. Much
synipaÏhy niay be evoked for a State faced with a situation which it feels is in
principle inequitable but for which the law provides no apparent remedy.
lndeed, in such asituation a court may be tempted Io devise a remedy and rely
upon such "general principles of law" as would suggest a remedy, perhaps in
the form of a customary right articulated in terms appropriate Io a novel
situation. It is not the contention of the Government of the United Kingdoni
that this would ever be a proper course for the Court Io take. But quite apart
from general considerations of the limits of the judicial function which such a
contention would raise, it would in any event be the wrong course in situations
like the present one. Here the law has already devised concepts Io deal with
the very situation in question. How, therefore, can a State ignore these con-
cepts and seek to advance an argunient for sonie novel, customary right un-
known to the law and specifically rejected within recent years by the over-
whelming niajority of States?
(iii)The rleedfor conservation
263. The lcelandic claim Io extend Iceland's jurisdiction over hiçh seas
fisheries is sometimes said to rest upon the asserted need for conservation.
Thus, the Icelandic Law concerning the Scientific Conservation of the Con-
tinental Shelf Fisheries, dated 5 April 1948 4,wds accompanied by a statement
of reasons and a Conimentary 4which included the following:
". . the countries which engage in fishing mainly in the vicinity of their
own coasts .. .haverecognized to a growing evtent 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. . .
In so Paras the enactment of measures to assure the protection of stocks
of fish is concerned, the views of marine biologists will have Io be taken
into consideration, not only as regards fishing grounds and niethods of
fishing, but also as regards the Seasons during which fishing sliall be
open, and the quantities of fish which may becaught."
The Resolution adopted by the Althing on 15 February 19721 stated in
paragraph 4:
"That effective supervision of the fish stocks in the lceland area be
continued in consultation with marine biologists and that the necessary
1 Annex 5 to this Mernorial.
2 Anncx 3 to this Mernorial.
3 Anncx 6 to this Mcniarial.
4 Annex 1 tothis Mcniorial. '
measures be taken for the protection of the fish stocks and specified
areas in order ta prevent over-fishing."
Successivestatements by representatives of the Government of lceland 1 have
reiterated that it is the need for conservation which justifies the claim to
entend the lcelandic jurisdiction.
264. If this is the true basis of the lcelandic claim, three separate questions
are posed:
First, is there a scientifically proven need for conservation of the stocks in
question?
Secotril.if so, by what means may Iceland, as a coastal State, take the
measures necessary to enècl conservation?
Third, are the nieasures actually taken justified by the scientific evidence of
the need for conservation, appropriate Io the particular caseand, in so far as
they affect the ititerests of other States, in accordance with international law?
(a) Tllc pi'ideiiceofa scir~trificallyprovenneedfor conservario11
265. This is a precondition of any claim to adopt conservation measures.
It will be recalled that the Convention on Fishing and Conservation of the
Living Resources of the High Seasof 1958defined "conservation of the living
resources of the tlirh Seas" as "the arregate of the measures rendering
possible the opiimuni suslainable yield fFcm those resources so as to secure a
maxiinuiii supply of food and other marine products" (Art. 2). Moreover, the
right of the coastal State tp take measures for conservation was. under
Article 7.2, niade subject, Nireralia, to the following conditions:
"(a) that there is a need for urgent application ofconservation measures
in the light of the existing knowledge of the fishery;
(6) that the measures' adopted are based on appropriate scientific
findings;
(c) .............................
In relation to the cod-stocks ofF Iceland, there is, fortunately, avialable scien-
tific evidence. That evidence has been fully reviewed in Part III of this
Memorial. It in no way supports the view that unilateral conservation rnea-
sures are required by any considerations relating ta the fish stocks.
(b) The meaiis ivherrhy Icrlaird, as a coasral Srare, miglzr rake measriresof
coiiservarioii
266. Even siipposing that lceland had adduced evidence showing a need
for conservation nieasures. international law does not permit arbitrary,
unilateral action bv a coastal State. One reason for this is oerha~s that it
cannot be assumed.that the coastal State will safeguard thecommon interest in
a res commi~~ris T.he fate of the Atlanto-Scandian herring is lestimony to this
fact 2,
267. The Convention on Fishing and Conservation of the Living Resources
of the High Seasof 1958places the duty of acting to conserve resources on al1
States, not just the coastal State. In the terms of Article 1(2):
1 FislislrcilsrisdicriorIrc10,rd.Ministry TorForeignAtTairs,Reykjavik, February
1972.Appendices III-1V:givenas Enclosure2roAnnerH Io!heApplic;ition instituting
aroccedincs.
2 Sce Gras. 83-87above. MEMORIAL ON THE MERITS 361
"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 theconservation of the living resources of the high seas",
and in the term<ofArticle4(1):
"If the nationals of two or more States are engaged in fishing the same
stock or stocks of fish or other living resoiirces in any area or areas of the
hieh seas. those States shall. at the request of any of them. enter into
negotiatihns with a view to prescribing by agreemënt for their nationals
the necessary measures for the conservation of the living resources
affected."
The whole emphasis is upon action by ogreetneni. It is only when "agreement
with respect to conservation iiieasures" has not been reached that, under
Article 7. the coastal State rnay proceed to take unilateral action. Aiid even
such unilateral action is not finai, but subject to the right of the other States
affected to have recourse to the special Commission to be established pursu-
ant to Articles 9-1 1 of the Conveiition.
268.It is~~o~.c~~rs~-~.ruc that lceland is not a oar.v to.this Convention. As
remarked earlier, the question why a State like Iceland, which professes to be
concerned about conservation, fitils to accept and invoke existing machinery
wh~ ~ ~ ~ ~~~i~n~" soec~7~~allv to deal with conservation is one which has no1
been ansYered by Iceland. However, if is clear that the obligation to proceed
to deal with a problein ofconservation by agreement rather than by unilateral
action is founded not mon this Con;ention but uvon ~rinci~le and the
. .
practice of States.
269. It may be recalled that the resolution on Special Situationsrelating to
Coastal ~isheries 1 regarded the appropriate means as "agreed measures". not
unilateral action. The practice of States abounds with exan~ples of measures
for regulating fisheries being taken by agreement between the interesied
States. The following is an illustrativerather than an exhaustive list.
270. The Norrh Seo nizd Arlo~rric: The Convention for Regulating the
Police of the North Sea Fisheries of 1882 2 initiated a pattern of international
co-ooeration which was continucd in the Convention for the Rerulation of
the ~eshes of Fishing Nets and the Size Limits of Fish of 1946 1and this. in
turn, was replaced by the North-l:ast Atlantic Fisheries Convention of 19594.
Comparable co-operation was provided for by the InternationalConvention
for the North-WestAtlantic Fisheries of 1949 5, dealing with an area including
the Newfoundland Grand Banks which had prodiiced fishing controversies
for some 400 years. There rnay be cited, in addition, the Atlantic Tuna Con-
vention of 19666 concluded under the auspices of FAO; the USA/USSR
1 Seeparas. 190and 258 abovc.
2 Seevara. 5 above.
3 231 UNTS 199.
4 486 UNTS 157: sec alro Annex F to the Application insiitutingproceedings. The
arca covercd was the N.E. Atlantic, the Arctic Occan, part of the Baltic and Mcditer-
ranean waters. Parties are Bclgium. Denmark, France, FederalRepublic al Germany,
Ircland, Iceland, Netherlands, Norway, Portugal, Poland, Spain, Swcden, United
Kingdom. USSR.
5 157Uh'TS 157.Partiesare Belgium, Bulgaria. Canada, Denmark, France, Federal
Republic ofGermany, leeland, Italy, Japan, Norway, Poland,Portugal, Spain, United
Kingdom, United Statesand USSR.
6 6 Ii~rerirorioirnlLcgol Morerials (1967).293;signedby United States,Spain. Karea,Agreement on Fishery Problems in the Western Areas of the Middle Atlantic
Ocean of 1967 1;the USAIUSSR King Crab Fisheries Agreement of 1969 2;
the USA/Cuba Shrimp Convention of 19583; the Brazil/USA Shrimp
Conservation Agreement of 19724; the Convention on the Conservation
of the Living Resources of the South-East Atlantic of 1969 5; the Canada/
Norway Agreement on Sealing and the Conservation of the Seal Stocks
in the North-West Atlantic of 1971 6: and the Iceland/Norway/USSR
Agreement on the Regulation of the Fishing of the Atlanta-Scandian Herring
of 1972 7.
271. TIIC Balric:A Convention of 1929 8provided for closed seasons and in
1932 a Convention for the Plaice Fisheries in the Skagerrak. Kattegat and
Sound 9 was concluded. Denmark. the Federal Republic of Gerrnany aiid
Sweden concluded an Agreement Concerning the Protection of the Salmon
Population in the Baltic Seain 1962 10.More recently there have been the
Seal Fishing Agreements between the USSR and Finland, the latest in
1969 11.
272. TIIP BI OC^ Seal A Convention regulating fisheries in this area was
concluded in 1959 between Bulgaria, Roniania and the USSR.iZ
273. Tlre Pacific:This area has seen a considerable nurnber of conservation
dgreeiiicnic: ilic Ki~rih I'.icifOcr.~n C'on\cniionof 1952 IJ:ilic ,\1~,1<3Crdh
Axrcenieni of 1964 "; thcr\~rcr.rncnt on Fishlng sli' Aliikd of 1964 15;ihc
Coiivciiiioii conicriiine ihc llcch Stxr t:~sherfei of the Nortli-West Pacifie
Ocean of 1956 16;theNorth Picific Fur Seals Convention of 1957 17; the
Halibut Preservation Convention of 1953 1s; the JapanIKorea Agreenient
concerning Fisheries of 1965 19; the Sockeye Salnion Agreement of 193020;
the Agreements between Chile, Ecuador and Pcru signed üt the First Con-
ference on the Exploitation and Conservation of the Maritinie Rcsources of
the South Pacific in 1952 21;the JapanINew Zealand Fisheries Agreement of
7 I,,rer,rorio>rniLegalMarerio(1968), 144; rcnewed in 1968,8 Ii~lenrorioiiulLegal
Morerfois (1969). 502.
8 IrrrcrtrnriorroLlc@l Mareria(1969). 507.
3 358 UNTS 63.
11 l~'ler!~~rio!Llefol Marerials(1972).453.
5 74 Revtregé!~éroi eedroir iirreri~orioirnipir1970), 1012.
Lay, Churchill and Nordquist. New Birecrio,rsoiirheLaw ofrheSeo,p. 414.
1 Ihid., p449.
II5 LNTS 93; parties were Dcnmark, Germany, Poland, Danzig. Swcden.
89 LNTS 199: Dartieswere Sweden. Denniark. Norwav.
10 Lay, ~hurchili and Nordquist, opcir.. p. 446.
11 9 Iiireriiorio,rniLegal Moreri(1970). 507.
12 377 UNTS 203.
205 UNTS 65: partieswcre United States,Japan. Canada.
IJ 533 UNTS 31; partiesareJapan and United States.
l5 4 I!zrrrirnrio#roLlegoi Moreri(1965). 176: partics are United Statesand USSR.
j6 53 AJlL (1959), 763: parties are Japan and USSR.
l7 314 UNTS 105; partiesare United Stales, Canada, Japan, USSR.
222 UA'TS 77: parties are United Statesand Canada. This replaccd earlier con-
ventions of 1923, 1930, 1937.
'9 4 Iiirer,rotioirolLefoi Mnrrri(1965). 1128.
za 184 LNTS 305; particsare United States and Canada. And sec the Protocol of
1956dealing with pink salmon in the Fraser River system,290 UNTS 103.
2' Uirire~lh"~~ionsLeffsloriw Series, Loiw aild Regr<ir,riosn rhe Riginle of rlie
Terriroriol Seo,ST/LEG/SER.B/6, 723. These Agreemcnis establishcd a Standing
Conirnirtee whichis belicvcd no1Io beactive al the presenttime.Whaling Convention of 1946, the Tropical Tuna Commission Convention of
1949and the South Pacific Fisheries Agreements of 1952,has not been main-
tained. Yet Cuba participated in the Convention on the Conservation of the
Living Resources of the South-East Atlantic of 1969.
277. Iceland's own record is worthy of comment. lceland was a party to
the Whaling Convention of 1946, ta the North-West Atlantic Fisheries Con-
vention of 1949,to the North-East Atlantic Fisheries Convention of 1959and
ta the Iceland/Norway/USSR Agreement on the Atlanto-Scandian Herring
of 1972.JI is apparent, therefore, that lceland has been prepared to adopt an
international approach to conservation problems, proceeding by multilateral
agreement, in relation ta other high seas fishery resources. As indicated
earlier, the North-West Atlantic Fisheries Convention regulates an area,
controversial for 400 years, which includes the Grand Banks off Newfound-
land. The question which must be posed is why, in relation to the fisheries off
the Newfoundland coasts, lceland considers that international regulation-
and the preservation of fishing rights for Iceland-is the proper means of
resolving the problems of conservation and yet, in relation ta the fisheries off
the lcelandic Coast,considers that the proper means is unilateral action to the
exclusion of foreign vessels.Iceland, as a non-coastal fishing State in relation
to the fisheries off Newfoundland. en.ovs.. auota of 8.083 metric tons ofcod.
100 metric tons of American plaice and 100.ketric tons of yellowtail flounde;
under the North-West Atlantic Fisheries Convention. If lceland is prepared
to acceot conservation bv an aareed auota svstem. oreservina ~Üotas for
non-coastal States, under ihat ~onventi&, the question which iusi be asked
again is why a similar system is not acceptable for fisheries off Iceland.
278. These auestions are the more ~ertinent becauseanv real uroblems of
conseri,dtion otf the I;cl.inJii :u;~sis ;.in he Viilly iiici un& itic~~ortli-~.i\i
Ail3riii. I'i.hcrics Cr>ri\ciitt<~ni>f 1'151. A$ C\PIJII!~J ln deia~le:irlier ln th,<
\lciii,>ri.il'.ilic Y.irih-ta4 ,\tlanti: Fi>herics <'i~nimt~sioii ha.; pouer, iu
in\i.itig;,icr.v.dcncc of ;I.mn$r.ri,aiioti necd. ii, rc:otiinicnJ conservatun
nicJsiirci dnJ. 5uhje:t io thc c\in\eiit oV.iII the C'otitr.xtinr: Stxtc10 intr<>duie
iiiclisiirci <iic~t:h I.iiiit.itiThc Con\eniioii thiis uri~iiJc.;ifran,c\i<>rk for
highly effective conservation measures. but the extraordinary position has
now arisen that lceland has shown itself ta be the one Contracting State
which is not prepared to agree. It is thus lceland wtich has the sole responsi-
bility for depriving the Commission of the power to initiate, if required, the
most effective nieasure of conservation. An attitude of this kind, taken by a
State which seeks to justify its claim by an alleged need for conservation,
involves contradictions which perhaps only the Government of lceland can
explain. In any event, a serious doubt is raised not only as to the factual
justification, but also as to the bolla firles, of the lcelandic claim that it is
conservation needs that justify the exclusion of fisherrnen of other countries.
Certainly, the lcelandic iinilateral action is totally incoinpatible with the
procedure laid down in the Convention, to which lceland is a party, for
dealine with anv alleeation of a need for conservation-a orocedure wliich is
also, ai explainid abive, the procedure for dealing with such problemsthat is
indicated by the practice of States. That procedure consists of the objective
consideration. thkoueh aereed machinerv; of the relevant scientific evidence
-
and then, if the evidence is held to justif; it. the taking, again by agreement
with other interested States, of nieasures of a non-discriminatory character,
1 486 UNTS 157:seealsoAnnex F to the Application instituting proccedings
2 &e uaras.91-102above. MEMORIAL ON THE MERITS 365
based on that scientific evidence. It leaves no room for unilateral action by
any one State.
(c) Thejirstification, accordingto Ntternationallaw, ofthe measiiresby reference
to the scientific evidertceof the needfor them and ro their regardfor the
Mterests of other Stares
279. As demonstrated above 1,the Government of lceland have failed to
make out a case. based on scientific evidence, of a need for conservation
which would justify their claim that drastic interference with the traditional
pattern of fishing is required. The Governmentofthe United Kingdom would,
however, add that, if such evidence were provided to the satisfaction of the
North-East Atlantic Fisheries commission, they would of course comply
with any measures of conserr,ation called for by the Commission.
280. But there is also another factor to be considered, that is to sav. those
re.uirements imoos.d hv i-,erna~ ~ ~l law which relate to the mode of a,.li-
cation of such measures by the interested States. It has been the law, and still
is. that in princi~le suchmeasures must be based on scientific evidence (and
must therefore be appropriate to the situation disclosed by that evidence) and
mus1 also be applied by al1 interested States withorit discrimination. Both of
these requirements were made express conditions of conservation measures
to be taken under the Convention on Fishing and Conservation of the Living
Resources of the High Seas of 1958. Subparagraphs (6) and (c) of Article
7.2 impose on the coastal State, which is taking unilateral measures pending
agreement, the requirement:
"(6) That the measures adopted are based on appropriate scientific
findings.
(c) Thüt such measures do not discriminate in form or in fact against
foreign fishermen",
and thepowers of the Special Commission are subject to certain criteria which
are specified in Article 10 and which include the following:
" (ii) That the specific nieasures are based on scientific findings and are
practicable; and
(iii) That the measures do not discriminate, in form or in fact, against
fishermen of other Stales."
281. The iact that the measures soughtto be taken by lceland in the present
case are inappropriate-indeed, irrelevant-to the scientific evidence that is
available has been fully denionstrated earlier in this Memorial 1 and need no1
be pursued here. Equally, no further demonstration is needed here of the fact
that, in seeking to take these measures, lceland has shown negligible regard
for the interests of other States, let alone the principle of non-discrimination.
The orinciolc of non-discri~inat~ ~ flows from the most basic orinciole of
international law, the freedom of the high seas. As Article 2 of thé~igk Seas
Convention indicates. the freedom of fishing results from theconcept that the
hinh seas are "ooen to al1 nations". The Ïesources of the hieh seas are res
co&mi,,tis. ~here'is, however, no incompatibility between thebasic principle
of non-discrimination and the companion principle that interested States
may (and indeed should), by agrceme,rr, acknowledge the special situation of
l See Part III ofthis Memorial. , coastal States which, in the terms of the resolution of the 1958 Conference,
calls for "jus1 treatment". A more detailed treatment of this companion
principle is attempted later in this Memorial 1.
(iv) The co~rceplof the "patrimonial sen" 2
282. 1hoiigh foreih.iJtiaed in e~rlier \iItenii.ni>. [hi\ ionsept achiei,cd a
more precise fornitil.it,on in the hlonte$.deo Decl3rition on the I.an of ihc
Sc* of9 hlav 1970 '.a.d. i.iorc reienilv. in tliçDcil.ir.itii~n of S.iiito Di~niinco
of 9 June 19724, the relevant passage oiwhichieads as follows:
"Patrimonial Sea
1. The coastal State has sovereign 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 adjaceiit to the territorial sea called the
patrimonial sea.
2. The coastal State has the dutv to vromote and the riaht IO reaulate
the conduct of scientific research within the patrimonial sea,- as well as
the right Io adopt the necessary measures to prevent marine pollution
and to ensure its sovereignty over the resources of the area.
3. The breadth of this zone should be the subject of an international
agreement, preferably of a world-wide scope. The whole of the area of
the territorial sea and the patrimonial sea, taking in10 account geo-
graphic circumstances, should not exceed a maximum of 200 nautical
miles.
4. The delimitation of this zone between two or more States. should
be carried out in accordance with the peaceful procedures stip"lated in
the Charter of the United Nations.
5. In this zone ships and aircraft of al1States, whether coastal or no1
should enjoy the right of freedom of navigation and overflight with no
restrictions other than those resultinç 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."
283. As shown earlier, the concept that a coastal State may claim sover-
eignty over a// the economic resources of a marginal belt of 200 miles is
inconsistent with the practice of the majority of States today. It is patently
contrary to customary law, as well as Io al1 four of the 1958 Genevd Con-
ventions. Indeed, it is nnt even embodied in the interna1 legislation of the
majority of the signatories of the Declaration of Santo Doiiiingo, let alone
accepted on the international plane.
* For convenienceand brevit? the discussionin the followingparagraphs is con-
ducted in terms of the "patrimonial sea" concept. The considerations set out apply
with equal aptness, however,Io other but sirnilarconcepts which are currently being
canvassed in pregaration for the forthcoming Law of the Sea Conference, e.g.,the
concept of the ExclusiveEconomic Zone and the conceptof a coastal State'sresource
jurisdiction zone.
3 64 AJIL (1970),1021-1023,
66 AJIL (1972),918-919. The States signingwcre Calombia, Costa Rica, Guate-
mala, Haiti, Honduras, Mexiw, Nicaragua, Dominican Republic, Trinidad and
Tobago, and Venezuela.The followingStates participating in the Conferencedid no1
sign: Barbados,El Salvador,Guyana, Jamaica, Panama. MEMORIAL ON THE MERITS 367
284. Accordingly, if is submitted that this concept of a patrimonial sea
must be viewed as a orooosal de le~eferenda. which the States concerned will
no doubt propose fAr consideration-at the forthcoming Third United Na-
tions Conference on the Law of the Sea, to be convened in April-May 1974 1.
Indeed, if one looks at the terms of the Declaration of Santo Domingo, the
operative word in pardgraphs 3,4 and 5is "should" not "is"; it is. on its own
terms, astatement of policy aims for the future and not a statement of existing
law. This view is reinforced bv the terms of the somewhat similar recom-
mendations which emer&d from the Regional Seminar of African States held
at Yaoundé from 20June to 30June 1972 2.These included a recommendation
to establish an economic zone and called UDOnAfrican States "Io uohold the
principle of this extension at the next internation Coanference O; the Law
of the Sea". ln fact Kenya has already subniitted Draft Articles on the Ex-
clusive Economic zone-Concept for- the specific purpose of placing this
matter before the forthcoming Conference 3.
285. Whether the proposals based on "the patrimonial sea" concept, or
other similar conceots. will cominend themselves to a sufficient maiority of
States to become law must be a matter of conjecture. Lt is clear that therewill
be opposition to them-and, indeed, already has been opposition to them-
not only from the traditional distant-water fishing States but also from
developing States who foresee that they may themselves become distant-
water fishing States in the not too remote future and from land-locked
States or other States for whom, by reason of their geographicdl situation,
the concepts hold no attraction. The merits of considerations such as these
are not, of course, questions in which the Court would wish to involve itself,
and those considerations are not matters which the Covernnient of the United
Kingdom would consider it appropriate to urge upon the Court. But they
do have a real relevance in emphasizing that the issuesare still far too open
for these new concepts to be treated asanything other than possible indica-
tions 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 not
represent the law now.
286. It is, in any event, not clear whether Iceland relies on this concept of
"the patrimonial sea". Indeed, claims based on that concept would differ in
several resvects from the claim actuallv formulated bv Iceland. ADart from
possible differences in the breadtli of thézone claimed,.the "patrimonial sea"
concept has no necessary connection with the continental shelf, whereas the
lcelandic claim appearsto rest upon a continental shelf doctrine. Nor does
"the patrimonial sea" concept necessarily envisage the degree of exclusivity
of fishingwhich the lcelandic claini does.
(v) The docrrine of "Perrnoneitr Sovereignty over Nafaral Resorirccs"
287. Closely linked with such concepts as that of "the patrimonial sea"
is the doctrine which has become known as the doctrine of "Permanent
1 Ceneral Assemblyresoluiion No. 3029(XXVII) of 18December1973.
A/AC.138/79; repraducedin Report of the Cornmitteeon the PeacefuiUsesof
the Sea-Bedand the OceanFluor beyondthe Limits of National Jurisdiction, Oflîcial
Records of the Generol Asse»ibly,l'wenty-seventh Session,Suppl. No. 21 (A18721),
pp. 73-80.
l A/AC.138/Sc.lllL.IO: ibicl.,pp. 180-182.Sovereignty over Na~iirîl Resoiirce\" 11should be made clear thal. except IO
thc eueni lh31 lhe doctrine is ïlleged IO hliw some beïring on the Iiiliils of a
coastal State's iurisdiction in fisheries matters in the watërs outside ils terri-
torial se;, the dovirnment of the United Kingdom are not concerned in this
Memorial with questions relating Io the true scope of the doctrine or with
arguments tending to establish or negate the moral or practicaljustification
for it or that otherwisego 10ils merits,.or with ils legal status and validity, or
with any other matters of that sort.
~ ~. T~. advocacv -, thedoctrine has a historv which roes back some vears
bu1 II ic only iriihin rcçcni m<~nihs-l<ing alter the.c procceding\ 1134bccn
in,tiiuicd-th3t anv nitemm has oeen insJe ILIextend il to deal \rith ~s,iicj of
the kind now befkre the- Court. The first occasion was during the 27th
General Assembly of the UnitedNations in 1972when a draft resoliition which
was put forward on the topic (in the context of the Report of the Economic
and Social Council) in the Second Committee-not, be it noted, in the First
Comniittee,which is the one that deals with matters relating 10the Law of the
Sea-contained an operative paragraph in the following terms:
"1. Reaffirms the right of States to permanent sovereignty over their
natural resources, on land within their international boundaries, as well
as those found within the sea hed and subsoil thereof within their na-
tional jurisdiction and in the superjacent waters."
289. Despite the strong reservations and indeed opposition that were
expressed to the obviously question-begging nature of the phrase "and in the
suverjacent waters". and desvite an amendment moved by Afghanistan (with
the support of a nimber of other States including man; of Ïhe land-locked
States), to record that decisions concerning States' national jurisdiction over
the territorial sea, contiguous zone, seabed and subsoil and the superjacent
waters belonged to the forthcoming Law of the SeaConferenceCan amendment
which was rejected in the Plenary Meeting hy 54 votes to 45. with 28 ab-
stentions). the draft resolution was adoDted hv the Second Coinmittee and
eventuall'ÿ by the General Assembly, bec'oming~eneral Assembly resolution
No. 3016 (XXVII). The voting in the General Assembly was 102in favour,
none ara-nst and 22 abstentions. ln due course a recomiiiendation containina
Iang.iïge in the sïmc cti'cct nïs adopied by thc Coiiiiiiittec on Naiural
Kerot.rcei oi the Econor~iic 3riJ So;ial C'CIU~C II 11,5Çb\.#)1111 SCU DeIli! in
Februarv 1973 1.and a resoltit~on in siiiiil3r trrm, hs ECOSOC ilsclf. iln the
recomméndation of ils Economic Committee, at ittsession in New York in
April/May 1973 2.
290. It ma? be araued-it is not clear whether the Government of lceland
would them~el~es wiçh t-~eo as far as this-that ~ ~ ~~ ~ ~var~~-~ resolutions and
recommendations constiiute legal authority for the present claim of the
Government of lceland to be entitled to extend their exclusive fisheries iuris-
diction over the waters embraced by a line 50 miles from the Coastof lceland.
If so, the following observations mus1he made.
291. First, whatever weight it may be desirable to attach to views ex-
pressed by the delegations of States in their discussion of instruments of this
kind in the forums in fact concerned,'resolutions of the General Assembly
passedin circumstances such as those of the instant case-and, even more so, MEMORIAL ON THE MER~TS 369
resolutions of ECOSOC and recommendations of the Committees of
ECOSOC-are not themselves capable of amending international law as
ex~ressed in the current practice of States and as embodied in a number of
inie~ ~ti-~al treaties.
292. Secoddly, these resolutions-or rather. this resolution,for in essence
they were al1 the same resolution-represented acomposite political package
dealin- with a number of tooics and coverinz a nu-ber of hinhlv~cont-.-
versal politiisl issue>.niost of \\hich hxd iheniselvcs no bexringon the qucs-
lion ùi niaritinle jurirdicriùiThc fast thai somc States found IIï\pcdirni on
those oarticular occasions to combine with other States to suuoort the
resolut;on is not a reliable indication of what their views are on th& issue of
maritimejurisdiction or how they will in fact vote on that issuewhen it cornes
uo sauarilv for decision bv itself in the cornoetent forum. that is, the next
Law of thé~ea conference:
293. Thirdly, the features of the resolution which are in question (that is,
those that bear on the limits of national maritime iurisdiction) did in fact
attract considerable opposition or misgivings at al1stages. The actual voting
figures on the resolution and on the various amendments that were proposed
did not-perhaps for the reasons of political expediency just referred to-
accurately represent the state of opinion on this matter as reflected in the
views that were in fact expressed on it in the various committees and in
ECOSOC and in the General Assembly itself.
294. Finally-and this point is of course connected with the point jus1
made-a study of the various speechesand explanations of vote delivered in
the course of the debates shows that it \vas well understood that, whatever the
resolution itself might be taken to rnean if literally construed, it \vas not
capable of prejudicing (and most States did not intend it Io prejudice) the
decisions to be taken by the Law of the Set Conference on what changes, if
any, should be made in the law relating to the limits of maritimejurisdiction.
Statements to that eflect were inade not only by those dclegations which
opposed or abstained on the vote on the controversial words, in the resolu-
tion (for example, the delegations of the United Kingdoni and of a number
of other countries, including many of the Iand-locked countries). They
were also made in very clear terms by a number of delegations who
actually voted in favour of the resolution. For exaniple. in the debate in
the Economic Committee of ECOSOC the Delegate of Finland said on
26 April 1973 1;
"His delegation would vote in favour of the draft resolutionas a whole,
despite ifs reservations regarding the formulation of some paragraphs. It
was adootinr such ~ ~ourse orimarilv to demonstrate its suooort of the
.~ ~ ..
principles iniolved and it didnot wish to Ict inappropriate wording stand
in the way of endorsement of those princi~les. However, he still hopd
that cons;ltations would take place with a "iew IO improvingsome ofthe
paragraphs and that the text would thus be adopted with the widest
possible support.
His Government viewed with sviiioa-.. the exce~tional situation of
Iceland. whose national economy was to such a crucial extent dependent
on effectiveexploitation of her marine resoiirces. He was fully aware that
nations engagid in fisheries wcre not al1on an equal footing. He wished
therefore to reiterate the cal1 his delegation had made on a number of
E/AC.6/SR.607, pp.23-24370 FISHERIES JURISDICTION
other occasions, when it had advocated special privileges for certain
States. In his view, developing coastal States as well as developed coun-
tries predominantly dependent on fisheries should be granted specific
privileges. There were in fact a few 'hard-core fishing nations' with
economies that devended primarily on inconie froni their fishing in-
dustry. It wasin that light that his delegation fully endorsed the prinn'ples
enunciated in paragraphs 1 and 6 of the text now before the Committee.
Nevertheless, his delegation's readiness to endorse the present draft
resolution as a whole should not be construed as prejudicing his Govern-
ment's position at the forthcoming Law of the SeaConference, at which
the relevant legal provisions would be established."
A nuniber of statements to a similar eKect were made by way ofexplanation
of vote when the Economic Committee of ECOSOC adopted the draft re-
solution: for example, by the delegates of the USSR, France, Canada, the
United States, Sweden, Uganda, Denmark, lndia, ltaly and Turkey 1. More
significantly, the delegation of lceland theniselves made clear their awareness
of the limitations within which the resolution necessarily operared. ln the
debate in the Second Comniittee of the Genernl Asseinbly on 29 November
1972 the lcelandic delegate said 2:
"The co-sponsors had, however, carefully refrained from touching
upon the legal issue of the delimitation of the arca of national juris-
diction; that question could only properly be solved by the forthcoming
Conference on the Law of the Sea."
295. Accordingly the Government of the United Kingdom submit that,
whatever might be the true nature and true legal effect of the doctrine of
Permanent Sovereignty over Natural Resources, it does not constirute any
legal authority for the action taken by the Government of lceland which has
given rise to these proceedings.
IV. Limitations 011rheJ~idiciol Fttnction
296. The nature of the arguments. actual or anticipated, which Iceland
might seek to adduce in support of ils claim makes it necessary for the
Government of the United Kinadom to make certain observations on the
limitations which are imposed upon the Court in the exercise of its judicial
function. As has been demonstrated above, whether based on the doctrine
of the continental shelf. or the notion of "oreferenfial ri-.ts". or the necessitv
for conservation, or théconcept of the "patrimonial sea", or the doctrine 'f
"Permanent Sovereignty over Natural Resources", the Lcelandic claim is
contrary to the established law and relies uvon a view of the law which is not
only a minority view but. above all, de ~e~eferei~da.
297. It is the submission of the Government of the United Kingdom that,
rather than take oreciuitate and unilateral action, lceland ouaht orooerly to
. . ....
have iiuaitcd the outconiç of the lorthcoiiiing I:nited S:iiion. C'onfcrencc'on
thc 1.au of the Sc3 \\hcrc ihe issuesof the brcîJih ~~fç\cli~si~efkhçrics zones.
fishing and conservation of the living resources of the hish seas.includina the
question of the special rights of coaital States, are the iery issues before the
' E/AC.6/SR.609,pp. 14-18.
2 AC.Z/SR.tSOZ, p. 12. MEMORIAL ON THE MERITS 371
Conference 1.The matters raised by Iceland are not unique to Iceland; they
are matters which concern many States and upon which action must be taken
by general concurrence rather than by unilateral measures. Indeed, no legal
system could survive if unilateral action of this kind, contrary to theestab-
lished law. were to be ~ermitted. As the Court has oreviouslv stated. a
faculty of msking a unilaterdl di,svo\ral of obligation saiinot be pcrniiited
". . In the ca<c of gcncrsl or cusioniir) 1.iitrules aiid oblig>rioni uhich, hy
their very nature, must have equal force for al1memhers of the international
community, and cannot therefore be the subject of any right of unilateral
exclusion exercisable at will by any one of them in ils own favour 2". Nor can
it be said that the history of the 1958 and 1960 Geneva Conferences justifies
lceland in assuming that agreement cannot be reached and measures agreed
to meet those needs of Iceland which the community of States as a whole
recognizes to be iust and deservinp of lenal-.rotection. The 1958 and 1960
~unferr.nces in fsct laid the bai!\ for gencrÿl rc<i>giiitl.rnof the validity of
ehcliiri~e fijhing ,one\. iip1,)a 13-niilc liiiiand \ubjeci to "hi>ti~ri: righti".
and many States acted on this basis and negotiated international agreements
to this effect: the Exchange of Notes of 1961 between tceland and the United
Kingdoni is a case in point. It inay well be that the 1974 Conference will
provide an even greater measure of agreement over new rules Io be incorpo-
rated into international law.
298. However, what a new Conference might agree about changes in the
existing law is irrelevant to the Dresent case before the Court. The Court's
functi'n under Article 38 of its Gatute "is to decideinaccordancewithinter-
national law such disputes as are submitted to it .. .".As the Court itself has
stated :
"As is implied by the opening phrase of Article 38, paragraph 1, of its
Statute, the Court is no1 a legislative body. Its duty is 10 apply the law
as it finds it,t to make it 3".
In the same case, the Court declined to innovate in the way suggested, saying:
"This would be to engage in an essentially legislative task, in the
service of political ends the promotion of which, however desirable in
itself, liestside the function of a Court of law 4".
This counsel of judicial caution is not to deny the creative function of the
Court in interpreting and applying the law; there may be many cases in
which it falls tothe Court to recognize and declare, on the basis ofthe practice
of States generally, some new rule of customary international law. In eîïect,
this is what the Court was able to do in the North Sea Conlinenroi Shey
casess. But what the Court cannot do is to accept and apply, as law, a
' GeneralAssernblyresolution No. 2750(XXV)of 17December 1970,para. 2.And
seethe United Nations SeabedCommittee's Listof Subjecisand Issues 10be discussed
al the Conference,dated 16Augurt 1972.Item 5 is the "ContinentalShelf"; item 6is
"Exclusive Economic Zone beyorid the Territorial Sea"; item 7 is "Coasial State
Preferential Rights or Other Non-ExclusiveJurisdictian over Resaurces Beyond the
TerritorialSea"; item8 is"High Seas"whichincludes"Management andConservation
of LivingResources".
2 Nuth Sm Conlinmral Shelîcases, LC.J. Reports 1969 ,p. 38-39.
South-WestAfrico case, SecondPhose, I.C.J.Reports 1966p ,p. 47-48
4 Ibida .tp. 36.
5 1.C.J.Reports 1969, p. lminority practice; and it is on such a minority practice that lceland now
relies. Moreover, in a situation such as the present, when these issues will
shortlv fall tu bedecided bv a Conference of States. there is al1the more reason
for the Court 10 confinc iiself s~rupul<iu~ly ritiis jiidici:il fiin:tion.
299 '1hc rccoon for ihir ir self-e\iJent It rrcll-e\prcsrcd hy Sir Ilersch
L.iuierri.icIii nhcn hc iirote of "the hd7srdi1ui coiirw of iii~iici~lle&!i\Istii)n" 1
and, speaking of courts i n g.eneral, said:
"They have Io apply-and no niore than that-the law. 11is not within
their province tu speculate on the law or tu explorethe possibilities of its
development. . . .
Secondly, courts have to apply the law in force. It is not their function
deliberately to change the law so as tu make it conform with their own
views of justice and expediency. This does not mean that they do not in
factshape or even alter the law. But they do it without admitting it; they
do it while guided at the same time hy existing law; they do it while
remenibering thar stability and uncertainty (sic) are no less of the essence
of the law than justice; they do it, in a word, with caution. The sanie
considerations apply tu the administration of international justice.
Moreover, there exist in this sphere additional reasons for the exercise
of restraint. These include, in the first instance, the importance of the
subject-matter on which courts have tu decide. They cannot experiment
or innovate as easily in matters in which States have an interest as in
those in which private individuals are concerned. If Governments are
not prepared to entrust with legislative functions bodies composed of
their authorized representatives, they will no1 be prepared tu allow or
tolerate the exercise of such activity by a tribunal enjoined by its Stature
to applythe existing law 2."
The decisions which States will soon have tu make in regard to the issues
before the forthcoming Conference will be decisions of the utmost conse-
quence. It would not be consistent with the judicial function of the Court for
it tu embark upon a course which would pre-empt or appear tu pre-enipt
those decisions.
V. TheJlidicial Floicrioir o,id Eqr~ily
300. 1t isthe submission of the Governnient of the United Kingdom that
by international law lceland can have no claim to exclusive fisheries, on the
basis of unilateral action, beyond 12 miles from agreed baselines. That, in
essence. is the first of the submissions of the United Kingdom 3.
301. ~he United Kingdom, however, makes a second submission 4 and
it is in relation to that second submission that the Court has an invaluable
function of a positive character-as opposed tu the negative ruling invited
from the Court by the first subniission. Thar function lies in the application
to the present dispute of equitable principles.
302. In relation tu a resource which is res commii~ris.no orobleni arises
so long ;a>that resourie i$ unliiiiitcJ. the pr.&iple .> rrcr.il,>i01'firhing cxn
he givcn 11.fiillesi e\preision in ihr. scnss of c,inililcic Irii><<ziirrr.. 14..trilic MEMORIALON THE MERITS 373
stace when that resource is in danger of over-ex~loitation. the basis for
- .
allowing complete freedom disappears and the notion that resources are res
commioris must transcend and predominate over the interests of any one
State, be it coastal or non-cc~astal.Such disputes as may arise between States
must then be resolved in a manner consistent with the interests of the com-
munity at large and in accordance with equitable principles. As the Court
has said on a previous occasion, "it is not a question of applying equity
simply asa matter of abstractjustice. but of applying a rule of law which itself
requires the application of equitable principles 1". Of the three basic rules
a. .ied in the North Sea Contit~entol Shelf cases. the first two are highly . ~
apposite in the present case:they are (1) the obligation to negotiate in good
faith so as to proceed by agreement and (2) the obligation to apply equitable
principles. taking al1 the ci~cumst;inces into account.
303. The third is not apposite, since it related specifically to the juridical
nature of the shelf and was distinguished by the Court from the issue of high
seasresources. The Court there referred to:
". . .the sovereign jurisdiction which the coastal State is entitled to
exe~cis~ and must ex~rc.~~.~no~ .nlv "ver t.e -e~ ~d underneath the
territorial waters but over the waters themselves. which does not exist in
resDect of continental shelf areas where 1I1ereis 110ji~risdiction OVerthe
sit~erjace,rr woters, und over the seobed on- /or prtrboses of e.rplorarion
alid e.rploitorioii2".
The Government of the United Kingdom accept the distinction between the
superjacent waters and the seabed which was made by the Court. This is the
distinction which, asshown earlier 3,is fundamental to the present law. There
is. however. another riile which may be apposite: that is, that high seas
fisheries resources are res commr,nis, and their conservation is a duty iniposed
on ail States. The body of State practice reviewed earlier 4 is evidence of this
rule.
304. It may be useful to indiclite, in greater detail, how the Government
of the United Kingdom, subject to the guidance of the Court, would under-
stand these three rules (that is to Say, the first two of those identified by the
Court in the North Sen Coniinentnl ShelJcases and the rulejust described in
para. 303 above), as applying to the present case.
(a) Theobligatio~t to negotiate
305. The obligation to negotiate in good faith can operdte in a meaningful
way only where the facts which form the basis ofnegotiations are objectively
assessed.Clearly, in the present case, there is no agreement between the par-
ties on the degree to which a conservation need exists. The United Kingdom
would regard the oblieation to neeotiate asreouirine it-and Lceland-to eive
every ass~stanceto the North- ai ttlantic$sher?es Commission in asier-
taining. on the basis of scientific evidence. the rcal need for conservation and
to accept and carry out the measures which that Comniission might indicate,
in accordance with Articles 7 and 8 of the 1959Convention 3.This it would do
' North Sea ConrinetrrolShercases,1.C.J. Reports1969,p. 47.
2 I.C.J. Reports1969,p. 37 (para. 59) (italics added).
A!iie,paras.233 n seq.
Aiiir,paras.269-274.
5 Thereis a scherneofjoint enforcernentto which lcelandand the ~nited'Kingdom
are parties: secpara. 102above.in good faith and with the utmost expedition, maintaining meanwhile any
interim measures which the Court might direct. Any agreement with lceland
should emhody these recommended measures, together with such other rules
or limitations as might emerge frorri a consideration of equitahle principles.
(h) Theobligation ta apply equitableprinciples
306. Although the Court has indicated that there are no legal limits to the
considerations which States might take into account in applying equitable
procedures 1, certain considerationç seem self-&vident.They are:
(i) The special position of lceland as a State dependent on coastal
fidieries in the sense of the resolution on Special Situations relating
to Coastal Fisheries adopted at the 1958 Geneva Conferencez.
(ii) The need to afford to Iceland such preferential share of the total
catch as would be equitable, taking into account the economic
dependence of al1other States interested in the fisheries.
(iii) The fact that Iceland has full opportunity for participating in the
management of the resources in accordance with the provisions of
the North-East Atlantic Fisheries Convention of 1959.
(iv) The need to take account of the established interests and acquired
rirhts of other States fishing in the area, with due weight being paid
tithe length of time for which those interests have b&n maintaincd
and those rights enjoyed and the economic implications of any
change in them for the communities whose livelihood may depend
upon them.
(v) The need to resolve disputes within the framework of estahlished
machinery, including that of the North-East Atlantic Fisheries
Convention of 1959,or by reference to arhitration or judicial settle-
ment, rather than by unilateral action.
(vi) The need to take account of al1 relevant principles of international
law which are of general application and which relate to the con-
servation of fishery resources, to preferential rights and to respon-
sihilities for good management.
(.) for the benejit ofall Stores, the conservationof whichis a drrtyimposedonrrce
al1States
307. This rule is overriding and, as will be apparent, it is essentially the
translation. into a ~rinciole oneratinr- in a universal context (so that it has
appliiati3n 2, hetur.cn XIIinir.rs,tcil Sistes). ofthdre ~.onsiJr.raiidns of cqiiity
which 3re liited above 3s applicable spccitiz~ll) het\ieen ihs C'niicd KingJoni
and Isel3nJ. Ilmean, thst the Unircd KinrJdr-i ~n,l IsclanJ niLit nç-oiiaie
not solely in consideration of their own interests but taking account of the
fact that the resources about which they negotiate are part of a common
heritage for which they have responsihilities as well as rights.
1 North Seo ConrinenlalShelf cases(I.C.J. Reports 1969, p50).
2 See riara.190 abave. MEMORIALON THE MERITS
PART V
COMPENSATION FOR INTERFERENCE WITH
BRITISH SHIPPING
308. As has been stated in paragraph 54 above, the Government of Lceland
instituted, very shortly after 1 September 1972 a campaign of harassment of
certain British fishing vessels.These are the vessels which, in exercise of what
the Government of the United Kinrdom submit is their riaht to do so and in
conformit) trith the Ordcr riiade byihe ~oiirt ibn 17~ugii; 1972,hsie lishcd
or hdve arienipied to fish on ihe Iiigh scli< iniidc the 50-mile line indicïtcd in
the Rcgiilai~ons oi 14July 1972 1.hut outsidc the 12-inile line establi<hed by
the txch~nge of N<>tcsof I9hl 2.This harassrneni c;irried out by Icelandic
s<i<i\tgusrd ies,el.; h:r\ continued uniil the date by uhich this .Mciiiori;il uds
conipiled J. In ihc begin~iiiig there nerc pcriods during tihiih iiu,as prcrred
lcss \igorously thm .luring oihcr,: in recent \recks. unforiun~tel), ithds bccn
waged with increasing intensity and violence.
309. The harassment conducted by the lcelandic vesselshas taken a number
of difierent forms. In sorne casesthey have merely ordered the fishing vessels
to haul in their nets and to leave the area, accompanying those peremptory
orders by the threat of penal sanctions against the fishing vessels if,having
failed to comply with the orders, they should ever find themselves within
Icelandic territory. Most British fishing vesselshave felt justified in disregar-
dinz these orders for which. in the subrnissi~~ ~ ~ ~ ~Government of the
~n;ed ~ingdom' the lcelandic officers concerned could claim no authority in
international law and which. in addition, were incompatible with the Order
made by the Court on 17AU& 1972.0ther British fishing vessels,however,
have understandably felt reluctant to expose themselves to the threat of
punitive action, a threat which, however improper it might be in international
law, the Icelandicauthorities could no doubt make effective, by virtue of the
Regulations of 14July 1972,and theearlier Icelandic legislation therereferred
to, ifthe vessels concerned ever found it necessary or expedient to visit
Icelandic ports. Those vesselshave therefore complied under duress with the
orders addressed to them by the coastguard vessels. They have thus been
impeded under threat of force rnoieure in their lawful right to fish freely on
the hi~h scasand hs~e ihcr'h? siiiTcrcd srrious niatcri.11prejudice.
310. In other c~scs.the ihreat eniployed by the Lcelandiçcoastguxrd \c>scls
10 back thcir srders to the fiihinx \ericls hns not heen a threai of e\cntual
Pen21sanction.; but rarher a thrs,it of ininiediate and \iolent interference by
the co~sïgi~xrd ve~.scIsihenisel\c.: uith the pcacefill ~<ciiviiicsof the lishing
vesseli. It has been a thrut. thsr i\ri>ssy.ihat. if the fishing vesselsJid ni>[
immediatel~ haul in their nets and depart from the ares,-the coastguard
vessels would forcibly cut their warps (that is, their trawl-wires) by sailing
across them with a cutting device. Lt will be appreciated that this is a tactic
which, if successfully carried out, will result in the loss by the fishing vesse1of
the gear involved and perhaps a valuable part of its catch. It can also produce
SecAnnex 9 to this Memorial.
Sec Annex A to the Aplicaiion insiituting proceedings.
SecDara.3 above.376 FISHERIES JURISDICTION
a situation of great danger to the life and limb of those on board the deck of
the fishing vessel. When warps are being hauled througb the water, they are
under great tension. When a warp under tension is cut close to the trawler,
it may whip back on to the deck of the trawler and cause deaths or serious
injuries among the crew. Even if the attempt to sever thewarps is unsuccessful,
it cannot be made without the coastguard . vessel indulging in dangerous
manxuvrer \iIiich ;ire <i,ntr;tg>411;icccprcJ rulei of gotid \e.inian,hip and
whi~h cannot f~il I<Iimperil ihe li\hini: i.c\,cl iticlfand thow on horird her.
311. As in the~ase~des~rihed in nardrr3Dh 3IO;ibi1vc. sonic Brittrh lirliing
vessels that have been faced with th& thriacol trawl-cutting have decided that
it would not be right to incur the risk to life and property that might be en-
tailed if they stood their ground and refused to be intimidated. Again, vessels
which have-understandably adopted this attitude and have been forced under
threat of violence to curtail their fishing in the area have thereby suffered
material loss and damage. Other British vessels, however, have refused to
give way to this kind of intimidation. In many cases they have, when the
threat has been put into practice, soughtto nullify it by taking evasive action.
In this they have from time to time been assisted by the defensive interposition
of other British fishing vessels who have been in the vicinity or one of the
civilian tugs or one of the vessels of the Royal Navy referred to in paragraphs
52 and 53 above. In most cases such evasive or defensive action has been
effective and the attempt to sever trawl-wires has either not been pressed or
has been unsuccessful. But in a number of cases it has indeed beensuccessful.
It must be added that there have also been occasions when the lcelandic
vessels have indulged in these attacks without giving any. warning to the
British fishing vessels concerned and without giving them the chance, even by
yielding Io the threat ofsuperior force, to avoiding being exposed to physical
damage and injury.
312. As pointed out above, the very attempt to carry out such an attack,
irrespective of its success, necessitates dangerous manoeuvres. On at least
three occasions these have resulted in minor collisions between a coastguard
vessel and a fishing vessel in which, though there was fortunately no loss of
life or personal injury, the fishing vessels have suffered some damage. In
addition to the damage inflicted on these vessels themselves and in addition
to the daniage directly inflicted when fishing vessels have actually had their
gear severed, in al1these cases (and whether or not the attack by the lcelandic
vessels was successful) the fishing vessels concerned-both those under
attack and those others who have come to their assistance-have been put to
substantial loss and expense by reasoii of the forcible interruption of their
peaceful fishing, as well as having been subjected to the indignity and danger
of unprovoked and unlawful attack on the high seas.
313. Unjustifiable as is the conduct just described, the Icelandic vessels
have not confined themselves to direct interference with fishing of that sort
but have also engaged. especially in recent weeks, in other and even more
violent and dangerous activities designed to drive British fishing vessels
out of this area of the high seas. They have, on a number of occasions, threat-
ened forcibly to arrest British fishing vessels on the high seas and on at least
one occasion (on 14 May 1973, in the case of the trawler Lord Alexander) 1
they have attem~ted thoueh unsuccessfullv. to out .hat~ ~reat into execution.
~hey have, on number of occasions, th;éatened to open fire with rifles on
the crews of British fishing vessels or on thosc of the civilian tugs and again
SeeAnnex 36 Io this Mernorial MEMORtALON THE MERITS 377
have carried this threat out 1, fortunately without causing injury to persons
or loss of life. Finally, they have threatened to open fire with their main
armament on British fishing vessels and on the civilian tugs and again they
have carried this threat out. sonietimes us in^blank shots. sometimes usinx
liveor solid shots. On one ockasion (on 26 ai 1973,in thecaseof the trawler
Everlon) an lcelandic vesse1deliberately scored nine hits with solid shots on
a single trawler. holine her badlv below the water line 2
314. There isset out in ~nn& 36 to this Memorial a fuller description of
the niore serious incidents that have taken place between 1 September 1972
and the date bv which this Me~norial wai com~iled2 in this cam~aian of
harassment of British nationals engaged in lawful'activities on the highieas.
Where possible that description includes an account of some of the material
loss that Ras thereby suffered by the British nationals concerned but that
account does not purport to be a final one. Each of these incidents has been
the subject of a fornial protest to the Government of lceland made orally, but
on exmess instructions from the Government of the United Kingdom. hy the
~rirish Ambassador in Reykjavik. In these protests the British~mbassador
has formally and ex~licitly reservedthe right of the Government of the United
Kingdom to seek prbper compensation indue course. In addition, the Govern-
ment of the United Kingdoni have thought it proper to reinforce these oral
protests by written notes of protest from time to time. Such notes of protest
have been delivered by the British Arnbassador in Reykjavik to the Ministry
for Foreign Affairs of the Govcrnment of Iceland on 23 September 1972;
18 October 1972; 23 January 1973; 7 March 1973; and 17 May 1973. Their
text is set out in full in Annen 37 to this Meniorial. In their replies Io these
protests, the Government of lcelnnd have in general made no attempt to deny
that their vesscls have committed the acts in question, though they have
occasionally contested the details of a particular incident. Nor have they
attempted to disclaim responsibility for these acts. On thecontrary, they have
expressly and repeatedly aiiirmed that their vessels have been acting in
accordance with orders given at the highest level of the Government of
Iceland and in pursuance of the considered policy of that Government. They
have asserted their intention to continue this deliberate useof force, against
unarmed fishine vesselsof another Stat~ ~~ the h~e~ ~eas. in theenforcement
of the purported exfension of their exclusive fishehes juriidiction.
315. In the subniission of the Government of the United Kingdom, the acts
of harassnient that have been described in this Memorial and that have been
carried out by the vesselsof the ~epublic of iceland on the direct alirhority
of the Government of lceland and in ~iiruorted enforcernent of the regulations
made bv that Government on 14 ~uiv 1972. are acts for which no authoritv
, ~ ~
or justification can be found in international law. They constitute the violation
of a fundarnental rinht of the Uiiited Kingdom in internationallaw whereby,
in the absence of agreed provision to the contrary which is binding on the
United Kingdom, its nationals may fish freely, and without interference by
the agents or officiaisof other States, in the particular area of the high seas
that is concerned in this case. This violation of the legal rights of the United
Kingdom has beencommitted by ineans of acts of arbitrary violence, danger-
ous Io life and linib and in fact productive of material loss to the Government
of the United Kingdom and to the British nationals concerned. In the sub-
mission of the Government of the United Kingdom it constitutes an inter-
SeeAnnex 36 to this Memorial
See para. 3 above.national delinquency for which the Government of Iceland are ohliged in
international law to make full reparation to the Government of the United
Kingdom. As the Permanent Court of International Justice said in its
judkent in the Chorzdw Foctory case (Jurisdicrion) 1: "It is a principle of
international law that the breach of an engagement involves an obligation to
make reparation in an adequate form." It is clear from the views which the
Court expressed in the Corfu Channrlcase 2that this principle is not confined
to cases in which there has been a breach of a treaty but includes any case
where there has been a breach of a duty owed in international law by one
State to another 3.
316. Accordingly, the Government of the United Kingdom now claim full
comoensation in resoect of these unlawful acts of harassment that have been
committed (or that may yet be committed before the judgment of the Co~rt in
this case) by the Government of Iceland in the enforcement or attempted
enforcement of the our~orted extension of their exclusive fisheries iurisdiction.
Thir ri)mpcnsario~ should. in the subnii,\i<in of the Ciovïrnmeni df the
Unircd Kingdoin, includc a sum reprc<cnting the ChpCnlCi Io trhich the
Governmcnt <ifthe llnited Kincdoni ha\ç thcniselvc\ bçen riut in ~rovldlng
assistance to British fishing vessels in the circumstances describid in this
Memorial. It should also reflect the injury done to the United Kingdom by the
dangerous, high-handed, arbitrary and grossly lawless nature of the acts
complained of. So far as it relates to the loss inflicted on nationals of the
United Kingdom, it should include a sum reflecting not merely the value of
the gear that has been lost bv the British fishinn vessels whose trawl-wires
hat,e~actuxllyhecn sc\,cred and the d3niagc ,uffcr;d hy those ves>el\rhat ha\.c
iictulilly bcen involi,cd in collisions \iith Icelandic coïstguard vcsscls or thst
have been damaged by gunfire but also the loss of profit and loss of earnings
suffered by the owners and crews of those fishing vessels and by the owners
and crews of other vessels who have, as a result of the tactics employed by the
lcelandic vessels, been forced or intimidated into curtailing their legitimate
activities in the area in dispute. It should also include a sum reflecting the loss
suffered by the owners and crews of British fishing vessels who have gone to
the assistance of other vessels that have been under attack and have thereby
themselves lost active fishing time.
317. The Government of the United Kingdom stand ready, at such time
and according to such procedure as the Court may subsequently indicate, to
furnish proof of the material damage which they and their nationals have
actually suffered and to provide particulars of the compensation which they
now ask the Court to declare payable by the Government of Iceland.
P.C.I.J.,SeriesA, No. 9, p. 29.
2 I.C.J. Reports1949, p.4.
3 Seealso Oppenheim,InrernafionaILow,8th ed.,Vol. 1,pp. 352-355 MEMORlAL ON THE MERITS
PART VI
FINAL SUBMISSIONS OF THE GOVERNMENT OF
THE UNITED KINGDOM
A. Surnmaryof Conclusions '
318. In the submission of the Government of the United Kingdom, the
material set out in the preceding Parts of this Memorial established the
following:
(a) As a matter of law, Iceland is not entitled to establish an exclusive
fisheries jurisdiction extending 50 miles from its Coast. Specifically,
lceland is not entitled to assert, as against the United Kingdom, an
exclusive fisheries'jurisdiction extending beyond the limits which were
agreed IO in the Exchange of Notes of 1961 or to exclude British vessels
from the area beyond those limits or to impose restrictions upon British
vessels in that area.
(b) There may now be a case on conservation grounds for the introduction
of some system of catch-limitation in the sea area surrounding Iceland,
though there is no evidence that the demersal stocks are in imminent
danger in the absence of such a system or that exceptionally severe
restrictions on catch from those stocks need to be introduced. Adequate
arrangements already exist, through the machinery of the North-East
Atlantic Fisheries Commission. established bv the North-East Atlantic
Fisheries Convention of 1959, for monitoring ihe need for such a system
and for establishinc. and.implementing an? suc~ system that is found to
be needed.
(c) Iceland is a coastal State whose people are specially dependent on the
fisheries in the area for their livelihood or economic development,
within the contemplation of the resolution on Special Situations relating
Io Coastal Fisheries adopted at Geneva in 1958.
(d) The United Kingdom is a State whose vessels have traditionally used the
fisheries in the area and whose fishing industry and ancillary industries
are heavily dependent on those fisheries. The United Kingdom would,
for that reason, sutïer substantial damage if British fishing vessels were
deprived of access to those fisheries. The United Kingdom's pattern
of domestic consumption of fish taken by British vessels from those
fisheries is also such that niaterial damage would be sutïered by the
United Kinedom if Britis~ ~ ~sels were deorived of access to them.
(e) By virtue o?lceland3s special as déscribed in subparagraph (c/
above, it is equitable that any such systcm of catch-limitation as is
referred to in subo.iaer-.h .,j above should eive lceland a oreferential
position. There is no case on conservation grounds or on grounds of
Iceland's special dependency for her seeking an exclusive oositiort. On
the .rounds of the United Kinedom's traditional interest and acauired
risliii iiiiiiJ ii.rrcrii ,lcpcn<lcn.'~oii ih6ke fi,heries. the I. niied ~.n;di>m
1seriiirlcd .i si.bstsnri.tl porirmn rhcrcin ior tlritlsh fishing $erscli.
(1' liel;tiid and ihc Ilnitcd Kincdoni arc bah undcr a dur\, ti, iieei>iiJie in
good faith with each other to establish, as between thenke1ves.a régime
for regulating the fisheries of the area which will: (i) include such restrictions on the exploitation of the resources of those
fisheries as are reauired on conservation -rounds. o. .ed b?
properly attested sciéntific evidence;
(ii) establish such a preferential ~osition for Iceland, in respect of an?
catch-limitation &rangements that are introduced Io give effect
to those restrictions, as is required by its special position as afore-
said; and
(iii)maintain such a oosition for the United Kinadom. in r-soect of any
such catch-limitation arrangements, as is necessary to give eRect Io
its traditional interest and acquired rights in and current dependency
on those fisheries.
(g) The negotiations between lceland and the United Kingdom, and the
agreement which should emerge from them, may be bilateral or ma?
involve the participation of other interested States but should in an?
event have regard to the interests of other States. The parties should
preferably make use of the rnachinery already established for that
purpose by international agreement, notably, the North-East Atlantic
Fisheries Commission established by the North-East Atlantic Fisheries
Convention of 1959.
Oz! In the ~hicnce oi ;in). ;xgrïeiiicnt enahling 11 tii th.11bchnlf. I~cllinJ ha\
nu jurisdsir~~an.iwr British fijhint: vcsrcl, in the sre;i. snd the Jiti!itlCS
b\. ihc (ioiernnieni of Ixlanrl \ihi..h arc refcrrcd ICI in I'ttri \'df thix
Mernorial (being activities intended~to enforce the Regulations of 14July
1972 against British fishing vessels) and any activities of a like nature
that mav~-e undertaken in f~ ~ ~ are un~ ~f~l. Soecificallv. thev con- ., .
stitute a violation of the rights of the United Kingdom in international
law and eive rise to a liabilitv on the Dari of the Government of lceland
Io makeCompensatio" therefor to the Government of the United King-
dom.
B. Submissions of the Government of the United Kingdom
319. Accordingly, the Government of the United Kingdom submit to the
Court that the Court should adjudge and declare:
(O) that the claim by lceland to be entitled to a zone of exclusive fisheries
iurisdiction extendine. -0 nautical miles from baselines around the Coast
of IcelaiiJ is \\ithoi.t I'oiindsti~in in inicrnlition;il Ili\\ and is in\ald;
Ib, thlir. lis ~g3in\i ihc linitcd Kincdsin. Icclsnd ,in<it entitled unil~ier3lly
Io assert anexclusive fisheries jurisdiction beyond the limits agreed Io
in the Exchange of Notes of 1961;
(c) that Lceland is no1 entitled unilaterally to exclude British fishing vessels
from the area of the high seas beyond the limits agreed Io in the Ex-
change of Notes of 1961 or unilaterally to impose restrictions on the
activities of such vesselsin that area;
(di that activities hy the Government of lceland such as are referred to in
l'art \'of ihis hlciiiori:~~. iIi.11i\to \a).. intcrfcrencc by force or thc [hrc:it
oi ior~.ewith Briii\h iishing vc<sclsoperliting in the sciid ;ireci of the high
seas, are unlawful and that lceland is under an obligation to make
com~ensation therefor to the United Kined~~ (the form and~am~u~ ~ ~ ~ ~ ~ ~
such compensation Io be assessed,fai~inga~reement between the Parties,
in such manner as the Court may indicate); and MEMORIAL ON THE MERITS 381
(r) thut. Io the çriçni 1h;ti ;, nec,! ii~i,r,rtçd on conjcrvJ1ii)n gri~undr. riip-
poricd by properly aiic~reJ ,;tentili~ c\iden<c. for the introd.i:iion i)f
rciir.it.i,nr.)n li\hing :icii\iiies in rhc ,*id 3rï.1 oi ihc high seab, I;rland
and the I!nited Kingclciii,ire iindcr .Idut) 10 t'xani.nc roycrht'r in good
1;iiit(cithcr hil.iter;ill~ or ti).zr.thcruiih other inicre\icJ Sidie\ >!ideiihcr
bv neh arranee-ents or throueh alreadv existine machin-rv for inter-
n;iiiiiii>l i~>ll~bur~iionin ihc\c iiiiiter, \.i<I.~i ihc S,irih.ta,t ,\tl~nric
ti<licric, <'<inlmiiii<lnJthe existcii2c iincic\rcnr oCth.~tncçd ntiiljtrnilirl?
to neeotiate for the establishnient of such a régimefor the fisheries of the
aforesaid. a oreferential oosition consistent with its oosition as a State
specially 'dependent or1 ihose fisheries and as will also ensure for the
United Kinadom a position consistent with its traditional interest and
acquired rights in and current dependency on those fisheries
31 July 1973.
(Signed) H. STEEL,
Agentfor riteCover,imenrof lhe
UrriredKi,ig<lom. Annex1
THEnEoNAS SUBMITTE DOTHE ALTHING
[Sec AnnexH ro rhe Applicarpp.45-47supra]
Annex2
GOVERNME NFTTHEUNITED KINGDON'ASID~-MÉMOI RE17JULY1971
[Sec Annex B ro the Applicalion,supra1
Annex3
GOVERN~IE NFTICELANDA'SIDE-MÉMOI RFE31 AUGUST1971
[Sec AtoicC ro rhe Applicariofr,supral
Annex4
[Sec Annex D to the Applicarioisupral5,
Annex5
RESOLUTIO ADOPTED EYTHE ALTHINGON 15FEBRUAR1Y 972
[Sce AnnexC 10the Applicatio>r,supra] MEMORlAL ON THE MERlTS
Annex6
GOVERNME NTICELANDA'SIDE-MÉMOI RE24 FEBRUAR1Y972
[See Arinex 10the Applicarion26, supra]
Annex7
STATEMEN READ BYMINISTE ROR FOREIGANFFAIR SFICELAND
ON 24 FEBRUAR1Y972
[Sec Anne.Ito rhe Applicario67,supral
Annex8
GOVERNME NFTHE UNITED KINGDOMA 'IDE-MÉMOI RFE14 MARCH 1972
[See Arn1eJto rhe Applicatio68, supra] Annex 9
Rcgitlurioirs cutrceririirgIlte FfsheryLimirs Off'Icela,id
Article I
The fishery limits ofC lceland shall be drawn 50 nautical niiles outside
baselinesdrawn between the following points:
1. Horn. ............ 66' 27' 4 N 22" 24' 3 W
2. Asbudarrif .......... 66' 08' 1 - 20" II' 0 -
3. Raudinupur .......... 66' 30' 7- 16" 32' 4-
4. Rifstangi ........... 66" 32' 3 - 16" 11' 8-
5. Hraunhafnartangi ....... 66" 32' 2 - 16" 01' 5 -
7. Glettinganes............. 65" 30' 5 - 13" 36' 3-
8. Nordfjardarhorn ........ 65" 10' O - 13' 30' 8-
9. Gerpir ............ 65' 04' 7 - 13' 29' 6-
10. Holmur. ........... 64' 58' 9 - 13' 30' 6-
II. Hvitingar ........... 64' 23' 9 - 14" 28' 0-
12. Stokksnes. .......... 64' 14' 1 - 14" 58' 4 -
13. Hrollaugseyjar. ........ 64' 01' 7 - 15" 58' 7 -
14. Tvisker ............ 63' 55' 7 - 16' 11' 3 -
15. Ingolfshofdi .......... 63" 47' 8 - 16' 38' 5 -
16. Hvalsiki ........... 63' 44' 1 - 17' 33' 5 -
17. Medallandssandur 1 ...... 63" 32' 4 - 17' 55' 6 -
18. Medallandssandur IL ...... 63O30' 6 - 17' 59' 9-
19. Mirnatangi .......... 63' 27' 4 - 18' 11' 8-
20. Kotlutangi .......... 63" 23' 4 - 18' 42' 8-
21. Lundadrangur ......... 63* 23' 5 - 19"07' 5 -
22. Geirfuglasker ......... 63" 19' 0 - 20' 29' 9 -
23. Eldeyjardrangur ........ 63" 43' 8 - 22" 59' 4 -
24. Geirfugladrangur ....... 63" 40' 7 - 23" 17' 1 -
25. Skalasnagi .......... 64" 51' 3 - 24" 02' 5 -
26. Bjargtangar .......... 65' 30' 2 - 24' 32' 1 -
27. Kopanes ........... 65" 48' 4 - 24" Oh' O -
28. Bardi ............. 66' 03' 7 - 23" 47' 4 -
29. Straunines .......... 66O25' 7 - 23" 08' 4 -
30. Kogur ............ 66- 28' 3 - 22" 55' 5 -
31. Horn. ............ 66'27'9-22°28'2-
Limits shall also be drawn around the following points 50 nautical miles
seaward :
32. Kolbeinsey .......... 67' 08' 8 N 18' 40' 6 W
33. Hvalbakur .......... 64" 35' 8 - 13- 16' 6-
Each nautical mile shall be equal to 1,852 metres. MEMORIAL ON THE MERITS 385
Article 2
Within the fishery limits al1 fishing activities by foreign vessels chall be
prohibited in accordance with the provisions of LawNo. 33 of 19Surie 1922,
concerningfishing inside the fishery limits.
Article 3
Icelandic vessels using bottoiii trawl, mid-water trawl or Danish seine-
netting are prohibited from fishing inside the fishery limits in the following
areas and periods:
1. Off the north-east coast during the period I April to I Sune in an area
which in the west is demarcated by a line drawn true north from Rifstangi
(Base-point 4) and in the east by a line which is drawn true north-east
from Langanes (Base-point 6).
2. Ofi the south coast during the period 20 March Io 20 April in an irea
demarcated by lines drawn betweenthe following points:
(a) 63" 32' O N 21' 25' OW
(b) 63" 00' O- 21" 25' O -
(cl 63" 00' O- 22" 00' O-
(d) 63" 32' O- 22' 00' O-
With these exceptions lcelandic vessels using bottom trawl, mid-water
trawl or Danish seine-netting shall be allowed Io fish within the fishery limits
in accordance with the provisions of Law No. 62 of 18 May 1967,concerning
Prohibition of Fishing with Trawl and Mid-water Trawl, cfr. Law No. 21 of
10 May 1969, or special provisions made before these regulations become
effective.
Article 4
Trawlers shall have al1 their fishing gear properly stowed aboard while
staying in areas where fishing is prohibited.
Article 5
Fisheries statistics shall be forwarded to the Fiskifélag Islands (Fisheries
Association of Iceland) in the manner prescribed by Law No. 55 of 27 Sune
1941, concerning Catch and Fisheries Reports.
If the Ministry of Fisherics envisages the possibility of overfishing. the
Ministry niay limit the nuiliber of fishing vesselsand the maxiniuiii catch of
each vessel.
Article 6
Violation of the provisions of these Regulations shall be subject to the
penalties provided for by Law No. 62 of 18May 1967,concerning Prohibition
of Fishing with'irawl andMid-water Trawl, asaniended. Law No. 40 of 9 Sune
1960,conçerning Limited Permissions for Trawling within the Fishery Limits
off Iceland under Scicntific Supçrvision, Law No. 33 of 19 Junc 1922, con-
cerning Fishing inside the Fishery Limits, as aniended, or if the provisions
of said Laws do not apply, to fines from kr.1,000.00 to kr.100,000.00.
Article 7
Theis Kcgiilsiion> arc pri>iiitilg;iiin ;ic:.>rJ.in<e\\III>(..i\\So. 44 oi
5 April 1948.Loncernins tlie Scicniifi< C<,n~sr\.iiiori ul Ille C'<~iil.nenr.ilSrislfFisheries, clr. LawNo. 81 of 8 December 1952.When these Regulations
become effective, Regulations No. 3 of II March 1961, concerning the
FisheryLimits offIcelandshallceaseto beeffective.
Article8
Theseregulations become effectivoen 1September1972.
Minisrry ofFisheries,14 July1972.
LtidvikJ~SEPSSON. MEMORIALONTHEMERlTS
Annex 10
GOVERNMENT OF ICELAND'S NOTE OF 11 AUOUST1972
No. 39
The Ministry for Foreign Afairs presents ils conipliments to the British
Embassy and has the honour to state the following:
In the discussions between representatives of the Icelandic and British
Governments in July 1972on the question of fisheries limits the lcelandic side
made quite clear its willingness to continue the discussions.
The Icelandic representatives laid main emphasis on receiving from the
British side positive replies to two fundamental points:
1. Recognition of preferential rights for lcelandic vesselsas to fishing outside
the 12-mile limit.
2. That Icelandic authorities should have full rights and be in a position Io
enforce the regulations established with regard to fishing inside the 50-mile.
lirnit.
As definite replies to these questions were not received the Icelandic
representatives did not find ilpossible to make any substantial modifications
of their proposals on fishing rights for British vessels. The Government of
lceland has now understood that important points of the questions discussed
between the Iwo Governments are meeting a more positive attitude than
before. Trusting that the aforesüid two fundamental items stressed by the
Icelandic side will be agreed to, the following is hereby stated regardinç points
stressed by the British representatives in the discussions:
(a) The lcelandic side is willing to discuss the possibility that the areas where
British vessels are permitted to engage in fishing should border on the
12-mile line in several regions. Areas closed to lcelandic trawlers as well
as to foreign trawlers would beexcepted. This is based on the assumption
that only two areas out of six he open to British vessels at a tiiiie, as
earlier proposed hy the lcelandic Covernment.
(b) The proposalsconcerning sizeof vesselsmight be rnodified so asto allow
ships of up to 180 feet in length or about 750-800 gr. reg. tons to engage
in fishing. Neither larger trdwlers nor freezer trdwlers and factory vessels
would be permitted to conduct fishing operations.
(c) The term of thc agreement would expire on 1June 1974.
The Ministry avails itself of this opportunity to renew to the British
Embassy the assurances of its highest consideration.
Ministry for Foreign Affairs.
Reyjavik, II Auyust 1972 Annex 11
GOVERNMEN OF THE UNITEDKINGDOM'N SOTE OF 28 AUGUST1972
No. 49
Her Britannic Majesty's Embassy present their compliments tothe Ministry
for Foreign Anairs and have the honour to state that Her Majesty's Govern-
ment have received and considered the decision of the International Court of
Justice dated 17 August 1972, concerning the provisional measures Io be
applied pending its final decision in the proceedings instituted by Her
Majesty's Government on 14April 1972, against the Government of Iceland.
In submitting their request for provisional measures Her Majesty's Govern-
ment made it clear that whatever the Court's decision they would CO-operate
in carrying it out. This they will now do. In particiilar, !Ter Majesty's Govern-
ment will shortly furnish the Court, and at the same time the lcelandic
Government, with al1 relevant information, orders issued andarrangements
made concerning the control and regulation of fish catches in the area
referred to in theecision of theCourt.
Her Majesty's Government would be glad to discuss the position with the
Icelandic Government at the earliestutually convenient date.
The Embassy avail themselves of thjs opportunity to renew ta the Ministrv,
for Foreign Alfairs the assurances of their highest consideration.
British Embassy, Reykjavik.
28 August 1972. MEMORIAL ON THE MERITS
Annex 12
GOVERNMEN TF TCELAND 'OTE OF 30 AUGUST1972
No. 42
The Ministry for Foreign.Aff;iirs presents its compliments to the British
Embassy and has the honour to refer to the Enibassy's Note No. 49 of 28
August 1972.
The Ministry has the honour to state that the Government of lceland has
infornied the InternationCourt of Justice that itl not consider the Order
of the Court as binding in any way since the Court has no jurisdiction in the
matter. On theother hand the Government of Iceland, as already indicated in
the Ministry's Note of II August 1972. is prepared to continue efforts to
reach a solution of the problems connected wirh the extension of the Icïlandic
fishery limits in conformity with the Resolution of the Althing of 15 February
1972.
Thc Ministry for Foreign Affairs avails itself of this opportunity to renew
to theEmbassy the assurances of its highest consideration.
Ministry for Foreign Affairs,kjavik.
30 August 1972.
British Embassy, Reykjavik. Annex 13
MEMORANDUM HANDEDOVER BY MINISTER FOR FOREIGN AFFAIRS
OF ICELAND ON 19 JANUARY 1973
During the last round of negotiations between British and Icelandic
representatives on the fishery question in Reykjavik on 27-28 November 1972,
the British representatives submitted a new proposa1 in the final stage of the
negotiations. This proposa1 was in substance similar to the former British
proposals during the negotiations in London. The proposal is based on a
catch effort limitationi.e., ils objective is to lisomewhat the size of the
catch effort of British vesselsin the lcelandea.
This proposal was rejected by the lcelandic representatives at the meeting
in Reykjavik on 28 November. The main reasons why the lcelandic Govern-
ment does not consider that this proposai can solve the problems involved in
a satisfactory inanner are:
1.According Io this proposal al1 British fishing vesselswould be able to
fish up to the 12-niile liniit around Iceland at any time. The lcelandic small
boat fleet would then be in the sanie position as it was before the fishery
limits were extended to 50 miles. It would then be faced with a foreign trawler
fleet of great dimensions at al1 times including the largest and most efficient
trawlers now in existence.
2. The control of the effective operation of the catch limitation scheme,
i.e., that the agreed rules would be effectively applied, would in Our opinion
be very difficult and almost impossible. The catch limitation involved in the
proposal would apply to the number of days which each individual vessel
would fish in the lceland area. The basis would then be the number of days
of absence from port in the United Kingdom. The number of days can be
checked in British Dorts but it would be imoossible to check the number of
days which each ship in each voyage would spend in the Iceland area or in
Greenland, the Faroe Islands or Bear Island, because it frequently happens
that the vesselsno to more thaii one of these areas durinn the same voyage.
The effort limitation based on this procedure would, therifore necessarilybe
very unclear and would arouse suspicion, apart froin the fact that it would
be very difficult to reach agreement as to the evaluation of the actual effort
of each vessel.
3. The reduction of the effort anticipated in the proposal would in Our
opinion be much too small. Sir Alec Douglas-Home has now advanced the
idea of adding to theproposal of the British representatives at the Reykjavik
nieeting the restriction thaone of the six fishing areas around the country
would be closed on a rotation basis in addition to the effort limitation pro-
posal. This idea in our judgnient changes very little. On the one hand the
closed area in question would be too restricted to have any real effect forr
small boat fleet and, on the other, the ~eriods oroposed in the areas are nOt
acceptable. We, theiefore, consider thai the forme; proposa1regarding catch
effort limitationtogether with the idea of closing one area would not forma
basis for negotiations.
In conjunction with this conclusion itniight be helpful to summarize the
main points of our latest proposals and add a few comments: MEMORIALONTHEMERlTS 391
1. We propose that three areas out of six should be open simultaneously.
This means that approximately one-half of the fishing grounds outside
12 miles would be open at any fime and through rotation al1 the areas
would thus be open for some time throoghout the year. Such areas of ac-
tivitv would he so extensive that thev should orovide the vessels with eood
-~ - -
catch possibilities. Restrictionsfor ihe benefit of the lcelandic small boat
fleet in the three open areas would be limited and would also apply to the
lcelandic trawlers: This svstem would ~rovide the lcelandic S~~I ~~ ~ ~ ~
fleet with protection againrt foreign trawlers for a considerable period of
tinie each year.
2. We propose to reduce the British trawler flcet in the Iceland area and in
that iiianner reduce the effort. Therefore we suggest that freezers and
factors ships would not be allowed to fish within the 50-mile limit. In 1971
25 British vessels of thist..e were used in the area althouch -heir catch
uas Iiiiiiic(l dnd the). iiioitishcd In inorc disi;ini 3re:ii. \Ve also uani to
sec six Iiniitaiions on oihcr ve,sels and in thai ionneLtion rrc h3\e pru-
poscd the iltaxiniuni len~ih of Id0 fcetor 750-500 gr.[. In this maniiçr thc
niimber of vcs\elj fishtn~ in Iceland uotild bc rcduced by about 40 vei\el.:
as comparcd uiih 1971. Thcse.#'csscls did no1 c~clusively fish. they can
easily use other grounds. We consider that under these proposals 120-130
British vessels which fished in the area in 1971would continue their fishing
for the duration of the agreenient. These would actually be the vessels
wliich mostly frequent the Lceland grounds and have the least possibilities
of fishing elsewhere. It is clear that these proposals would imply some
reduction of the fishing possibilities of British vessels, butsuch reduction
would not at al1be of the magnitude claimed by the British representatives.
The proposal would mean rhar 120-130 vessels would continue to fish,
Le., the vesselswhich to the greatst extent have fished here, ttrat 25 freezers
which have fished to a limited entent here would no1continue and rhor40
vesselswhich have fished to a considerable extent woiild also be excluded.
Those vesselshave also used other grounds and can easily do so because
of their size.
3. We also want to ensure that the lcelanders have the right and possibility
to control the application of the agreed nieasures.
4. We propose that the agreement would be in force until I September 1974.
It is emphasized that the lcelandic Governnient would be ready to resume
negotiations on the basis of the proposals which we have submitted. Biit itis
deemed IO be of little use to resume formal negotiations in the absence of
developments which facilitate agreement. MEMORIALON THE htERlTS 393
an arrangement 10 give eiïect to it. You indicated to Sir Alec personally and
also to Lady Tweedsmuir during the formal negotiations that a possible
objective might be an arrangement which would leave the British industry
with the opportunity Io take up to 75 percent. of its 1971catch. As Sir Alec
said in Brussels, the British Government would be prepared to conclude an
interim arrangement on this basis, pending a substantive settlement of the
dispute. He thcrefore proposes that discussions be resumed at an early date
with the task of establishing whether it is possible to devise an arrangement
which can reasonably be expected to produce this result.
Sir Alec Doiiglas-Home will be informing Parlianient fully about the
Government's policy in this dispute this afternoon, including the exchange
between you and him in Brussels. MESSAGE FROM SECRETAR YF STATE FOR FOREIGN AND COMMONWEALTH
AFFAIRS TO MINISTERFOR FOREIGN AFFAIRST , RANSMITTE BY BRITISH
EMFJASS IN REYKJAVIK ON 8 MARCH1973
The situation has taken a serious turn for the worse. The number of dan-
gerous incidents involving Ourfishing fleet has now reached an unprecedented
level.1would like Io remind you of the proposais which, al your request,
1 made to you at the NATO Meeting last December.1 know that you have
said that they are unacceptable, b1 am convinced that the only way of
dealing with this dispute in a reasonable fashion discussion and nego-
tiation. 1therefore ask you to agree to the resumption of negotiations at an
early date. In the meanwhile,rust that the lcelandic Coastguard will cease
its harassment of British trawlers.
If we cannot soon resumenegotiationsee no alternative to a deteriorating
situation. You will haveen that 1told Parliament today that Her Majesty's
Government remains ready to take whatever action is necessary to protect
British trawlers inirsuit of their lawful activities. MEMORlALONTHEMERtTS
Annex 16
STATEMENT MADE TO HOUSE OF COMMONS BY SECRETARY OF STATE FOR
FOREIGN AND COMMONWEALTH AFFAIRSON7 MAY 1973
1. British and lcelandic Ministers met in Reykjavik on 3 and 4 May.
2. The meeting was based on talks held by officiaion 22 March, during
which it had been agreed to work for an interim arrangement, without
prejudicc 10 the legal position of either side. This interim agreement would
prevent overfishing, let lceland increase her share of the catch, piovide for a
reasonable British catch, and avoid a recurrence of incidents. lt would be
based priniarily on a limitation ofthe tonnage of fish caught by British vessels
without a corresponding restriction on lceland vesiels. The Icelandic Dele-
cation asked for additional restrictions on the numbers and tvoes..f vessels
:ind the ares in uhicli the! untild operaie. II xas agreed ihat thcsr \houlJ
be roniidered bill ihat il~ci,iiaI eiTcci of ihe srrangemeni should na be such
as to prevent the British fleet from reaching the ag;eed catch figure.
3. At the Ministerial talks this agreement was con'rmed by both Dele-
gations. The British Delegation recalled that the international Court of
Justice in ils lnterim Order of 17 August 1972 had indicated a catch limit of
170,000 nietric tons. Ln the interests of reaching a settlement, the Delegation
proposed an annual catch limit of 155,000 tons. The lcelandic Delegation
vrovosed 117.000 tons. It was anreed to work within this range. The British
. . - -
Dclegaiii)n ihen oifcred a rcii,ed figdre of 145,000 luna. rcpre\enting 3n
appro\iiii;iteiiiid-pointbctuccn ilie I:el,indiciigiire anil ihdi eiiabli>heil by
the International Court. The lcelandic ~eleeatio> refuscd. however. Io make
any fiirther offer.
4. The Icelandic proposals for restrictions on areas and vesselswere also
discussed. Thc British Delenation out forward soecific counter-orooosals on
. .
al1 piinii In th< ab,înce of sçreciiicnt on ihc :cntr;il queiiiiin of tonnase it
iras ltl~p~~ii~bIO settle ihcsî niaiter\BLI Icelsndic \linisters have agrced to
studv the British orovosals carefullv. +
5:Despite constant and danger& provocation, the British Government
has sought by every means IO reduce tension. We shall continue to do so.
Lf the lcelandic Government are determined to attempt Io impose their will
by force, the British Government will continue to give British vessels such
support as may be necessaryto enable them to fish in al1areas up to the pre-
sent lcelandic 12-niile limit. Butif the lcelandic Government will enter into
real negotiations. thev will find us readyIo work for a settlenient. Annex 17
BRITISHCOUNTER-PROPOSA FOR AN INTERIM ARRANGEMEN ATS PUT
FOR~ARD IN WRITING AT THE END OF DISCUSSIONS
IN REYKJAVIK ON 3 AND 4 MAY1973
The British proposais are based upon the agreed statement reached at the
meeting of officiaison 22 March, and confirmed by Ministers on 3 May.
2. According to this agreed statement, an interim arrangement should be
based prinlarily upon liiiiitation of the tonnage of fish caught by British
vessels in the area under dispute; and the total efiect of the arrangement
should not be such as to frustrate the possibility of the British industry
reaching the agreed catch limitation.
Catch Limit
3. Against this background, the British delegation piit forwardthe follow-
ing response to the specific further points raised by Lcelandic Ministers. The
~rimary issue is the catch limitation figure. The British delegation recall that
British-vessels are at present authorized, pursuant to the interim order of the
International Court of Justice, to catch 170,000 tons annually. The British
delegation have proposed a figure of 155.000 tons in the present context.
They could not contemplate a figure as low as 117,000 tons, but are prepared
to seek agreement on a figure within a range riinning from 117,000 tons to
155,000 tons. In an effort to reach agreement, they expressed their willingness
to move to a figureapproximately mid-way between the 1.C.J.figure and the
lcelandic figure, i.e.. 145,000 tons.
Areo Closi<re~
4. The British delegation consider that, once agreement has been reached
on a catch limitation figure, it should be possible to work out the remaining
orovisions of the aereement in a way Com~atible with it. The Drecise ar-
i;ingcniciiis aould ilrpend jn the bxl~n~e<>idrii .inJ i,r.,<elrc\trictiont. Thc
Icclindic Liclc~.ir.uhs\e e\pl.iineJtlidiihcir pr.>pst.il> are inten.lcro he
ci>nip:,tihlc uii;ilic~re of I17.0011ions Th- I3riiibdelcg.ii.<~nrecdgnilc ihe
~l~lIi:~.l01'!niakingprcci,e C~ICLIIJII~ UVth~e eiTccCI<ihe,c liieajurc~. l'hcy
c,tnriilcr. ho\rcrcr. th..t..ilch Iiniir~Ii.>ni.f IJj.00i,iiitid~ld he c,>rii-
patible with rotating area closures on the following basis:
1 ConfirniingBritishcounter-proposaiwhich had been made during the course of
the discussions. MEMORIAL ON THE MERITS 397
It would not be possibie to add significant small boat area closures without
frustrating this figure. The British delegation could envisage. as an alternative
to the rotating cÏosures, the followin~small boat area closures:
(a) North-west area as proposed by Iceland but open ta British vesselsfrom
September to December.
(b) North area as proposed by Iceland, but open in July and August.
(c) Eastern area to be closed al1year but reduced in size Io run from the
southern boundary north to Dalatangi.
VesselRestrictions
5. If the Icelandic delegation are prepared to accept either of the above
systems of area closures, or any combination of such measures which will
Droduce the same effect. the British deleaation will be ore~ared to seek the
concurrence of the ~ritiih industry in a limitation of ~rkish vesselsfishing in
the disputed area to a total of 150 compared with the current total of 195.
Under~such an arraneement. no freezer trawlers would ooerate within the
disputed area and ablut 20 non-freezer trawlers would be éxcluded.Factory
vessels are in any case not operated by the British industry.
Dirration
6. The British delegation have proposed three years. As part of a generally
satisfactory agreement, they would be prepared to compromise at 2%years,
to be ernbodied in the following formula:
"The agreement will run for a fixed term of 2+ years, but the parties
will reconsider the position before that term expires unless there has in
the meantime been a settlement of the substantive dispute. In the
. absence of such a settlement, the termination of the agreement will not
affect the legal position of either party with respect ta the substantive
dispute."
7. The British delegation are prepared to agree to lcelandic checking and
inspection of British vessels in the disputed area, but not to an lcelandic right
of arrest or prosecution under lcelandic law. They would be prepared to
work out in addition a further scheme of joint enforcement through an
Icelandic-British Commission in order to ensure full compliance with the
agreement.
4 May 1973. Annex 18
UNITEDKINGDOM, ICELANDIA,D TOTALCATCH OFDEMERSA SLPECIES
IN THE ~CELANDAREA MEMORIAL ON THEMERITS 399
Source: Columns (II), (IV) and (VI) from Bulierinsralisriquedespéchesmaritimes.
Figures for 1971from Bulletinsrarisriquedespéches rnoririmes,1971 (advance release):
no1 yet published. Columns (III) and (V) by calculation.
Nores:
(1) Figures of catch for 1920-1935 given above include al1 species. Figures for
1936.1971 include only demersal species. United Kingdom fishing vessels catch only
demersal fish at Iceland. .
(2) For the period 1920-1924 figures of individual country catches also include fish
caught by foreign vesselsand brought inIo acountry either asdirecl landingsor imports.
(3) Catch figures for the United Kingdom during 1925-1927include fish caught by
foreign vessels Ianded in Scotland.
(4) Catch figures recorded by country for the period 1928-1971 cover only fish
caught by vesselr klanging to that country regardlas of place of landing.
(5) 1936: Bulletin srorisriquedes péchesmoririmer notes that "The statistia of
Iceland have been subject to great improvements in recent years; any comparison over
a series of years, therefore, shoulbe treated with some reservation".
(6) 1937.1949 (inclusive). Far6e Islands-figures incomplete or missing.
(7) 1939-1949 (inclusive). Poland-figures no1 available.
(8) 1939 and 1945. Figures for Scotland only; figures for the rest of the United
Kingdom not available.
(9) 1945 and 1946.Germany-figures no1 available.
(10) Weights of fish are given. in accordance with the practice adopted by the
International Council for the Exploration of the Sea("ICES') and other international
fisheries organizations, as "catch" weights, thatis toSay, the weight of fish actually
caught. In some other tables they are given as "landings", that is 10 say, the weight
offish landed. The latteris a srnaller figure since the fish are lightened by king gutted
at sea. In practice the fish are weighed on landing rather than on king caught and the
catch weight is obtained from the landed weight by applying a known factor for each
species of fish depending on ils anatomical characteristin. Very approximately, for
most demersal species catch weights are 18-20 per cent. higher than landed weights.
Catch weights are given in metric tans. Landings are generally quoted in hundred-
weights or long tons, but for the sake of consistency in these statistical Annexes lhey
have been converted ta metric tons using the conversion factor 1long ton =).O16 metric
tons.Annex 19 MEMORIALON THE MERITS
Derneiral Specier
916 ,947 19.8 1949 1950 1951 iW2 1953 1954 19s iWl6 in7 l9m 1959 >Pb0 >Pd> Wb2 ,963 IV61 Wb5 IPM 1967 ,968 !Pd9 1970 1971
khixrn hrcciBulkfin Sfafirliquedes Pecher~iritimer Annex 21
NUMBER OFCOD OfEACHAGECAUOHT AT ICELAND, 1970
(in millions to therest 100,000)
Noii-spawninghshery Spawning Total fishery
Aze fishery
in years
d-i.-i--r- -land United1hland Others1 Total
Kingdom Kingdom
---
3
4
5
6
7
8
IO
II
12
andover
--_ __-----_-------___--- _
Total 56.9 26.6 11.4 94.9 ,33.1
- - - -- - - - - - - - - - - - - - - - - - - - - - - -
MeTons 130,508 83,539 36,033 250,080 224,797
- -- - - - - - - - - - - - - - - - - - - - - - -
Mean
Age 5.1 48 57 1 5.1 7.2
+ Less than 50,CGû.
SourceFrom papers of the ICES Northwestern Working Group. MEMORlALON THE MERITS
Annex 22
TOTAL CATCH OF COD INICELANA DREA(ICES VA)
su ALLCOUNTRIR EESLATE DO RELATIV YEARCLASS
STRENCTH
Y...CI.., .
Source: Compiledby M.A.F.F. FisheryLaboratory,Lowestoft
from I.C.E.S. statisticaldata
Drawn bySurveySection, Ministryof Agriculture,FisheriesandFood.
0 CrownCopyright1973 FlSHERlESJURISDICTION
Annex23
HERRING :ATCHBY ICELANFROM ALLICES REGIONS MEMORIAONTHE MERITS 407
%
- "51 ;ec*&$Rsassw--\p"??
.s!e,2
: g a ~ ~ ~ ~ ~ ~ ~ 4 * 2 =
n w n
5 =xaa--Z_+; I I I
V1 ~ g ~ ~ i i l l l i l l
a
s li~illlillil
2 ~OOO~OOo~~11
%?.~??.?\p?.?~
- o g ~ ~ ~ ~ ~ a ~ ~ - -
6 l i l"O.?"Xz~8 - l
--
-
z *.zgz~?~llll
- lIllll~iiill
d
............
4134gz552i3e5 WC- 3 3 MEMORIALON THE MERITS
Annex 26
TOTAL CATCH OF NATIV ICELANDS IPAWNINO HERRINO
('00 0 etric tons)
Spring spawners Summer spawners
Grand
Year total
North South Total North South Total
toast coast coast toast
1957 ...... 69.0 13.5 82.5 13.4 9.4 22.8 105.3
1958 ...... 72.9 10.8 83.7 9.8 23.7 33.5 117.2
1959 ...... 135.2 14.7 149.9 21.3 13.7 35.0 184.9
1960 ...... 98.8 19.0 117.8 17.9 10.6 28.5 '146.3
1961 ....... 169.5 42.0 211.5 3.9 70.1 74.0 285.5
1962 ...... 220.3 59.9 274.2 2.4 90.5 92.9 373.1
(sic)
1963 ...... 71.4 32.9 104.3 8.2 122.1 130.3 234.6
1964 ...... 65.2 36.3 101.5 3.9 82.6 86.5 188.0
1965 ...... 25.2 43.7 68.9 2.9 120.0 122.9 191.8
1966 ...... 13.7 11.3 25.0 2:6 51.8 54.4 79.4
1967 ...... 2.4 12.9 15.3 0.4 67.3 67.7 83.0
1968 ...... 0.1 4.2 4.3 - 16.8 16.8 21.1
1969 ...... - 3.6 3.6 - 19.4 19.4 23.0
1970 ...... - 0.4 0.4 - 15.9 15.9 16.3410 FISHERIESIURISDICTION
Annex 27 MEMORIALON THE MERlTS
Annex 28
U.K. DISTANAND MIDDLE WATER FISHINGROUND IS
RELATIO NOICES AND ICNAF STATISTICAREGIONS
(scepp.412-413)U.K. Distant and Middle Water FishingGrounc
ICES and ICNAF Statistical Region
(The ICNAF area is denoted by Arabic numerals, ICES Annex 29
Agriculture .........
Fishing............
Manufacturing
ofFishprocessing .......
Other .........
Construction .........
Electricity,gas, water,et...
Transport andcommunication..
Otherservices.........
-- - - - -
Total ............ -Oû.O(a) 1-0.0 -00.0 -Nï.O -W.O
(a) Roundedfigure.
Source: OECD EconomicSurveys:"lceland",March 1972, p.7, table 1. MEMORIALON THE MERITS
Annex30
GROWT IH GROSS NATIONAP LRODUCT 19, 6TO 1971
($US thousandmillionor 1963prices and 1963exchongerate)
USA ......
EEC ......
OECDEurope ...
UnitedKingdom
Denmark ......
Sweden ......
Iceland ......
SourceMain Economic Indicator, ay 1973:OECD,p.150. Annex 31
(1) (2) (3) (4)
Numberof Receipts
~ourists Receiprs per 1,000
inhabilanrs
("w ($million) $
Jceland............ 44.1 4.0 1,920
UnitedKingdom ...... 5,821.0 862.0 1,567
United States ......... 12,347.0 2,058.0 1,013
Japan ............ 511.9 148.0 1,505
ltaly ............ 12.086.8 1.632.0 3.270
Suurco Colurnnr12)and O) Irom table 155of the Ut8rud.Varto»rSr<,rrrr,n~Yletirhook
1970pi.blishrdhy ihr SiaiiiiicOiiizçof the Uniicd Saiions inNcw York. Column(4)
bycalculaiionbascdon pop~laiii>nfigurer cont~inrdin table 18. MEMORIALON THE MERITS
Annex32
LANDINC IN THEUNITEDKINGDOM BY UNITEDKINCDOM VESSELS
nnnnnoorroor Annex33
SUPPLIESFFISHTO THEUNITEDKINGDOM MEMORIAL ON THE MERlTS
Annex34
AVERAGE ANNUALLANDINO OSFDEMERSAF LISHIN THE
UNITEDKINGDOM1 ,967.1971, aY AREA OF CAPTURE
Qunntity Percenrogeof lofai
(000 metric fans) demersallandi~rgs
Distant- Worer Grounds
Iceland ......... 147.7 20.4
Barents Sea ....... 91.1 12.6
Norwegian Coast .... 58.9 8.2
Bear Island/Spitzbergen. , 16.1 2.2
Newfoundland ..... 13.7 1.9
WestGreenland ..... 6.5 0.9
Labrador ........ 4.4 0.6
Gulf of St. Lawrence ... 0.9 0. I
East Coast of Greenland . 0.3 O.1
- 339.6 . -- 47.0
Middle and Near- Wafer Grounds
North Sea ........
West Scotland. .....
Faroes .........
Irish Sea ........
English Channel .....
BristolChannel .....
Rockall ........
West and South of lreland
Skagerrak .......
-- -
-83.3 -52.9
-22.9 -00.0 (a)
(a) Rounded figure.
Soi~rce: Sea Fisheries Statistical Tables, 1967-1971. Ouantities shown are
landed equivalent weight, i.e., head on, gutted, plus livers. An adjustment has
been made to the figures obtained from the Statistical Tables-which do not
include livers-so as to present the table on the same basis as Annex 32. All
weights have been converted from cwts. to metric tons. See Note (10) on
Annex 18.FISHERIESIURISDICTION
Annex 35 MEMORIALON THE MERITS
Annex36
MAJOR INCIDENTS IN THE ICELANDIC CAMPAICN OF
HARASSMEN TF BRITISHVESSELS
5Seprember1972. On the morning of 5 September, the Icelandic coastguard
vesselAegir approached the trawler Perer Scorrat a position approximately
66-47' N., 21' 03' W. At 1056 Greenwich Mean Time (GMT), the Aegir
passed across the stern of the trawler and cut one warp. The trawl and the
catch were recovered by the Perer Scorr.Repairs to damage on the Perer
Scottcost f150.
12 Seprember1972. On the morning of 12 September, five British trawlers
were fishing at an approximate position 65' 49' N., 24" 40' W. At 0930
GMT, the lcelandic vesselAegir approached them and warned the skipper
of the trawler SSAFA that he was fishing within lcelandic fishing limits.
adding that, if he did not haul his gear, the Aegir would take action for
which he would be sorry. The skipper of the SSAFA hauled his gear al
approximately 0941 GMT. The Aegir then gave the other trawlers a similar
warnine. The other trawlers refused to haul. The skio~er of the trawler
1.rrida~dviied~hc captliin~of thc~z~ir thathe noiil<>id hiin responsiblc
for aiiy accident uhich miaht occiir, as the L,masfishinr: in ÿccorJance
with the Order made by the International Court of ~ustice on 17 August
1972. At IO20 GMT, the Aegir streamed her cutting gear and steamed at
full speed across the Lucida'sstern, deliberately severing both warps. Gear
valued atf1,669.07 was lost.
12 Seprember1972. At 1357 GMT, at a position approximately 69 49' N.,
24O40' W., the lcelandic vessel Aegir again approached the trawler SSAFA
and at 1422 GMT unsuccessfully attempted to cut one warp of the trawler.
As a result of this action. one towing block of the SSAFA was damaged.
12 Seprember1972. At 1448 GMT, at a position approximately 66' 00' N.,
25" 00' W., the lcelandic vessel Ae~ir cut both waros of the trawler Wyre
Vicrory,passing so close that the ajter warp flew back aboard the trawler,
putting the crew of the Wyre Vicroryat considerable risk. Gear valued at
£1,968.42 was lost by the lVyre Vicrory.
22 September 1972. At 1700 GMT, at a position approximately 65' 42' N.,
24" 57' W., the lcelandic coastguard vessel Oditrnapproached a group of
seven British trawlers fishing off Kopanes and warned them that their gear
would be cut unless they hauled and left the area. The trawlers refused Io
comply. The Odinn came close and attempted unsuccessfully to cut the
Sforella's warps with sweeps. At 1923 GMT, the Odinn cut both warps of
the trawlerKe~tncdyG. ear valued at £2,070.34 waslost by the Kennedy.
22 Seprember1972. At 2020 GMT, at a position approximately 65' 42' N.,
24' 57' W., the lcelandic vessel Odi~t~craught the Wyre Caproin fishing
alone and cut her warps. Gear valued at £1,705.38 was los1 by the Wyre
Captain.
17 Ocrober 1972. At 0945 GMT, at a position approximately 66O 14' N.,
24"22' W., the lcelandic vesse1Aegir warned the trawler Wyre Corsoirthat
she wasfishing illegally and gave her 15 minutes to hauland leave the area.
At IO10 GMT, the Aegir attempted to cut the warps of the Wyre Corsair.
The British support ship Orhellu protested to the Aegir but was ignored. At 1015 GMT, the Aegir cut hoth warps of the Wyre Corsair. The Wyre
Corsair lost gear valued at £2,109.00.
17 October 1972. At 1620 GMT. at a ~osition an~roximatelv 66" 30' N.. 22"
20' W., inside the Icelandic 12-mile'limit, the'Gawler wy;e ~anguardwas
returning home and was ordered to stop by the Odinn. Three shots were
fired by theOdinn.
18 Ocrober 1572. At 0830 GMT, at a position approximately 66' 55' N.,
16' 00' W., the Icelandic vessel Aegir warned the trawlers Aldershot and
Ross Revenge to haul and threatened to cut their gear if they did not
comply within 15 minutes. The commander of the British support ship
Othello protested to the Aegir, which acknowledged the protest. At 0910
GMT, the Aegir cut the gear of the Aldershot and, as she turned away to
port, collided with the Aldershot's stern. There were no casualties on board
the Aldershor which steamed away to the Faroes. After the collision, the
Aegir announced that she would without further warning cut the warps of
al1 British vessels fishing in the area. Asa result of the warp-cutting, the
Aldershot lost gear valued at £1,732.31. The total cost of repairs, including
replacement gear and the services of two British trawler escorts to the
Faroes, was £ 16,765.50.
29 October 1972. At a position inside the 12-mile limit off the north-west
Coast of lceland, the Icelandic vessel Odinn fired two shots at the trawler
Real Madrid, which was sheltering from had weather.
23 November 1972. At 1300 GMT, at a position approximately 66' 40' N.,
22" 00' W., the lcelandic vessel Odinn ordered seven British trawlers to
leave the area, alleging that they were harassing lcelandic lining gear. No
prior warning of the lining position had heen given, and the trawlers
refused to comply. The British support ship Ranger Briseis warned the
Odinn, but the warning was ignored. At 1530 GMT, the Odir~ncut both
warps of the trawler Vianova and unsuccessfully tried to cut the warp of
the trawler Wyre Captain. Replacement gear for the Vianovacost £1,890.52.
27 December 1972, At 1930 GMT, at a position 65' 31' N., 12' 05' W., the
Icelandic vessel Odinn ordered a group of British trawlers to haul and
leave the area. The trawler Benella acknowledged receipt of the message
but continued to fish. The Odinn then without further warning cut both
warps of the Benella. The skipper of the Benella estimated the value of the
gear which he had lost at £2,086.47.
7 Janrdary 1973. At 1145 GMT, at a position approximately 64' 30' N.,
13' 00' W., the Icelandic vessel Aegir approached the trawler Boston
Blenheim, and warned her to leave the area. She then cut one warp of the
Boston Blenheim, and attempted to cut the warps of four other British
trawlers.
7 Janrtary 1973. At 1530 GMT, at a position approximately 66' 25' N.
13"40' W.. the lcelandic vessel Odinn ordered the trawler Westella to haul
her gear and proceed outside the claimed 50-mile limit. She then cut both
warps of the M'estella. The British support ship Othello protested to the
Odirtnand the protest was acknowledged. The skipper estimated the value
of the gear at £2,000.
12 January 1573. At 1007 GMT, at a position approximately 66' 45' N.,
14" 30'W., the lcelandic vessel Odinn cut both warps of the trawler Ross
Renown. Replacement gear for the Ross Renowncost £2,122.78.
12 Janiiory 1973. At 1820 GMT, at a position approximately 66' 40' N.,
14" 30' W., the Icelandic vessel Aegir cut hoth warps of the trawler Ross
Kandahar. Replacement gear for the Ross Kandahar cost f 1,773.21. MEMORtALONTHE MERlTS 423
16 January 1973. At 2307 GMT, at a position approximately 66' 20' N.,
13"00' W., the lcelandic coastguard vessel Tyr cul the forward warp of the
trawler Vanessa.
17 Janrtary 1973. At 1740 GMT, at a position approximately 66O20' N.,
12' 40' W.. the lcelandic vessel Tyr approached the trawler Luneda and
threatened to sever her warps if shedid not haul her gear within tenvninutes.
The Lunedarefused to comolv. At 1818GMT and 1825GMT. the Tvr made
two unsuccessful attempts io-cul the trawler's warps. At aboh 192i GMT,
the Luneda started to haul her gear on completion of her trawl. While she
was hauling, the Tyr cut both warps. The skipper of the Lunedo estimated
that gear worth £1,853.68 was los1 as a result of this action. Gear worth
£368.73 was los1earlier while attempting to avoid the Tyr.
23 January 1973. At 1430 GMT, al a position approximately 65' 20' N.,
12" 20' W., the lcelandic vessel Tyr cul the forward warp of the trawler
Ross Alrair, while the RossAltair was towina. No warning was given to the
Ross Altair. The trawl was recovered by anoiher trawler. Replacement gear
and repairs cos1£70.82.
5 March 1973. On the morning of 5 March. al a nosition a~~roximatelv
67" 00' N., 17' 00. W., the l'elandic vessel~egir Las reporied harassini
British trawlers and warning them 10 leave the area. At 0955 GMT, the
Aegir approached the trawler RossResolurion and cul the trawler's forward
warp.
5March 1973. At 1200 GMT, at a position approximately 67'00'N., 17'00'
W., the lcelandic vessel Aegir approached the British trawler SI. Chadand
attempted to cul the after warp of the trawler. The warp was partially
severed.
5 March 1973. At 1600 GMT, at a position approximately 67' 00'N., 17'00'
W., the lcelandic vessel Odinn cul the forward warp of the trawler William
Wilberforce.
5 Morch 1973. At 1545GMT, at a position approximately 67'00' N., 17'00'
W., the lcelandic vessel Aegir cut the after warp of the trawler Port Vale.
The trawler succeeded in recovering her gear.
6 March 1973. At a position off the north-east Coast of Iceland, the lcelandic
vessel Aegir fired two blank rounds at the trawler Brricella, which was
protecting the warps of the trawler Vanessa.
6 March 1973. At 0045 GMT, al a position approximately 67' 00' N., 15" 30'
W.. the lcelandic vesselOdinn cut both warns of the trawler Real Madrid.
6 ,Murch 1973. At 1032GMT, 31 a position approxin~îtely 67' 00'N.. 17'00.
W.. the IcclanJic vessel.4~gircul one narp of the irîalerRopsKr11.1n.
6 hlarch 1973. Ai 1600GMI'. îi a oositiijn aonroxiniatelv 67'00' NI. 17'00'
W., the lcelandic vessel A& cil both wa'rps of the tiawler ~ruc~lla and
one warp of the trawler Vanesso.A complete set of gear was lost.
7 March 1973. At 1545 GMT, al a position approximately 66' 47' N., 15'44'
W., the lcelandic vessel Aegir was reported harassing a group of 10 Brit-
ish trawlers. At 1650 GMT, the. Aegir cut both warps of the trawler
Sours.
7 ~arrh 1973. At 1900 GMT, at a position approximately 66'45' N., 15'40'
W., the Icelandic coastguard vessel Thor approached the trawler Grimsby
Town and steamed across the stern of the trawler. cutting both warps. No
warning was giveii to the trawler. A full.set of gear was lost.
8 March 1973. At 2045 GMT, al a position approximately 67'00' N., 16'00'
W.. the lcelandic vesselAegir cut theafter warp of the trawler RealMadrid.
The trawler recovered ils gear.10 March 1973. At 1700GMT, at a position approximately 66' 50' N., 16' 30'
W.. the lcelandic vessel Aezir aooroached the trawler Newby Wvke on
. .
the starboard side and the;, wiihout warning, crossed the stern of the
trawler, cutting the after warp. The trawler recovered her gear, but lost her
catch.
II March 1973. At I800GMT. at a position approximately 66'50'N., 15' 15'
W., the lcelandic vesselAegir approached the trawler RossCanaveraland
cut the trawlei's after warp while the trawler was recovering gear which
had become stuck on the bottom.
13 March 1973.At 2230 GMT, at a position of the south coast of Iceland, the
Icelandic vessel Thor cut one warp of the trawler Irvana. The other warp
was partially severed.
14 ilforch 1973.At 0715 GMT, a1a position approximately 66O52' N., 23" 50'
W., the lcelandic vessel Thor approached the trawler BostonExplorer. As
the trawler was hauling her gear after completing her trawl, the Thor went
across the stern of the trawler and cut one warp. The trawler retrieved her
gear, but the trawl was ruined.
14 Marc111973.At 1115GMT, at a position approximately 67' 01' N., 23'04'
W., the lcelandic vesselThorcut one warp of the trawler NorthernSceptre.
14 March 1973. At 0730 GMT, at a position off the north-west coast of
Iceland, the lcelandic vessel Thor approached a group of about 30 trawlers
and, without warning. cut hoth warps of the trawler BostonBlenheim.Gear
valued at £2,305.00 was lost as a result of this action.
14 March 1973.At 0800 GMT, at a position approximately 66' 50' N., 23" 35'
W., the lcelandic vesselThorcut one warp of the trawler Benvolio.Replace-
ment gear and repairs cost £267.90.
17 March 1973. At 1816GMT, at a position approximately 66'46'N., 22"43'
W., the lcelandic vessel Odinn cut one warp of the trawler Robert Hewitt
and damaged the other warp. The warps were hauled in and spliced. When
the trawler next shot away her gear to begin trawling, both warps parted as
a result of.the damage which the Odinn had caused and a complete set of
gear was lost. Replacement gear cost £2,254.14.
18 March 1973.At 1745GMT. at a oosition aooroximatelv 66' 30' N.. 22" 00'
W., the lcelandic vessel Odinnfiréd two livéiounds acrbss the bowsif the
tug Staresman.No damage was caused.
25 March 1973. At 2350 GMT, at a position approximately 63O00' N., 21" 00'
W., the lcelandic vesselAegir cut both warps of the trawler Wyre Defence.
Gear valued at f2.146.63 was lost.
25 March 1973. At 1600GMT. at a oosition aooroximatelv 63'00' N.. 21'00'
W., the lcelandic vessel ~egir firéd one livé'round across the bowsof the
trawler Brt,cella, which was protecting the warps of the trawler Wyre
Defence,and three blank rounds were fired from a gun laid in the direction
of the trawlers.
26 March 1973.At 1030GMT, at a position of the south coast of Iceland, the
lcelandic vesselAegir cut both warps of the trawler Sr. Leger.
26 Morch 1973.At 1046GMT, at a position approximately 63O00' N., 21" 00'
W.. the lcelandic vessel Aegir fired six blank rounds at the trawler SI.
Leger, which had just had her warps cut hy the vessel.The Aegir threatened
to fire live shots if the trawler did not leave.
2 April 1973. At 1608 GMT, at a position approximately 64' 15' N., 12" 50'
W., the lcelandic vesselAegir approached a group of 13 British vesselsand
cut both warps of the trawler RossResolurion.The trawler lost a full set of
gear as a result of this action. casualties were reported. At 2215 GMT, the Thor fired one round at the
trawler Macbeth, not causing any damage.
?4 April1973. At 0940 GMT, at a position off the south-east Coastof Iceland,
the Icelandic vessel Aegir succeeded in cutting both warps of the trawler
Notts Foresr after six attemots. Gear was lost to the value of £2040.43,
25 Aprrl 1973. At n position ;,ff the \outh-uc\tCoast <if Iceland, an lcelandic
coastguard \csicl cut one warp of ihe tra\*.ler I.or,lJt~llirt,e.
4 Jluy 1973. At 1430 CihlT. üt a pu5ition aooroximïtelv 66 00' N.. 25' 00'
W.; the Icelandic vessel Sr approached ihe trawle; Wyre viclor?, un-
covered her gunand threatened to open fire. The Tyr then cut the forward
warp of the trawler.'
12 May 1973. At 0850 GMT, at a position approximately 64' 00' N., 13" 00'
W., the Icelandic vessel Thor fired a blank round al the tug Englishman. At
0922 GMT. the Thor fired a blank round at the trawler Irishman.
14 .il<r) 1973 At 2046 Chlf, al a pobition appruxim~tely 66'45' S., 15" 00'
W.. thc Icel.ind.i vesrels Thor and T,r appro3;hcd ï grtiup $1124 British
trawlers. The Thor had manned her guns before reaching the trawlers.
At 2122 GMT the Tyr ordered the trawler Lord Alexander to stop under
threat of fire, saying that sheintended to board. The trawler Macbeth inter-
~osed herself between the Tvr and the Lord Alexander. The Tvr then fired
ilne round in the directionof. and falling \ery cli>sr to. the tramlcr .3lat.h+th
and anothcr \hot in ihe dircction of ihc niain group ol'tr3ulers.Ni) d:image
was caused to the traders
6 $10) 1973. ht 1400 GMT. at ü pohition xppro~imïtelg 66' 45' N.. 18' 50'
W., the Icelandic \csscl Aegir üpprc~~chedthe tra\ilcr /:v<,rti>n.u hich \\as
lirhina :il<inc outsirlc the 12-niilc Iiniit.Lierre,,haulcd and siai\isd hçr
pear A-<the A,,#,rdpprtiachcd. The Ar.n.,rTircJ a numher or blank rhclls tn
the direction of rhc Lirron. sxying rhe \\ould tire live rounds if the irar~ler
did no1 stop. The \kipper of the irA\i,lcr rcfusctu ~umply. The .4t,gir thcn
hi1 the hou, aiid lish-holJ of the Evzrron with nine rounds of Iiic 57-nim.
solid shells. Tiu cs\ualtics u,crc rcportcd aniong thc :rît\ of the Ebrrrun.
but 5he ti)<iI\ in aater a3 re\uIi of th15dxniaae. The Aevir hrokc @ifihc
attack when the trawler C. S. Forester approiched to as& the Everton.
The Everton left the area escorted by the C. S. Foresler and, at 1916 GMT,
wasjoined by the tug Sraresmanwhich gave help in pumping.
1 June 1973. At 0903 GMT, at a position approximately 64' 15' N., 12" 30'
W., the Icelandic vesselArvakur cut one warp of the trawler Gavina.
1 June 1973. At 0915 GMT. at a oosition aooroximatelv 64' 15' N.. 12' 30'
W., the lcelandic vessel ~;vakirr; after two~;nsuccessfu~lattempts th cut the
warps of the trawler Belgaum, collided with the starboard bow of the
trawler and then rammed the bridge of the trawler Vivaria, causina damage
to that trawler's superstructure. ~he Arvakur then went astern and collided
with the tug Irishman, which was attempting to protect the Vivaria, and
caused a split in the stem of the Irishman.
7 June 1973. At 0928 GMT, at a position approximately 66" 26' N., 24' 53'
W., the lcelandic vessel Aegir collided with the Royal Naval vessel HMS
Scylla while the Scylla was interposing herself between the Aegir and a
British trawler. The collision was caused by the Aegir turning hard to port
into the Scylla's course as the Scylla was passing. The Scylla suffered
daniage to the upper deck fittings on her starboard quarter.
27 June 1973. At 1625 GMT, at a position approximately 66' 31' N., 21' 17'
W., the lcelandic vessel Thor cut both warps of the trawler Arctic Vandal. MEMORlALON THE MERlTS
Annex 37
(1)
Note le/t wirh Mifristry /or ForeignAffuirs of /celand by British Ambussudor
Ni Reykjuvik on 23 Seprember1972
On 22 September, the Coastguard vessel Odinn severed the warps of Iwo
British trawlers, Kennedy FD 139 and Wyre Coprain FD 228, and made an
unsuccessful attempt to sever the warp of the trawler Srarellu.Ali the trawlers
were fishing on the high seasoutside the 12-mile limit.
On instructions from Her Majesty's Government, 1protest strongly al these
actions which destroyed the gear and catches and endangered the safety of
the British trawlers. 1reserve the right Io claim compensation for the damage
caused and the loss involved.
Once again, 1 urge that instructions be given Io the Icelandic Coastguard
vesselsto stop these activities.
For Our part, we have consistently urged British trawlers fishing around
lceland to exercise restraint and avoid ~rovocation and we ho~e that they will
coniiniicicido ih~s Hui ihese aiia~k\ pui their forhr.ar3nce undrr great \iraln
nnJ ihc respon\ihilityfor any ion,equenies mi.st re.1 .;olely uith ihc Icclxndii
authorities
These warp-severing activities, with the close manŒuvring and risk of col-
lision involved, are exceedingly dangerous and could well result in an ex-
tremely serious incident. They endanger both ships and men.
Any further harassment of British trawlers outside the 12-mile limit is
bound to prejudice the prospect of conducting successfulnegotiations between
Our IWO countries.
23 September 1972.
(2)
Nore handedto Minisrer/or Foreifil Affuirs of Icelondby Brirish Ambassudor
in Reykjavik on 18 Ocrober1972
Sir Alec Douglas-Home has instructed me to convey to you the following:
He is extremely concerned at the reports of further harassment of British
trawlers by lcelandic Coastguard vessels. The lcelandic vessel Aegir has
severed the gear of the British trawlerWyre Corsair which was fishing on the
high seasoutside the lcelandic 12-mile limit, in accordance with the order of
the International Court of Justice. We shall in due course be claiming com-
pensation in respect of the loss siistained.t has also been reported that the
Odirrrrhas fired across the bows of. and threatened to fire at, the trawler
Wyre Voirgrtardwhich was on passage inside the 12-mile limit with gear
stowed.428 FISHERIES IURISDICTION
Before these latest incidents we were arranging for the British industry to
apply unilarerally in advance of any agreement the scheme of the areaclosures
indicated as 1 (A) in the report by Britishand Icelandic officiais.This gesture
of co-operation would have meant that during October no British trawlers
would fish in the area marked "F on the agreed chart and that from the
beginning of November they would refrainfrom fishing in Area "Y.
We understand that according to the lcelandic Coastguard Odinn fired only
blanks. Nevertheless, we now find ourselves in a new and very much more
serious s~tuation. The earlier interference with leeitimate ~ ~ritish fishine verv
- ~,
nearly led to most serious consequences. It was only by the exercise of great
restraint on the Dart of the British Government and British trawlermen that
these were averied. That restraint is still being exercised. It is important,
however, that the lcelandic Government should not misinterpret it. We must
reserve the riaht, in the event of further interference. to take without further
. .~ -.such measuresaswe mav conside. aoor~ori~te .. Drotec~ ~ur v.ssel~ ~ ~
WC hupe thlit the Icelandiç Govcrnmcnt sharc Our dcsirc ihai rhc situation
should nui develop in ihis \<a,.. It is surely in the intercst of hoth C;ovcrnmenir
that discussi~ ~ s~ould be co~ ~nu~d. ~S~ the For~ ~ ~Secretarv in.icated in ~ ~~
his message of II October, we see value in continuing them, but you will
realize that we can onlv do so if we can beconfident that British vesselswill be
frce irom harassnicr.t. Il \ras iinfortunlits ihat this lateit incident prc\ciitcJ
the iireï clowrc fri~m coniing inio force. \Vc could no1 advisc the indusiry IO
im~lement itin Dresentcircumstances but we would still be ~re~ared to do so
if ke could be-sure that thev would.not be subi~c~.to intirference from
lcelandic vessels.
We do not of course envisage that scheme I (A) should necessarily be
adopted as the outcome of discussions. Its application at this stage on a
voluntary basis would be intended purely as a gesture designed to create a
favourable atmosphere in which an interim arrangement could be worked
out. We hooe the lcelandic Government will seeadvanta~e in oroceedine in
this spirit and that you will be able to let the Foreign ~ecritaryhave an eariy
reply to his niessageof 1 I October.
Note delivered ro Ministry for Foreign Aflairs of Iceland by Brilish Embassy
in Reykjovik on 23 Janirory 1973
Note No. 6
Her Britannic Majesty's Embassy present their compliments to the Ministry
for Foreign Affairs and have the honour, with reference to the Ministry's
Note of 9 lanuarv 1973 1. to state the followine:
At 0145 hours <in 8 Januliry. the O~llelli>had hecn lyine stopped sincc 2300
hours on 7 January in the position iiicntioned tn the hlinistry's Note. I\lar~rr~
-,ab kn0ti.n bv Orhzllo tu be nearhv. but had no1 been in contact \r,ith Olliello.
During the incident, Orhello oveiheard the exchanges between Odin11and
Marerio (and other trawlers) but did not see the incident (visibility was very
poor) or intervene in it. Orhello remained stopped and did not move position
1 For the texi of the Ministry's Note of9 January 1973,seebelow, MEMORIAL ON THE MERITS 429
until 1420hours that day. Accordingly, there is no basis in fact for the allega-
tions and the protest contained in the Ministry's Note.
Even assuming that the facts regarding the Orhellohad been asstated in the
Ministry's Note, there would still have been no grounds for a protest. The
British Government bave not agreed to and do not recognize any lcelandic
fishery limits beyond those set out in the Agreement of II March 1961. The
question of the compatibility of Iceland's claim ta a 50-mile fishery limit with
internatipnal law has beenreferred by the British Government to the Interna-
tional Court of Justice in accordance with theexpress agreement in that behalf
between the two Governments. In this regard, the attention of the Icelandic
Government is drawn again to the Order made by that Court on 17 August
1972, operative paragraph 1 (c) of which indicates that "the Republic of
lceland should refrain from taking any measures ta enforce the Regulations
of 14July 1972against vesselsregistered in the United Kingdom and engaged
in fishing activities in the waters around lceland outside the 12-mile fishery
zone;" and paragraph I (d) that "the Republic of lceland should refrain
from a~~lvinr. administrative. iudicial or other measures against shi~. reg-s-
teredin ihé United ~ingdom,iheir crews or other relaled përsons, becauseof
their having engaged in fishing activities in the waters around lceland outside
the 12-mile fishery zone".
As the Ministry's Note recognizes, the Ofhello is a public vesse1of the
United Kingdom: as such, it is subject in respect of acts performed on the
high seasto British jurisdiction only. The mission of the Orhellois the same
as that of the other support vessels which the British Government have
provided for British fishermen in the lcelandic area since 1968. This mission,
which remains unchanged, is to provide meteorological advice and humani-
tarian support. However, the Embassy wish to point out that al1 British
vessels have the right ta render appropriate assistance ta others threatened ,
with or subject ta forcible interference or wilful darnage on the high seas in-
consistently with international law in general and, specifically, with the Order
of the International Court of Justice dated 17August 1972.
As regards the manŒuvres executed by Odinn on 8 January in twice sailing
around the Maretro. the Embassy draw Cheattention of the lcelandic ~overc
ment to the impermissibility of threatening to use force against vessels en-
gaged in peaceful activities on the high seas and ta the danger to men and
vesselscreated by such navigation.
The Embassy avail theniselves of this opportunity to renew to the Ministry
for Foreign Anàirs the assurancesof their highest consideration.
British Embassy. Reykjavik,
23 January 1973.
[The text ofthe Minisrry's Note of 9 January 1973 was asJollows:
No. 2
The Ministry for Foreign AKairs presents ifs compliments to the British
Embassy and has the honour to draw the Embassy's attention to the follow-
-
At 0145 hourson Januxry 8. 1973. the Iccljindic Coast Guard vesse1Odit~ln
approxhed the Hritish trauler Murerru l.T)245 fishing 26.0 nauticÿl niilcs 075' 430 FISHERIES JURISDICTION
oîT Langanes The Odttin sdiled twice around ttie tra\ilr.r but the trdulcr con-
Iinucd irüuling Thc irauler immediatcly contacicd the Orh<,lluand reqiie\ted
assistance. ~he Orhello was near bv and ~roceeded to the Marerlo and ore-
vented further enforcement action by the'0dititr.
The Government of lceland strongly protests against this interference by a
public vessel of the United Kingdom with law enforcement within the Ice-
landic fishery limits. Under lcelandic law assistance in illegal fishing in
lcelandic waters is subject to penalties. The Government of lceland reserves
its right with regard to any such action including compensation for any
damage resulting therefrom.
The Ministry for Foreign Affairs avails ilself of this opportunity to renew
to the British Embassy the assurancesof ils highest consideration.
Ministry for Foreign Affairs, Reykjavik.
January 9, 1973.1
Nore deliverrd Io Minisrry for Foreig~rAffairs of Iceland by Brilish Embassy
in Reykjar,ik on 7 March 1973
No. 15
Her Briiannic Majesty's Embassy present their compliments to the Ministry
of Foreia- AîTairs and. acting -n instructions from the Foreig~ ~-d Corn- -~
,monucallh Oltice. hai,e thc honour to 51atcthe following:
hi OYSSon 5 March on the high sear oil MeIrakkasleita ille Iççlandic toast
auard vesselAeair deliberatelv damaeed the eauioment of the British trawler
. .
Ross ~rsoli~rioi~~bycutting on; of theirawl warps. Later that day, in the same
area of the high seas,the Icelandic coastguard vesselsAegir and Odimr eut one
or both warps of the British trawlers~rcric VandaIl, Port Vale, William
Wilherforce and Re01 Madrid. On 6 March the coasiguard vessel Aegir
severedwarps oftheBritish trawlers Sr. Chod, RossKelvin and Briicella.
Such action is known 10be danaerous to lire and limb: uDon severance the
wires recoil with great force and could strike anyone on deck. Her Majesty's
Government protest against theseunlawful acts of the Icelandic authorities.
The Embassy are instructed to refer to the oral protests made by Her
Britannic Majesty's Ambassador against similar acts of wilful damage Io the
equipment of the following British vesselson the dates indicated:
1972
Peler Scorr ................. 5 September
L~icido .................. 12 Septeniber
Wjve Vicrory ............... 12 September
SSAFA .................. 12 September
Kennedy .................. 22 Seplember
Ii wassubsequentlyestablishedihai the damagesustainedby the Arcric V~,,dnl
was lessthan ariginally believedand was in fact confine10a towing-block and the
10% of some markers. The Minisiry for Foreign Atfairs were so informed by the
British Embassyon 9 April 1973. MEMORIAL ON THE'MERITS 431
Wyre Coprain ............... 22 September
Wyre Corsair ............... 17 October
Vianova .................. 23 November
Benella .................. 28 December
1973
BosronBlenheim .............. 6 January
Wesiella .................. 6 January
Ross Renowir ................ 12 January
RossKandahar ............... 12 January
Vanessa ................... 16 January
Lirnelda .................. 17 January
RossAlfair ................ 23 January
The Embassy must point out again to the Ministry that Her Majesty's
Government, not having agreed to any extension of lcelandic jurisdiction over
the high seasbeyond that accepted in the Agreement of 17 (sic) March 1961,
consider that there is no foundation in international law for the application of
the lcelandic Reeulations of 17 /sic) July 1972Io British vessels.The attention
agaln draxn tu the lnÏerini Order of the InternationalCourt
of the Miniiiry
ofJusticcuf 17Augurt 1972,paragr~phs I (a, and (r ofwhich reada~follous:
"(a) the United Kingdom and the Republic of Iceland should each of
them ensure that no action of any kind is taken which might
anaravate or extend the disvute submitted to the Court;"
.'(CI thr ~epublic of Icelïnd should refr~in lrom tdking an) mrasures IO
enforcc the Keguldrions of 14Jiily 1972dgainst vc\\el\ regfstered in
the United ~inadom and ennared in fishing activities in the waters
around lcelandoutside the lieive-mile fishery zone:'
In aCiordance \rith the Charter of the Lniied Salions. the Iniernational
Court ofJusticc ijthe priniipal jiidiciïorgan of the United Nations: Icçland.
as a party to the couri's Statute, has undertaken to comply with decisions of
the Court (Article 94 of the Charter) and is under a duty to comply with the
lnterim Order. Her Majesty's Government for their part are complying with
the Court's lnterim Order: in particular, with regard 10 paragraph I (e),the
Embassy draw the attention of the Ministry to the letter dated 19 December
1972from the United Kingdom's Agent Io the Registrar of the Court, a copy
of which was transmitted by the Ambassador to His Excellency the Minister
for Foreign Affairs under cover of a letter dated 3 January 1973. On 2
February 1973, the International Court of Justice decided that it had jurisdic-
tion to deal with the dispute. This decision is also binding upon Iceland.
The Embassy are accordingly instructed to reiterate the oral protests made
in the above-listed cases. It is only through good fortune that British fish-
ermen have not been injured. The financial losses involved will be made
known to the Ministry when the amounts have been fully assessedand ai the
proper lime.
Her Majesty's Government earnestly cal1 upon the Icelandic Government
to end the cutting of warps, the dangerous manŒuvring of coastguard vessels
and other forms of harassment of British vesselson the high seas.
Her Majesty's Embassy avail themselves of this opportunity 10 renew to
the Ministry of Foreign Affairs the assurancesof their highest consideration.
British Embassy, Reykjavik,
7 March 1973.Nore deliveredro Minisrry for Foreign Affair.~of Icelond by British Embassy
in Reykjovik on 17 May 1973
No. 22
Her Britannic Majesty's Embassypresent their compliments ta the Ministry
for Foreign Aiïairs and have the honour to draw the Ministry's attention to
the following.
On Monday 14May between 2IM) and 2200 hours two Icelandic coastguard
vesselsthe Thorand the Tyr approached a group of 24 British trawlers OITthe
north Coast of Iceland. The Thor's guns were manned before reaching the
trawlers and her cutting gear was streamed. The Tyr ordered the trawler Lord
Alexander to stop or she would fire. and said she intended to board. The
trawler Macbeth then interoosed..~rself between~t~e Tvr and the Lord
Ale-.i-u>tdtth.reby frus1r:iting 7,r.c sltenipti to ho:ird the liiter. Ai this point
Pr fircd s shot ahich fcII clijieid the Murhivh. L:itcr. I'rrlircJ anaithcr shor
in the general direction of the main group of British Gawlers. There is no
foundation for the allegalion that any of the British vesselsattempted to ram
any Icelandic vessel.
On instructions from Her Majesty's Government, the Embassy protest
strongly at this interference with legiiimate British fishing, al the threat 10
board a British trawler on the high seas and at the endangering of British
lives bv the firine. of live rounds.
~hc'~mbasry-avail themsel\r.s of ihis opporiunity io renew 10 the Miniitry
for Foreign Affairs the assuranies of iheir highrst ioniiJeration.
British Embassy, Reykjavik,
17 May 1973.
Memorial on the Merits submitted by the Government of the United Kingdom of Great Britain and Northern Ireland