Fisheries Jurisdiction (Spain v.

Canada)
[1995] The case was filed by Spain against Canada relating to an amendment of the Canadian
Coastal Fisheries Protection Act pertaining the pursuit, boarding and seizure on the high seas
of a fishing boat, the Estai, flying the Spanish flag and with a Spanish crew, by a Canadian
patrol boat, the Cape Roger. Thereby, rejecting the right of hot pursuit on the high seas and
prohibition of imprisonment and corporal punishment as penalties in case of violations of
fishing laws and regulations.
It was alleged that the Canadians boarded the Spanish boat with coercion and the crew was
forcibly escorted away and held incommunicado in the Canadian port for shipping on high
seas. Spain indicated that by this action Canada had violated the principles of general
international law which assert freedom of navigation and freedom of fishing on the high seas,
as well as the exclusive jurisdiction of the flag State over ships on the high seas. Spain also
said the Canadian act was an attempt to impose a prohibition on all persons fishing in the
NAFO [Northwest Atlantic Fisheries Organization] Regulatory Area.
The jurisdiction as Spain referred were the declarations of both States by which they accepted
that jurisdiction as compulsory. The provision, is known as the "Optional Clause," provides
that the states parties to the ICJ Statute may at any time file with the UN Secretary-General
declarations stating that they recognize as compulsory, without special agreement, in relation
to any other state accepting the same obligation, the Court's jurisdiction in all legal disputes
concerning the interpretation of a treaty, any question of international law, the existence of
any fact which, if established, would constitute a breach of an international obligation, or the
nature or extent of the reparation to be made for the breach of an international obligation.
Canada informed the Court that it lacked jurisdiction to deal with the case because of a
reservation made in its Declaration recognizing the compulsory jurisdiction of the Court In
the Declaration, Canada said the Court had a compulsory jurisdiction "over all disputes. . .
other than. . . disputes arising out of or concerning conservation and management measures
taken by Canada with respect to vessels fishing in the NAFO Regulatory Area. . . and the
enforcement of such measures".
[1998], ICJ ruled (12-5) that it lacks jurisdiction to adjudicate the dispute brought by Spain
The Court agreed with Canada that the words of an Optional Clause declaration, including a
reservation, must be interpreted in a natural and reasonable way, having due regard to the
intention of the state making the reservation at the time when it accepted the Court's
compulsory jurisdiction. Such state's intention, in turn, may be deduced not only from the text
of the relevant clause, but also from the context in which the clause is to be read, the
circumstances of its preparation, and the purposes intended to be served. The Court thus
stressed that a reservation to a declaration should be interpreted in a manner compatible with
the effect sought by the reserving state; reservations operate to define the parameters of a
state's acceptance of the Court's compulsory jurisdiction. In offering its interpretation of
Canada's reservation, the Court considered that the reservation's purpose was to prevent it
from exercising jurisdiction over matters that might arise with regard to the international
legality of the Canadian legislation and its implementation. The Court addressed Spain's four
main arguments in favour of jurisdiction: (1) the dispute brought by Spain falls outside the
terms of the Canadian reservation by reason of its subject-matter; (2) the Canadian legislation
cannot, in international law, constitute "conservation and management measures;" (3) the
reservation covers only "vessels" that are stateless or flying a flag of convenience; and (4) the
pursuit, boarding and seizure of the Spanish ship cannot be regarded in international law as
the enforcement of conservation and management measures. Court concluded that the dispute
submitted to it by Spain constitutes a dispute "arising out of" and "concerning" "conservation
and management measures taken by Canada with respect to vessels fishing in the NAFO
Regulatory Area" and "the enforcement of such measures." Consequently, the Court
concluded that this dispute comes within the terms of the Canadian reservation and found,
that it lacks jurisdiction to adjudicate upon the dispute.
It was used to put forward that agreements should be interpreted with keeping in mind the
intention of the party entering into it.