9/24/2018 Anglo Norwegian Fisheries Case (Summary on Customary International Law) | Public International law

Public International law

An introduction to public international law for students

Anglo Norwegian Fisheries Case (Summary on

Customary International Law)

International Court of Justice, Contentious

Case: Anglo Norwegian Fisheries Case (UK vs Norway)

Year of Decision: 1951.

The Court was asked to decide, amongst others, the validity, under international law, of the methods
used to delimit Norway’s territorial sea/ fisheries zone. We will not discuss the technical aspects of
the judgment relating to the delimitation, but focus on the Court’s conclusions relating to customary
international law.

Background to the case

The United Kingdom requested the court to decide if Norway had used a legally acceptable method
in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that
customary international law did not allow the length of a baseline drawn across a bay to be longer
than ten miles. Norway argued that its delimitation method was consistent with general principles of
international law.

Findings of the Court

1. The formation of customary law

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The Court referred to (1) positive State practice and (2) lack of contrary State practice as a
confirmation of an existing rule of customary international law (see p. 17 and 18 (h p://www.icj-
cij.org/files/case-related/5/005-19511218-JUD-01-00-EN.pdf)). There was no mention of opinio juris in
this early judgment.

In the following passage, the Court considered expressed dissent by States regarding a particular
practice to be detrimental to the existence of an alleged general rule. Yet, the Court did not examine
further whether these States adopted a contrary practice because, for example, (1) they were claiming
an exception to the rule (see the Nicaragua jurisprudence
(h ps://ruwanthikagunaratne.wordpress.com/2014/03/19/nicaragua-case-summary/)) or (2) because
they believed that the said rule did not possess the character of customary law.

“In these circumstances the Court deems it necessary to point out 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 States have adopted a different limit.
Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.”

1.1. The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned ten-
mile rule,

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always
opposed any a empt to apply it to the Norwegian coast.”

In this case, the Court appears to support the idea that an existing customary law rule would not
apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages and (3) in
a consistent manner. The Anglo Norwegian Fisheries Case, thus, supports the Asylum Case (Peru vs
Colombia) (h ps://ruwanthikagunaratne.wordpress.com/2014/03/02/asylum-case-summary/) in
articulating what we now call the persistent objector rule.

a. Initial objection

The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of
the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me
to have acquired the force of international law. Still less would it appear to have any foundation in reality…”

The Court held that “Language of this kind can only be construed as the considered expression of a legal
conception regarded by the Norwegian Government as compatible with international law”. Thus, the Court
held that Norway had refused to accept the rule as regards to it in 1870.

b. Sustained objection

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The Court also went on to hold that Norway had followed the principles of delimitation that it
considered a part of its system in a consistent and uninterrupted manner from 1869 until the time of
the dispute.

In establishing consistent practice, the Court held that “…too much importance need not be a ached to the
few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have
discovered in Norwegian practice.”

c. No objection by other States

The Court held that the 10-mile rule did not form a part of the general law and, in any event, could
not bind Norway because of the la er’s objections. Next, the Court inquired whether the Norwegian
system of delimitation was nevertheless contrary to international law. To do so, the Court relied on
state practice once more.

“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For
a period of more than sixty years the United Kingdom Government itself in no way contested it… The
Court notes that in respect of a situation which could only be strengthened with the passage of time, the
United Kingdom Government refrained from formulating reservations.”

1.2. Contrary State practice of Norway?

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.

However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that
its practice was not contrary to international law). It emphasized that its practice – even if it was a
deviation from the general practice – was in conformity with international law (see page 21
(h p://www.icj-cij.org/files/case-related/5/005-19511218-JUD-01-00-EN.pdf)).

“In its (Norway’s) view, these rules of international law take into account the diversity of facts and,
therefore, concede that the drawing of base-lines must be adapted to the special conditions obtaining in
different regions. In its view, the system of delimitation applied in 1935, a system characterized by the use of
straight lines, does not therefore infringe the general law; it is an adaptation rendered necessary by local
conditions. ”

The Court held that the fact that this consistent and sufficiently long practice took place without any
objection to the practice from other States (until the time of dispute) indicated that these States did
not consider the Norwegian system to be “contrary to international law”.

“The notoriety of the facts, the general toleration of the international community, Great Britain’s position
in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant
Norway’s enforcement of her system against the United Kingdom. The Court is thus led to conclude that the
method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the
Norwegian coast; that even before the dispute arose, this method had been consolidated by a consistent and
sufficiently long practice, in the face of which the a itude of governments bears witness to the fact that they
did not consider it to be contrary to international law.”

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2. Relationship between international and national law

The Court alluded to the relationship between national and international law in delimitation of
maritime boundaries. In delimitation cases, States “must be allowed the latitude necessary in order to be
able to adapt its delimitation to practical needs and local requirements…” The Court would also consider
“…certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by
a long usage.” However, while the act of delimitation can be undertaken by the State, its legal validity
depends on international law.

“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the
will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is
necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the
delimitation with regard to other States depends upon international law. (p. 20)”

Further reading:

T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in
International Law’, 26 Harvard International Law Journal, 1985, p. 457,

J. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’,
(h p://bybil.oxfordjournals.org/content/56/1/1.full.pdf+html)56 BYIL, 1985, p. 1.

“In fact, the two international court of justice cases which appear to support the persistent objector rule both
arose in circumstances where the new rule itself was in substantial doubt. Thus, it was significantly easier
for the objector to maintain its status. No case is cited for a circumstance in which the objector effectively
maintained its status after the rule became well accepted in international law. In fact, it is unlikely that such
a status can be maintained din light of the realities of the international legal system. This is certainly the
plight that befell the US, The UK and Japan in the law of the sea. Their objections to expanded coastal state
jurisdiction were ultimately to no avail, and they have been forced to accede to 12-mile territorial seas and
the 200-mile exclusive economic zone. “

Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom

(h p://www.yalelawjournal.org/article/withdrawing-from-international-custom)‘, see also pp. 236 –
239.

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“The Fisheries Case, decided a year later, pi ed the United Kingdom against Norway. At issue was whether
Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial
sea. The United Kingdom argued that CIL did not allow the length of a baseline drawn across a bay to be
longer than ten miles. Again, as with the Asylum Case, the primary holding of the case was that the alleged
CIL rule did not exist. In the alternative, the court briefly remarked that, had the rule existed, it would not
have applied against Norway because Norway had “always opposed any a empt to apply it to the
Norwegian coast.”This language is often cited in support of the persistent objector doctrine, but it could just
as easily be read to support the Default View of CIL, since there is nothing in this language that suggests
that Norway’s opposition must have occurred prior to the establishment of the alleged rule of CIL. The
arguments of the parties do not resolve this uncertainty: although the United Kingdom appears to have
supported something like the modern persistent objector doctrine, at least for rights historically exercised by
a state (while asserting that Norway had not met its requirements),Norway (which prevailed in the case)
appears to have supported something closer to the Default View.

The Asylum and Fisheries decisions provide no more than passing and ambiguous support for the doctrine.
State practice since those decisions is also relatively unhelpful, since there have been essentially no instances
in which states have invoked the doctrine. As Professor Stein reported in a 1985 article, his research had
“failed to turn up any case where an author provided even one instance of a state claiming or granting an
exemption from a rule on the basis of the persistent objector principle—excepting of course the Asylum and
Fisheries cases themselves.”

© Ruwanthika Gunaratne at h ps://ruwanthikagunaratne.wordpress.com, 2008 – present.

Unauthorized use and/or duplication of this material without express and wri en permission from
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Posted in Cases and tagged Asylum Case, customary international law, Norwegian Fisheries Case,
persistent objector on April 11, 2014 by Dakshinie Ruwanthika Gunaratne. 5 Comments

5 comments

1. Pingback: 2.5. Who is a Persistent Objector? (Updated) | Public International law

2. Maureen Coffey says:
September 28, 2014 at 11:18 PM
International law is a fascinating subject that I have always argued should be taught in the first
semesters of any education in jurisprudence, not as an afterthought. It shows how arbitration and
the balancing of different (colliding) interests generate eventually binding legal precedent which
is a sobering reminder that no body, be it “the people” via a 50.1% “majority” nor any executive
order etc. should be allowed to “posit” law that had not been deliberated in such a fashion!

REPLY
3. bahatimakamba says:
May 4, 2015 at 1:04 PM
although territorial jurisdiction of state is exclusive ,such jurisdiction may be excluded basing on
Latin maxim “par in parem non habet imperium” explain : can u help me this question Dr and
reply it in my email

REPLY
4. themrelaxedroots says:
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April 19, 2018 at 4:30 PM

This was so helpful, thank you You mention referring to p.17 and 18 in the first paragraph of
‘the formation of customary law’ section. I was wondering what textbook you were referring to
and where I can find it?

REPLY
1. Dakshinie Ruwanthika Gunaratne says:
April 19, 2018 at 8:17 PM
Hello, it is the judgement (h p://www.icj-cij.org/files/case-related/5/005-19511218-JUD-01-00-
EN.pdf). Note that the page numbers are on the bo om right of the page (if you look at the top
left, the corresponding page numbers are 129 and 130)

REPLY

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