Case: Anglo Norwegian Fisheries Case (UK vs Norway) The court held that “Language of this kind can
held that “Language of this kind can only be construed as the
Year of Decision: 1951. Court: ICJ.
The Court was asked to decide, inter-alia, the validity, under international law, of
the methods used to delimit Norway’s territorial sea/ fisheries zone. We would not
discuss the technical aspects of the judgment. The judgment contained
declarations on customary international law. However, the value of the
jurisprudence was diminished because these declarations lacked in-depth
discussion.
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 abay to be longer than ten miles. Norway
argued that its delimitation method was consistent with general principles of
international law.
Formation of customary law
The court consistently referred to positive (1) state practice and (2) lack of
objections of other states on that practice as a confirmation of an existing rule of
customary international law (see p. 17 and 18). There was no mention of opinio
juris in this early judgment.
In the following passage, the court considered that expressed state dissent
regarding a particular practice was detrimental to the existence of an alleged
general rule. It did not elaborate whether these states adopted a contrary practice
because it was claiming an exception to the rule (see the Nicaragua jurisprudence)
or because it 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.”
Persistent objector rule
The court in its judgment held that even if a customary law rule existed on the ten-
mile rule,
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch
as she has always opposed any attempt 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 it objected to any outside attempts to apply the
rule to itself, at the initial stages and in a consistent manner, and if other states
did not object to her resistance. In this manner, the Anglo Norwegian fisheries
case joined the asylum case (Peru vs Colombia) in articulating what we now call
the persistent objector rule.
Initial objection
In the present case, 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…”
considered expression of a legal conception regarded by the Norwegian
Government as compatible with international law”.The court held that Norway had
refused to accept the rule as regards to it by 1870.
Sustained objection
The court also went on to hold that Norway followed the principles of delimitation
that it considers 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 attached to the few uncertainties or
contradictions, real or apparent, which the United Kingdom Government claims to
have discovered in Norwegian practice.”
No objection
After 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 its objections, the court inquired
whether the Norwegian system of delimitation, itself, was contrary to international
law. To do so, the court referred to 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.”
Contrary practice
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) but rather it
claimed that its practice was in conformity with international law (see page 21).
“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. ”
Conclusion
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 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 attitude of governments bears witness to the fact
that they did not consider it to be contrary to international law.”
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’,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‘, see also
pp. 236 – 239.
“The Fisheries Case, decided a year later, pitted 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 attempt 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.”
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
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). 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) 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 attempt 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) 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
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 attached 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 latter’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).
“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 attitude of governments bears witness to the fact
that they did not consider it to be contrary to international law.”
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’, 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‘, see also
pp. 236 – 239.
“The Fisheries Case, decided a year later, pitted 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 attempt 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.”