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International Court of Justice, Contentious Case: Anglo Norwegian Fisheries Case (UK vs

Norway)

Since 1911 British trawlers had been seized and condemned for violating measures taken by the
Norwegian government specifying the limits within which fishing was prohibited to foreigners.
In 1935, a decree was adopted establishing the lines of delimitation of the Norwegian fisheries
zone.

On 24th September 1949 the government of the United Kingdom filed the registry of the
international court of justice an application instituting proceedings against Norway. The subject
of the proceeding was the validity, under international law, of the lines of delimitation of the
Norwegian fisheries zone as set forth in a Decree of 12th July 1935.

The application referred to the declaration by which the united Kingdom and Norway had
accepted the compulsory jurisdiction of the International Court of Justice in accordance with
article 36 (2) of its statute.

The parties involved in this case were Norway and the United Kingdom, of Great Britain and
Northern Ireland. The implementation of the Royal Norwegian Decree of the 1935 was met with
resistance from the United Kingdom. The decree covers the drawing of straight lines, called
“baselines” 4 miles deep into the sea. This 4 miles area is reserved fishing exclusive for
Norwegian nationals. Under article 36(2) both UK and Norway were willing to accept the
jurisdiction of the ICJ on this case and with no appeal. The issues that constitute the case were
submitted to the court and the arguments presented by both countries. The issues claims the court
to: declare the principles of international law applicable in defining the baselines by reference to
which Norwegian government was entitled to delimit a fisheries zone and exclusively reserved to
its nationals; and to define the said “base lines” in the light of the arguments of the parties in
order to avoid further legal difference; and secondly to award damages to the government of the
United Kingdom in respect of all interferences by the Norwegian authorities with British fishing
vessels outside the fisheries zone, which in accordance with ICJ’s decision, the Norwegian
government may be entitled to reserve for its nationals.

The United Kingdom argued that;

 Norway could only draw straight lines across bays

 The length of lines drawn on the formations of the Skaergaard fjord must not exceed 10
nautical miles( the 10 Mile rule)

 That certain lines did not follow the general direction of the coast or did not follow it
sufficiently , or they did not respect certain connection of sea and land separating them
 That the Norwegian system of delimitation was unknown to the British and lack the
notoriety to provide the basis of historic title enforcement upon opposable to by the
United Kingdom

The Kingdom of Norway argued;

 That the base lines had to be drawn in such a way as to respect the general direction of
the coast and in a reasonable manner.

The case was submitted to the International Court of Justice by the government of the United
Kingdom. The government of United Kingdom wants the ICJ to declare the validity of the base
lines under international law and receive compensation for damages caused by Norwegian
authorities as to the seizures of British Fishing vessels.

The judgment of the court first examines the applicability of the principles put forward by the
government of the UK, then the Norwegian system, and finally the conformity of that system
with international law. The first principle put forward by the UK is that the baselines must be
low water mark, this indeed is the criterion generally adopted my most states and but differ as to
its application. (Johnson 154). The court considered the methods of drawing the lines but, the
court rejected the “trace Parallele” which consists of drawing the outer limits of the belt
following the coast and all its sinuosity. The court also rejected the “courbe tangent” (arcs of a
circle) and it is not obligatory under international law to use these methods of drawing the lines.
The court also paid particular attention to the geographical aspect of the case. The geographical
realities and historic control of the Norwegian coast inevitably contributed to the final decision
by the ICJ. The coast of Norway is too indented and is an exception under international law from
the 3 miles territorial waters rule. The fjords, Sunds along the coastline which have the
characteristic of a bay or legal straits should be considered Norwegian for historical reasons that
the territorial sea should be measured from the line of low water mark. So it was agreed on the
outset of both parties and the court that Norway had the right to claim a 4 mile belt of territorial
sea. The court concluded that it was the outer line of the Skaergaard that must be taken into
account in admitting the belt of the Norwegian territorial waters. (Johnson 154- 158). “There is
one consideration not to be overlooked, the scope of which extends beyond geographical factors.
That of certain economic interests peculiar to a region, the reality and importance of which are
clearly evidenced by a long usage” (Johnson 160)

The law relied upon mainly international Law of the sea; how far a state can modify its territorial
waters and its control over it, exclusively reserving fishing for its nationals. In this case, rules
that are practiced for instance how long a baseline should be. Only a 10 mile long straight line is
allowed and this has been the practice by most states however it is different in the case of
Norway because of Norway’s geographic indentation, islands and islets.

The international customary law has been a law of reference in the court arguments. Judge Read
from Canada asserts that Customary international law does not recognize the rule according to
which belts of territorial waters of coastal states is to be measured. More so public international
law has been relied upon in this case. It regulates relation between states; the United Kingdom
and Norway.

Maritime Law

Coastline Rule

The judgment was rendered in favor of Norway on the 18th December 1951. By 10 votes to 2 the
court held that the method employed in the delimitation of the fisheries zone by the Royal
Norwegian decree of the 12th July 1935 is not contrary to international law. By 8 votes to 4
votes the court also held that the base lines fixed by this decree in application are not contrary to
international law. However there are separate opinions and dissenting opinions from the judges
in the court.

Judge Hackworth declared that he concurred with the operative part of the judgment because he
considered that the Norwegian government had proved the existence of historic title of the
disputed areas of water.

Judge Alvarez from Chile relied on the evolving principles of the law of nations applicable to the
law of the sea.

 States have the right to modify the extent of the of their territorial sea

 Any state directly concerned may object to another state’s decision as to the extent of its
territorial sea

 International status of bays and straits must be determined by the coastal state directly
concerned with due regard to the general interest and

 Historic rights and concept of prescription in international law.

Judge Hsu Mo from china opinions diverge from the court’s with regards to conformity with
principles of international law to the straight lines drawn by the Decree of 1935. He allowed
possibility in certain circumstances, for instance, belt measured at low tide, Norway’s geographic
and historic conditions. But drawing the straight lines as of the 1935 degree is a moving away
from the practice of the general rule. (Johnson 171)

The dissenting opinions from judge McNair rested upon few rules of law of international waters.
Though there are exceptions, in case of bays, the normal procedure to calculate territorial waters
in from the land, a line which follows the coastline. Judge McNair rejected the argument upon
which Norway based its decree including:

 Protecting Norway’s economic and other social interests


 The UK should not be precluded from objecting the Norwegian system embodied in the
Decree because previous acquiescence in the system and

 An historic title allowing the state to acquire waters that would otherwise have the status
of deep sea. Judge McNair concluded that the 1935 decree is not compatible with
international law.(Johnson173)

Furthermore, Judge Read from Canada was unable to concur with parts of the judgment. Read
rejected justification by Norway for enlarging her maritime domain and seizing and condemning
foreign ships (Johnson 173);

 Sovereignty of the coastal state is not the basis for Norway to claim 4 mile belt from
straight base lines

 Customary international law does not recognize the rule according to which belts of
territorial waters of coastal states is to be measured.

 Norwegian system cannot be compatible with 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)”