The anglo-norwegian fisheries case
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.
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.