FISHERIES CASE

History[edit]
The situation which gave rise to the dispute and the facts which preceded the filing of the British
Application are recalled in the Judgment. The coastal zone concerned in the dispute is of a
distinctive configuration. Its length as the crow flies exceeds 1,500 kilometers. Mountainous along its
whole length, very broken by fjords and bays, dotted with countless islands, islets and reefs (certain
of which form a continuous archipelago known as the skjaergaard, "rock rampart"), the coast does
not constitute, (as it does in practically all other countries in the world) a clear dividing line between
land and sea. The land configuration stretches out into the sea and what really constitutes the
Norwegian coastline is the outer line of the land formations viewed as a whole. Along the coastal
zone are situated shallow banks which are very rich in fish. These have been exploited from time
immemorial by the inhabitants of the mainland and of the islands: they derive their livelihood
essentially from such fishing. In past centuries British fisherman had made incursions in the waters
near the Norwegian coast. As a result of complaints from the King of Norway, they abstained from
doing so at the beginning of the 17th century and for 300 years. But in 1906 British vessels
appeared again. These were trawlers equipped with improved and powerful gear. The local
population became perturbed, and measures were taken by Norway with a view to specifying the
limits within which fishing was prohibited to foreigners. Incidents occurred, became more and more
frequent, and on July 12, 1935 the Norwegian Government delimited the Norwegian fisheries zone
by Decree. Negotiations had been entered into by the two Governments; they were pursued after the
Decree was enacted, but without success. A considerable number of British trawlers were arrested
and condemned in 1948 and 1949. It was then that the United Kingdom Government instituted
proceedings before the Court.

Facts[edit]
On 24 September 1949, the UK requested that the International Court of Justice determine how far
Norway's territorial claim extended to sea, and to award the UK damages in compensation for
Norwegian interference with UK fishing vessels in the disputed waters, claiming that Norway's claim
to such an extent of waters was against international law.

Judgment[edit]
On 18 December 1951, the ICJ decided that Norway's claims to the waters were consistent with
international laws concerning the ownership of local sea-space.
The Court found that neither the method employed for the delimitation by the Decree, nor the lines
themselves fixed by the said Decree, are contrary to international law; the first finding being adopted
by ten votes to two, and the second by eight votes to four. Three Judges — MM. Alvarez, Hackworth
and Hsu Mo appended to the Judgment a declaration or an individual opinion stating the particular
reasons for which they reached their conclusions; two other Judges—Sir Arnold McNair and Mr. J.
E. Read—appended to the Judgment statements of their dissenting Opinions.
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.”