NORTH ATLANTIC FISHERIES ARBITRATION
FACTS:
1) Great Britain and USA stipulated in the Treat of Peace of
1783 that inhabitants of the US should continue to exercise
the privileges enjoyed in common with British subjects in the
fisheries of Newfoundland and other parts of the North
Atlantic Coast.
2) The treaty of London was signed on Oct. 20, 1818 between
Great Britain and US.
- They agreed that US inhabitants would forever have
the same rights as British subjects to engage in all
types of fishing on a specified part of the British
coastline of Newfoundland and Labrador.
- Along the same coastline US inhabitants were forever
entitled to dry and cure fish in all bays, harbors, and
creeks.
- In turn USA renounced all other fishing rights by
inhabitants w/in 3 nautical miles of the coast of the
British dominions in America, except for the above and
except for purposes of shelter, repairs, wood
purchases and obtaining water.
3) Art. 1 Defined the rights and obligation of inhabitants of the
US as to fishing in certain parts of the British North Atlantic
coast waters. Differences arose as to the scope and
meaning of the article beginning with the seizure of
American fishing vessels, the controversy over fishing rights
continued until 1905.
Disputes:
- Right to employ non-US residents in fishing crews
- Imposition of customs and other duties
- Definition of term “bay”
- Method by which the 3n.m. limit of the territorial sea
was to be measured
4) Negotiations were undertaken and in 1906, for the purpose
of allaying friction until some definite adjustment could be
reached, agreed upon a modus vivendi.
5) The USA and Great Britain both Member States of the
Permanent Court of Arbitration signed a Special Agreement
according to which questions relating to fisheries on the
North Atlantic Coast were to be submitted to an arbitral
tribunal
ISSUES:
A.
a) WON the right of regulating reasonably the
liberties conferred by the Treaty resides in Great
Britain
b) Whether such reasonable exercise of the right is
permitted to Great Britain w/o the accord and
concurrence of the US
o Britain: The exercise of the liberty to take fish,
which the US inhabitants have forever in
common with us was subject, w/o the consent
of the US to reasonable regulation by Great
Britain, Canada or Newfoundland
o US: Exercise of such freedom was not subject
to limitations or restraints by Great Britain,
Canada or Newfoundland
RULING: Great Britain had the right to make regulations w/o the
consent of the US as to the exercise of the liberty to fish referred
to in Art. 1. However, limited by 1818 Treaty in that such
regulations must be bona fide and must not be in violation of the
Treaty
B. From where must be measured the 3 n.m of any of the
coasts, bays, creeks or harbors?
o Britain: The renunciation applied to all bays in
general
o US: Bays include only those bays that were
under the territiorial sovereignty of Great
Britain. It was further argued that the
renunciation applied only to bays 6 miles or
less in width, those bays being only territorial
bays, because the 3 n.m rule was a principle
of international law applicable to coasts and
should be strictly applied to bays.
RULING:
 Considering treaty used the general term “bays” w/o
qualification, Tribunal found that these words were to be
interpreted in a general sense as applying t oevery bay on
the coast in question that might be reasonably supposed to
have been considered as a bay by the Treaty under the
general provisions then prevailing.
 The Tribunal did not feel able to give a definition of “bays”.
 There was no principle of international law recognizing any
specified relation between the concavity of the bay and the
requirements for control by the territorial sovereignty.
 Tribunal decided that in case of bays, the 3 n.m were to be
measured from a straight line drawn across the body of
water at the place where it ceases to have the configuration
and characteristics of a bay.
 Added a recommendation under Art. 4 of the Special
Agreement to the effect that at the first point nearest to the
entrance of the bay where the width did not exceed 10
miles, a straight line was to be drawn across it and the line
of exclusion was to be 3 miles seaward.
RIGHT OF PASSAGE OVER INDIAN TERRITORY,
PORTUGAL V INDIA
Facts:
Portugal held several small enclaves of territory within India; one
on the coast but the others inland. Portugal claimed they had a
Right of passage to its inland territories over Indian land which
they alleged India had interfered with.
Issues:
 Whether Portugal's claim of the right of passage
through Indian territory was too vague and
contradictory to enable the Court to pass judgment
upon it under Article 38 (1) of the Statute of the ICJ
 Whether the right of passage of military personnel and
arms should have the same right of passage over India
territory as that of private persons and goods.
Reasons:
 India argued before the Court that practice between only
two states was not sufficient to form a local custom. The
Court rejected this reasoning, finding no reason why a
century and a quarter of practice based on mutual rights
and obligations was insufficient for local custom to arise.
This local practice, thus, prevailed over any general rules.
Ratio:
 Local customary law can exist as long as the elements in
the North Sea Continental Shelf case are made out.
 A right of passage does exist in regional custom.
 The Portuguese district of Daman, in India, comprised
Daman itself (on the coast) and two inland enclaves of
Dadra and Nagar-Aveli.
 In July and August 1954, Portuguese authority in the two
inland enclaves was overthrown;
 - India imposed restrictions upon Portuguese passage to
those enclaves, the lawfulness of which Portugal
disputed.
 India having already accepted the compulsory jurisdiction
of the I.C.J. by a declaration under art. 36(2) of the Court's
Statute, Portugal made such a declaration on 19 December
1955, and on 22 December 1955 filed an application
submitting the dispute to the Court.
 India raised six preliminary objections to the exercise of
jurisdiction by the Court, which, in rejecting four of India's
objections and joining two to the merits, held that
a) Portugal's reservation to its declaration permitting it at
any time to exclude categories of disputes from the
jurisdiction of the Court was not inconsistent with the
Court's Statute;
b) the filing by Portugal of an application 3 days after filing
its declaration under art. 36(2) of the Statute was not
inconsistent with the Statute;
c) nor did it deprive India of any right of reciprocity under
art. 36(2) so as to constitute an abuse of the Optional
Clause; and
d) in the circumstances of the case, diplomatic
negotiations had sufficiently disclosed the legal issue
submitted to the Court.

In its judgment on the merits, on 12 April 1960, the Court held

that
a) as in the proceedings both parties had invoked arguments
of international law, India's preliminary objection that its
reservation in its optional clause declaration excluded
disputes with regard to questions which by international law
fell exclusively within the jurisdiction of India could not be
upheld;
b) as both the dispute and the situation of the enclaves which
had given rise to Portugal's claim arose after 5February
1930, the dispute was not excluded from the Court's
jurisdiction by India's acceptance of its jurisdiction only for
post-1930 disputes and situations or facts;
c) although, in their origins in the eighteenth century,
Portugal's rights over the territories had been derived from
instruments not intended to transfer sovereignty, when
Great Britain became sovereign of that part of the country
Portuguese sovereignty had been recognized by the British
and had subsequently been tacitly recognized by India; also
with regard to private persons, civil officials, and goods in
general, there had existed a constant and uniform practice
allowing free passage between Daman and the enclaves,
which practice had been accepted as law by the parties;
accordingly Portugal had in 1954 a right of passage over
intervening Indian territory between its enclaves to the
extent necessary for the exercise of Portuguese
sovereignty over the enclaves and subject to the regulation
and control of India, in respect of private persons, civil
officials, and goods in general;
d) but Portugal did not have in 1954 any such right of passage
in respect of armed forces, armed police, and arms and
ammunition; and
e) India's refusal of passage through Indian territory where
there was tension was covered by its power of regulation
and control of Pakistan's right of passage; and therefore
India had not acted contrary to its obligations resulting from
Portugal's right of passage in respect of private persons,
civil officials, and goods in general.