anglo norwegian case

Parties: Norway and the United KingdomIssues: Straight baselines; baysForum: International Court of Justice (ICJ)Date of Decision: Judgment of 18 December 1951

ANGLO NORWEGIAN FISHERIES CASE

The coastal zone concerned in the dispute is of a distinctive configuration. Its length as the crow flies exceeds 1,500 kilometers.

The Norwegian coast comprises of (1)FJORDS rocks and bays; (2)reefs and islands some of which run

parallel to actual coast this part is known as the SKJAERGAARD ( a Norwegian word meaning a rock rampart).

HISTORICAL BACKGROUNDS

FJORDS ROCK

SKJAERGAARD

NORWEGIAN COASTLINE

The Norwegian coast does not constitute, a clear dividing line between land and sea.

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



BRITISH TRAWLER

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.

The Royal Norwegian Decree of 1935 covers the drawing of straight lines, called “baselines”, 4 miles deep into the sea.

This 4 miles area is reserved for fishing exclusively for Norwegian Nationals.

Norwegian had since the 19th century drawn a straight baseline linking the outermost points of the skjaergaard.

Such method had the effect of widening the area covered within the internal waters and the territorial sea thus reducing the area that would other be high seas.


The implementation of the Royal Norwegian Decree of the 1935 was met with resistance from the United Kingdom.

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.


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 UK and Norway had accepted the compulsory jurisdiction of the ICJ in accordance with Article 36 (2) of its statute.

Article 362. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:a. the interpretation of a treaty;b. any question of international law;c. the existence of any fact which, if established, would constitute a breach of an international obligation;d. the nature or extent of the reparation to be made for the breach of an international obligation.

FACTS OF THE CASE:

THE United Kingdom argued:a. That Norway could draw straight line across bays onlyb. The length of line drawn on the formations of the

Skjaergaard / fjord must not exceed 10 nautical miles ( the 10 mile rule)

c. That the Norwegian system of delimitation was unknown to the United Kingdom and that the system therefore lacked the essential notoriety to provide the basis of an historic title enforceable upon or opposable to the United Kingdom

Norway argued:That the baselines had to be drawn in such a way as to respect the general direction of the coast and in a reasonable manner

ARGUMENTS PRESENTED BY THE PARTIES:

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

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.

DISCUSSIONFORMATION OF CUSTOMARY LAWThe 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.

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 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.”

DISCUSSIONPersistent 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.

DISCUSSIONInitial 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…”

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”. The court held that Norway had refused to accept the rule as regards to it by 1870.

DISCUSSION: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.”

DISCUSSION

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.”

DISCUSSIONContrary 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.

“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. ”

DECISIONThe judgement was rendered on 18 December 1951:

a. By 10 to votes to 2 votes the Court held that the “method employed for the delimitation of the fisheries zone by the Royal Norwegian Decree of July 12th 1935 is not contrary to International Law;

b. By 8 votes to 4 the Court held that “the base-line fixed by the said Decree in application of this method are not contrary to international law.

CONCLUSIONThe 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.”

RULE ESTABLISHED

PERSISTENT OBJECTORA State can be bound by the general practice of other State even against it’s wishes if it does not protest the emergence of the rule and continues persistently to do so.The State must be sufficiently aware of emergence of the new practice and law.

END OF REPORT

anglo norwegian case

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