International Law

PROJECT ON ANGLO-NORWEGIAN FISHERIES CASE SUBMITTED TO, Miss Trishla Dubey (Asst. professor) International Law SUBMITTED BY, Shiwanshu Ranjan Prasad ROLL NO- 38, B.A.-LL.B 7th SEM

SCHOOL OF LAW GURU GHASIDAS UNIVERSITY, BILASPUR

DATE OF SUBMISSION-

DECLARATION I Shiwanshu Ranjan Prasad, Roll no -38 of B.A-LL.B 7th SEM, of Guru Ghasidas University, do hereby specially declare that this project is my original piece of work and I have not copied this project from any source without due acknowledgment. I am highly indebted from the author of the books that I have referred in my project as well as all the writers of the articles and the owners of the information taken from the website for it. It is only because of their contribution and proper guidance of my faculty adviser Asst. Prof. Miss Trishla Dubey that I was able to gather light on the subject.

Shiwanshu Ranjan Prasad Roll no.- 38 B.A-LL.B 7th SEM

CERTIFICATE I am glad here to submit this project on ANGLO-NORWEGIAN FISHERIES CASE as a part of my academic assignment. The project is based on Research Methodology. It further studies meaning. Sources and Methods of research Methodology and further discusses the Interview Method. I hope this would be significant for academic purposes as well as prove informative to all readers. Here though I declare that this paper is an original piece of research and all are borrowed text and ideas have been duly acknowledged.

Shiwanshu Ranjan Prasad Roll no.-38 B.A- LL.B 7th SEM

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ACKNOWLEDGMENT I am using this opportunity to express my deepest appreciation to all those who provided me the possibility to complete this project work. I pay my special gratitude and warm thanks to my subject teacher Asst. Prof. Miss Sonal Das for his aspiring guidance, invaluably constructive criticism and friendly advice during the project work. I would like to extend my sincere thanks to my respective seniors and dear friends for sharing their truthful and illuminating views on a number of issues and topics related to this project. Least but not the last I would also like to thank my parents who supported me economically a lot in finalizing within the limited time frame. So I could present it so well.

Shiwanshu Ranjan Prasad Roll no- 38 B.A-LL.B 7th SEM

SYNOPSIS ANGLO-NORWEGIAN FISHERIES CASE 1. INTRODUCTION 2. PARTIES OF CASE 3. CITATION 4. MAIN REASON OF DISPUTE ARISE 5. FACTS 6. FINDINGS OF THE COURT 7. IMPORTANT DATE 8. JUDGEMENT 10. CONCLUSION 11. WEBSITES

SUBMITTED TO

SUBMITTED BY

MISS TRISHLA DUBEY

SHIWANSHU RANJAN PRASAD

Asst. Prof.

B.A.LL.B. 7TH SEM

INTRODUCTION The ANGLO-NORWEGIAN FISHERIES CASE is also known as the Fisheries Case. And this case was brought before the Court by the United Kingdom of Great Britain and Northern Ireland against Norway. Whereas by letter of September 28th, 1949 filed the same day in the Registry of the Court, the Ambassador of the United Kingdom of Great Britain and Northern Ireland at The Hague filed in the Registry of the Court an Application, dated September 24th, 1949. Whereas, on September 28th, 1949, the Norwegian Government was duly informed by telegram of the filing of the Application, of which a certified true copy was despatched to it on September 29th, 1949, and whereas on October 24th, 1949, the Norwegian Government has acknowledged receipt of the Application.

PARTIES OF CASE 1. United Kingdom of Great Britain and Northern Ireland

Plaintiff

Vs. 2. Norwegian Government

Defendant

CITATION 1. Having regard to Articles 35, 36, 40 and 48 of the Statute of the Court. 2. Having regard to Articles 32, 35, 38 and 41 of the Rules of Court.

MAIN REASON OF DISPUTE ARISE 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 kilometres. Mountainous along its whole length, very bro- ken 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 com- plaints 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 12th. 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 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;   

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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.

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. 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 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. “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.”

IMPORTANT DATE 1. For the Memorial of' the Government of the United Kingdom: January 31st, 1950. 2. For the Counter-Memorial of the Norwegian Government: May 31st, 1950. 3. For the Reply of the Government of the United Kingdom: August 31st, 1950. 4. For the Rejoinder of the Norwegian Government: October 31st, 1950.

JUDGEMENT The judgment was rendered in favour 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

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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. 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.

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;   

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.

CONCLUSION 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. “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” 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.

WEBSITES 1. https://www.lawteacher.net 2. https://ruwanthikagunaratne.wordpress.com 3. https://icj-cij.org