|
[p .117]
The Court,
composed as above,
delivers the following Judgment:
On September 28th, 1949, the Government of the United Kingdom of Great
Britain and Northern Ireland filed in the Registry an Application
instituting proceedings before the Court against the Kingdom of Norway, the
subject of the proceedings being the validity or otherwise, under
international law, of the lines of delimitation of the Norwegian fisheries
zone laid down by the Royal Decree of July 12th, 1935, as amended by a
Decree of December 10th, 1937, for that part of Norway which is situated
northward of 66� 28.8' (or 66� 28'48") N. latitude. The Application refers
to the Declarations by which the United Kingdom and Norway have accepted the
compulsory jurisdiction of the Court in accordance with Article 36,
paragraph 2, of the Statute.
This Application asked the Court
"(a) to declare the principles of international law to be applied in
defining the base-lines, by reference to which the Norwegian Government is
entitled to delimit a fisheries zone, extending to [p 119] seaward 4 sea
miles from those lines and exclusively reserved for its own nationals, and
to define the said base-lines in so far as it appears necessary, in the
light of the arguments of the Parties, in order to avoid further legal
differences between them;
(b) 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 zone which, in accordance with the Court's decision under (a),
the Norwegian Government is entitled to reserve for its nationals."
Pursuant to Article 40, paragraph 3, of the Statute, the Application was
notified to the States entitled to appear before the Court. It was also
transmitted to the Secretary-General of the United Nations.
The Pleadings were filed within the time-limits prescribed by Order of
November 9th, 1949, and later extended by Orders of March 29th and October
4th, 1950, and January 10th, 1951. By application of Article 44, paragraph
2, of the Rules of Court, they were communicated to the Governments of
Belgium, Canada, Cuba, Iceland, Sweden, the United States of America and
Venezuela, at their request and with the authorization of the Court. On
September 24th, 1951, the Court, by application of Article 44, paragraph 3,
of the Rules, at the instance of the Government of Norway, and with the
agreement of the United Kingdom Government, authorized the Pleadings to be
made accessible to the public.
The case was ready for hearing on April 30th, 1951, and the opening of the
oral proceedings was fixed for September 25th, 1951. Public hearings were
held on September 25th, 26th, 27th, 28th and 29th, October 1st, 5th, 6th,
8th, 9th, 10th, nth, 12th, 13th, 15th, 17th, 18th, 19th, 20th, 24th, 25th,
26th, 27th and 29th. In the course of the hearings, the Court heard Sir Eric
Beckett, Agent, Sir Frank Soskice, Mr. Wilberforce and Professor Waldock,
Counsel, on behalf of the United Kingdom Government; and M. Arntzen, Agent
and Counsel, and Professor Bourquin, Counsel, on behalf of the Government of
Norway. In addition, technical explanations were given on behalf of the
United Kingdom Government by Commander Kennedy.
At the end of his argument, the Agent of the United Kingdom Government
presented the following submissions:
"The United Kingdom submits that the Court should decide that the maritime
limits which Norway is entitled to enforce as against the United Kingdom
should be drawn in accordance with the following principles: [p 120]
(1) That Norway is entitled to a belt of territorial waters of fixed
breadth�the breadth cannot, as a maximum, exceed 4 sea miles.
(2) That, in consequence, the outer limit of Norway's territorial waters
must never be more than 4 sea miles from some point on the base-line.
(3) That, subject to (4) (9) and (10) below, the base-line must be low-water
mark on permanently dry land (which is part of Norwegian territory) or the
proper closing line (see (7) below) of Norwegian internal waters.
(4) That, where there is a low-tide elevation situated within 4 sea miles of
permanently dry land, or of the proper closing line of Norwegian internal
waters, the outer limit of territorial waters may be 4 sea miles from the
outer edge (at low tide) of this low-tide elevation. In no other case may a
low-tide elevation be taken into account.
(5) That Norway is entitled to claim as Norwegian internal waters, on
historic grounds, all fjords and sunds which fall within the conception of a
bay as denned in international law, whether the proper entrance to the
indentation is more or less than 10 sea miles wide.
(6) That the definition of a bay in international law is a well-marked
indentation, whose penetration inland is in such proportion to the width of
its mouth as to constitute the indentation more than a mere curvature of the
coast.
(7) That, where an area of water is a bay, the principle which determines
where the closing line should be drawn, is that the closing line should be
drawn between the natural geographical entrance points where the indentation
ceases to have the configuration of a bay.
(8) That a legal strait is any geographical strait which connects two
portions of the high seas.
(9) That Norway is entitled to claim as Norwegian territorial waters, on
historic grounds, all the waters of the fjords and sunds which have the
character of a legal strait. Where the maritime belts, drawn from each
shore, overlap at each end of the strait, the limit of territorial waters is
formed by the outer rims of these two maritime belts. Where, however, the
maritime belts so drawn do not overlap, the limit follows the outer rims of-
each of these two maritime belts, until they intersect with the straight
line, joining the natural entrance points of the strait, after which
intersection the limit follows that straight line.
(10) That, in the case of the Vestfjord, the outer limit of Norwegian
territorial waters, at the south-westerly end of the fjord, is the pecked
green line shown on Charts Nos. 8 and 9 of Annex 35 of the Reply. [p 121]
(11) That Norway, by reason of her historic title to fjords and sunds, is
entitled to claim, either as territorial or as internal waters, the areas of
water lying between the island fringe and the mainland it Norway. In order
to determine what areas must be deemed to lie between the islands and the
mainland, and whether these areas are territorial or internal waters,
recourse must be had to Nos. (6) and (8) above, being the definitions of a
bay and of a legal strait.
(12) That Norway is not entitled, as against the United Kingdom, to enforce
any claim to waters not covered by the preceding principles. As between
Norway and the United Kingdom, waters off the coast of Norway north of
parallel 66� 28.8' N., which are not Norwegian by virtue of the
above-mentioned principles, are high seas.
(13) That Norway is under an international obligation to pay to the United
Kingdom compensation in respect of all the arrests since 16th September,
1948, of British fishing vessels in waters, which are high seas by virtue of
the application of the preceding principles."
Later, the Agent of the United Kingdom Government presented the following
Conclusions, at the end of his oral reply:
"The United Kingdom submits that the Court should decide that the maritime
limits which Norway is entitled to enforce as against the United Kingdom
should be drawn in accordance with the following principles:
(1) That Norway is entitled to a belt of territorial waters of fixed
breadth�the breadth cannot, as a maximum, exceed 4 sea miles.
(2) That, in consequence, the outer limit of Norway's territorial waters
must never be more than 4 sea miles from some point on the base-line.
(3) That, subject to Nos. (4), (9) and (10) below, the base-line must be
low-water mark on permanently dry land (which is part of Norwegian
territory) or the proper closing line (see No. (7) below) of Norwegian
internal waters.
(4) That, where there is a low-tide elevation situated within 4 sea miles of
permanently dry land, or of the proper closing line of Norwegian internal
waters, the outer limit of Norwegian territorial waters may be 4 sea miles
from the outer edge (at low tide) of this low-tide elevation. In no other
case may a low-tide elevation be taken into account.
(5) That Norway is entitled to claim as Norwegian internal waters, on
historic grounds, all fjords and sunds which fall within the conception of a
bay as defined in international law (see No. (6) below), whether the proper
closing line of the indendation is more or less than 10 sea miles long.[p
122]
(6) That the definition of a bay in international law is a well-marked
indentation, whose penetration inland is in such proportion to the width of
its mouth as to constitute the indentation more than a mere curvature of the
coast.
(7) That, where an area of water is a bay, the principle which determines
where the closing line should be drawn, is that the closing line should be
drawn between the natural geographical entrance points where the indentation
ceases to have the configuration of a bay.
(8) That a legal strait is any geographical strait which connects two
portions of the high seas.
(9) (a) That Norway is entitled to claim as Norwegian territorial waters, on
historic grounds, all the waters of the fjords and sunds which have the
character of legal straits.
(b) Where the maritime belts drawn from each shore overlap at each end of
the strait, the limit of territorial waters is formed by the outer rims of
these two maritime belts. Where, however, the maritime belts so drawn do not
overlap, the limit follows the outer rims of each of these two maritime
belts, until they intersect with the straight line, joining the natural
entrance points of the strait, after which intersection the limit follows
that straight line.
(10) That, in the case of the Vestfjord, the outer limit of Norwegian
territorial waters, at the south-westerly end of the fjord, is the pecked
green line shown on Charts Nos. 8 and 9 of Annex 35 of the Reply.
(11) That Norway, by reason of her historic title to fjords and sunds (see
Nos. (5) and (9) (a) above), is entitled to claim, either as internal or as
territorial waters, the areas of water lying between the island fringe and
the mainland of Norway. In order to determine what areas must be deemed to
lie between the island fringe and the mainland, and whether these areas are
internal or territorial waters, the principles of Nos. (6), (7), (8) and (9)
(b) must be applied to indentations in the island fringe and to indentations
between the island fringe and the mainland�those areas which lie in
indentations having the character of bays, and within the proper closing
lines thereof, being deemed to be internal waters; and those areas which lie
in indentations having the character of legal straits, and within the proper
limits thereof, being deemed to be territorial waters.
(12) That Norway is not entitled, as against the United Kingdom, to enforce
any claims to waters not covered by the preceding principles. As between
Norway and the United Kingdom, waters off the coast of Norway north of
parallel 66� 28.8' N., which are not Norwegian by virtue of the
above-mentioned principles, are high seas. [p 123]
(13) That the Norwegian Royal Decree of 12th July, 1935, is not enforceable
against the United Kingdom to the extent that it claims as Norwegian waters
(internal or territorial waters) areas of water not covered by Nos.
(I)-(II).
(14) That Norway is under an international obligation to pay to the United
Kingdom compensation is respect of all the arrests since 16th September,
1948, of British fishing vessels in waters which are high seas by virtue of
the application of the preceding principles.
Alternatively to Nos. (1) to (13) (if the Court should decide to determine
by its judgment the exact limits of the territorial waters which Norway is
entitled to enforce against the United Kingdom), that Norway is not entitled
as against the United Kingdom to claim as Norwegian waters any areas of
water off the Norwegian coasts north of parallel 66� 28.8' N. which are
outside the pecked green line drawn on the charts which form Annex 35 of the
Reply.
Alternatively to Nos. (8) to (n) (if the Court should hold that the waters
of the Indreleia are Norwegian internal waters), the following are
substituted for Nos. (8) to (II):
I. That, in the case of the Vestfjord, the outer limit of Norwegian
territorial waters at the south-westerly end of the fjord is a line drawn 4
sea miles seawards of a line joining the Skomvar lighthouse at Rost to
Kalsholmen lighthouse in Tennholmerne until the intersection of the former
line with the arcs of circles in the pecked green line shown on Charts 8 and
9 of Annex 35 of the Reply.
II. That Norway, by reason of her historic title to fjords and sunds, is
entitled to claim as internal waters the areas of water lying between the
island fringe and the mainland of Norway. In order to determine what areas
must be deemed to lie between the island fringe and the mainland, the
principles of Nos. (6) and (7) above must be applied to the indentations in
the island fringe and to the indentations between the island fringe and the
mainland� those areas which lie in indentations having the character of
bays, and within the proper closing lines thereof, being deemed to lie
between the island fringe and the mainland."
At the end of his argument, the Norwegian Agent presented, on behalf of his
government, the following submissions, which he did not modify in his oral
rejoinder:
"Having regard to the fact that the Norwegian Royal Decree of July 12th,
1935, is not inconsistent with the rules of international law binding upon
Norway, and
having regard to the fact that Norway possesses, in any event, an historic
title to all the waters included within the limits laid down by that decree,
[p 124]
May it please the Court,
in one single judgment,
rejecting all submissions to the contrary,
to adjudge and declare that the delimitation of the fisheries zone fixed by
the Norwegian Royal Decree of July 12th, 1935, is not contrary to
international law."
***
The facts which led the United Kingdom to bring the case before the Court
are briefly as follows.
The historical facts laid before the Court establish that as the result of
complaints from the King of Denmark and of Norway, at the beginning of the
seventeenth century, British fishermen refrained from fishing in Norwegian
coastal waters for a long period, from 1616-1618 until 1906.
In 1906 a few British fishing vessels appeared off the coasts of Eastern
Finnmark. From 1908 onwards they returned in greater numbers. These were
trawlers equipped with improved and powerful gear. The local population
became perturbed, and measures were taken by the Norwegian Government with a
view to specifying the limits within which fishing was prohibited to
foreigners.
The first incident occurred in 1911 when a British trawler was seized and
condemned for having violated these measures. Negotiations ensued between
the two Governments. These were interrupted by the war in 1914. From 1922
onwards incidents recurred. Further conversations were initiated in 1924. In
1932, British trawlers, extending the range of their activities, appeared in
the sectors off the Norwegian coast west of the North Cape, and the number
of warnings and arrests increased. On July 27th, 1933, the United Kingdom
Government sent a memorandum to the Norwegian Government complaining that in
delimiting the territorial sea the Norwegian authorities had made use of
unjustifiable base-lines. On July 12th, 1935, a Norwegian Royal Decree was
enacted delimiting the Norwegian fisheries zone north of 66� 28.8' North
latitude.
The United Kingdom made urgent representations in Oslo in the course of
which the question of referring the dispute to the Permanent Court of
International Justice was raised. Pending the result of the negotiations,
the Norwegian Government made it known that Norwegian fishery patrol vessels
would deal leniently with foreign vessels fishing a certain distance within
the fishing limits. In 1948, since no agreement had been reached, the
Norwegian Government abandoned its lenient enforcement of the 1935 Decree;
[p 125] incidents then became more and more frequent. A considerable number
of British trawlers were arrested and condemned. It was then that the United
Kingdom Government instituted the present proceedings.
***
The Norwegian Royal Decree of July 12th, 1935, concerning the delimitation
of the Norwegian fisheries zone sets out in the preamble the considerations
on which its provisions are based. In this connection it refers to
"well-established national titles of right", "the geographical conditions
prevailing on the Norwegian coasts", "the safeguard of the vital interests
of the inhabitants of the northernmost parts of the country"; it further
relies on the Royal Decrees of February 22nd, 1812, October 16th, 1869,
January 5th, 1881, and September 9th, 1889.
The Decree provides that "lines of delimitation towards the high sea of the
Norwegian fisheries zone as regards that part of Norway which is situated
northward of 66� 28.8' North latitude .... shall run parallel with straight
base-lines drawn between fixed points on the mainland, on islands or rocks,
starting from the final point of the boundary line of the Realm in the
easternmost part of the Varangerfjord and going as far as Trama in the
County of Nordland". An appended schedule indicates the fixed points
between which the base-lines are drawn.
The subject of the dispute is clearly indicated under point 8 of the
Application instituting proceedings: "The subject of the dispute is the
validity or otherwise under international law of the lines of delimitation
of the Norwegian fisheries zone laid down by the Royal Decree of 1935 for
that part of Norway which is situated northward of 66� 28.8' North
latitude." And further on: " .... the question at issue between the two
Governments is whether the lines prescribed by the Royal Decree of 1935 as
the base-lines for the delimitation of the fisheries zone have or have not
been drawn in accordance with the applicable rules of international law".
Although the Decree of July 12th, 1935, refers to the Norwegian fisheries
zone and does not specifically mention the territorial sea, there can be no
doubt that the zone delimited by this Decree is none other than the sea area
which Norway considers to be her territorial sea. That is how the Parties
argued the question and that is the way in which they submitted it to the
Court for decision.
The Submissions presented by the Agent of the Norwegian Government
correspond to the subject of the dispute as indicated in the Application.
The propositions formulated by the Agent of the United Kingdom Government at
the end of his first speech and revised by him at the end of his oral reply
under the heading of "Conclusions" are more complex in character and must be
dealt with in detail. [p 126]
Points I and 2 of these "Conclusions" refer to the extent of Norway's
territorial sea. This question is not the subject of the present dispute. In
fact, the 4-mile limit claimed by Norway was acknowledged by the United
Kingdom in the course of the proceedings.
Points 12 and 13 appear to be real Submissions which accord with the United
Kingdom's conception of international law as sot out under points 3 to 11.
Points 3 to 11 appear to be a set of propositions which, in the form of
definitions, principles or rules, purport to justify certain contentions
and do not constitute a precise and direct statement of a claim. The subject
of the dispute being quite concrete, the Court cannot entertain the
suggestion made by the Agent of the United Kingdom Government at the sitting
of October 1st, 1951, that the Court should deliver a Judgment which for the
moment would confine itself to adjudicating on the definitions, principles
or rules stated, a suggestion which, moreover, was objected to by the Agent
of the Norwegian Government at the sitting of October 5th, 1951. These are
elements which might furnish reasons in support of the Judgment, but cannot
constitute the decision. It further follows that even understood in this
way, these elements may be taken into account only in so far as they would
appear to be relevant for deciding the sole question in dispute, namely, the
validity or otherwise under international law of the lines of delimitation
laid down by the 1935 Decree.
Point 14, which seeks to secure a decision of principle concerning Norway's
obligation to pay to the United Kingdom compensation in respect of all
arrests since September 16th, 1948, of British fishing vessels in waters
found to be high seas, need not be considered, since the Parties had agreed
to leave this question to subsequent settlement if it should arise.
The claim of the United Kingdom Government is founded on what it regards as
the general international law applicable to the delimitation of the
Norwegian fisheries zone.
The Norwegian Government does not deny that there exist rules of
international law to which this delimitation must conform. It contends that
the propositions formulated by the United Kingdom Government in its
"Conclusions" do not possess the character attributed to them by that
Government. It further relies on its own system of delimitation which it
asserts to be in every respect in conformity with the requirements of
international law.
The Court will examine in turn these various aspects of the claim of the
United Kingdom and of the defence of the Norwegian Government. [p 127]
***
The coastal zone concerned in the dispute is of considerable length. It lies
north of latitude 66� 28.8' N., that is to say, north of the Arctic Circle,
and it includes the coast of the mainland of Norway and all the islands,
islets, rocks and reefs, known by the name of the "skjærgaard" (literally,
rock rampart), together with all Norwegian internal and territorial waters.
The coast of the mainland, which, without taking any account of fjords,
bays and minor indentations, is over 1,500 kilometres in length, is of a
very distinctive configuration. Very broken along its whole length, it
constantly opens out into indentations often penetrating for great distances
inland: the Por Sanger fjord, for instance, penetrates 75 sea miles inland.
To the west, the land configuration stretches out into the sea: the large
and small islands, mountainous in character, the islets, rocks and reefs,
some always above water, others emerging only at low tide, are in truth but
an extension of the Norwegian mainland. The number of insular formations,
large and small, which make up the " skjærgaard ", is estimated by the
Norwegian Government to be one hundred and twenty thousand. From the
southern extremity of the disputed area to the North Cape, the " skjærgaard
" lies along the whole of the coast of the mainland; east of the North Cape,
the " skjærgaard " ends, but the coast line continues to be broken by large
and deeply indented fjords.
Within the " skjærgaard ", almost every island has its large and its small
bays; countless arms of the sea, straits, channels and mere waterways serve
as a means of communication for the local population which inhabits the
islands as it does the mainland. The coast of the mainland does not
constitute, as it does in practically all other countries, a clear dividing
line between land and sea. What matters, what really constitutes the
Norwegian coast line, is the outer line of the " skjærgaard ".
The whole of this region is mountainous. The North Cape, a sheer rock little
more than 300 metres high, can be seen from a considerable distance; there
are other summits rising to over a thousand metres, so that the Norwegian
coast, mainland and "skjaergaard", is visible from far off.
Along the coast are situated comparatively shallow banks, veritable
under-water terraces which constitute fishing grounds where fish are
particularly abundant ; these grounds were known to Nor-wegian fishermen and
exploited by them from time immemorial. Since these banks lay within the
range of vision, the most desirable fishing grounds were always located and
identified by means of the method of alignments ("meds"), at points where
two lines drawn between points selected on the coast or on islands
intersected. [p 128]
In these barren regions the inhabitants of the coastal zone derive their
livelihood essentially from fishing.
Such are the realities which must be borne in mind in appraising the
validity of the United Kingdom contention that the limits of the Norwegian
fisheries zone laid down in the 1935 Decree are contrary to international
law.
The Parties being in agreement on the figure of 4 miles for the breadth of
the territorial sea, the problem which arises is from what base-line this
breadth is to be reckoned. The Conclusions of the United Kingdom are
explicit on this point: the base-line must be low-water mark on permanently
dry land which is a part of Norwegian territory, or the proper closing line
of Norwegian internal waters.
The Court has no difficulty in finding that, for the purpose of measuring
the breadth of the territorial sea, it is the low-water mark as opposed to
the high-water mark, or the mean between the two tides, which has generally
been adopted in the practice of States. This criterion is the most
favourable to the coastal State and clearly shows the character of
territorial waters as appurtenant to the land territory. The Court notes
that the Parties agree as to this criterion, but that they differ as to its
application.
The Parties also agree that in the case of a low-tide elevation (drying
rock) the outer edge at low water of this low-tide elevation maybe taken
into account as a base-point for calculating the breadth of the territorial
sea. The Conclusions of the United Kingdom Government add a condition which
is not admitted by Norway, namely, that, in order to be taken into account,
a drying rock must be situated within 4 miles of permanently dry land.
However, the Court does not consider it necessary to deal with this
question, inasmuch as Norway has succeeded in proving, after both Parties
had given their interpretation of the charts, that in fact none of the
drying rocks used by her as base points is more than 4 miles from
permanently dry land.
The Court finds itself obliged to decide whether the relevant low-water mark
is that of the mainland or of the "skjaergaard". Since the mainland is
bordered in its western sector by the "skjaergaard", which constitutes a
whole with the mainland, it is the outer line of the "skjaergaard" which
must be taken into account in delimiting the belt of Norwegian territorial
waters. This solution is dictated by geographic realities.
Three methods have been contemplated to effect the application of the
low-water mark rule. The simplest would appear to be the method of the trace
parallele, which consists of drawing the outer limit of the belt of
territorial waters by following the coast in all its sinuosities. This
method may be applied without difficulty to an ordinary coast, which is not
too broken. Where a coast is deeply [p 129] indented and cut into, as is
that of Eastern Finnmark, or where it is bordered by an archipelago such as
the " skjærgaard " along the western sector of the coast here in question,
the base-line becomes independent of the low-water mark, and can only be
determined by means of a geometrical construction. In such circumstances
the line of the low-water mark can no longer be put forward as a rule
requiring the coastline to be followed in all its sinuosities. Nor can one
characterize as exceptions to the rule the very many derogations which would
be necessitated by such a rugged coast: the rule would disappear under the
exceptions. Such a coast, viewed as a whole, calls for the application of a
different method; that is, the method of base-lines which, within reasonable
limits, may depart from the physical line of the coast.
It is true that the experts of the Second Sub-Committee of the Second
Committee of the 1930 Conference for the codification of international law
formulated the low-water mark rule somewhat strictly ("following all the
sinuosities of the coast"). But they were at the same time obliged to admit
many exceptions relating to bays, islands near the coast, groups of islands.
In the present case this method of the trace paraliele, which was invoked
against Norway in the Memorial, was abandoned in the written Reply, and
later in the oral argument of the Agent of the United Kingdom Government.
Consequently, it is no longer relevant to the case. "On the other hand", it
is said in the Reply, the courbe tangente�or, in English, 'envelopes of arcs
of circles'�method is the method which the United Kingdom considers to be
the correct one"
The arcs of circles method, which is constantly used for determining the
position of a point or object at sea, is a new technique in so far as it is
a method for delimiting the territorial sea. This technique was proposed by
the United States delegation at the 1930 Conference for the codification of
international law. Its purpose is to secure the application of the principle
that the belt of territorial waters must follow the line of the coast. It is
not obligatory by law, as was admitted by Counsel for the United Kingdom
Government in his oral reply. In these circumstances, and although certain
of the Conclusions of the United Kingdom are founded on the application of
the arcs of circles method, the Court considers that it need not deal with
these Conclusions in so far as they are based upon this method.
The principle that the belt of territorial waters must follow the general
direction of the coast makes it possible to fix certain criteria valid for
any delimitation of the territorial sea; these criteria will be elucidated
later. The Court will confine itself at this stage to noting that, in order
to apply this principle, several States have deemed it necessary to follow
the straight base-lines method and that they have not encountered objections
of principle by other States. This method consists of selecting appropriate
points on the [p 130] low-water mark and drawing straight lines between
them. This has been done, not only in the case of well-defined bays, but
also in cases of minor curvatures of the coast line where it was solely a
question of giving a simpler form to the belt of territorial waters.
It has been contended, on behalf of the United Kingdom, that Norway may draw
straight lines only across bays. The Court is unable to share this view. If
the belt of territorial waters must follow the outer lineof the
"skjærgaard", and if the method of straight baselines must be admitted in
certain cases, there is no valid reason to draw them only across bays, as in
Eastern Finnmark, and not also to draw them between islands, islets and
rocks, across the sea areas separating them, even when such areas do not
fall within the conception of a bay. It is sufficient that they should be
situated between the island formations of the "skjaergaard", inter fauces
terrarum.
The United Kingdom Government concedes that straight lines, regardless of
their length, may be used only subject to the conditions set out in point 5
of its Conclusions, as follows:
"Norway is entitled to claim as -Norwegian internal waters, on historic
grounds, all fjords and sunds which fall within the conception of a bay as
defined in international law (see No. (6) below), whether the proper closing
line of the indentation is more or less than 10 sea miles long."
A preliminary remark must be made in respect of this point.
In the opinion of the United Kingdom Government, Norway is entitled, on
historic grounds, to claim as internal waters all fjords and sunds which
have the character of a bay. She is also entitled on historic grounds to
claim as Norwegian territorial waters all the waters of the fjords and sunds
which have the character of legal straits (Conclusions, point 9), and,
either as internal or as territorial waters, the areas of water lying
between the island fringe and the mainland (point 11 and second alternative
Conclusion II).
By "historic waters" are usually meant waters which are treated as internal
waters but which would not have that character were it not for the existence
of an historic title. The United Kingdom Government refers to the notion of
historic titles both in respect of territorial waters and internal waters,
considering such titles, in both cases, as derogations from general
international law. In its opinion Norway can justify the claim that these
waters are territorial or internal on the ground that she has exercised the
necessary jurisdiction over them for a long period without opposition from
other States, a kind of -possessio longi temporis, with the result that her
jurisdiction over these waters must now be recognized although it
constitutes a derogation from the rules in force. [p 131]
Norwegian sovereignty over these waters would constitute an exception,
historic titles justifying situations which would otherwise be in conflict
with international law.
As has been said, the United Kingdom Government concedes that Norway is
entitled to claim as internal waters all the waters of fjords and sunds
which fall within the conception of a bay as defined in international law
whether the closing line of the indentation is more or less than ten sea
miles long. But the United Kingdom Government concedes this only on the
basis of historic title; it must therefore be taken that that Government has
not abandoned its contention that the ten-mile rule is to be regarded as a
rule of international 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.
In any event 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.
The Court now comes to the question of the length of the baselines drawn
across the waters lying between the various formations of the "skjaergaard".
Basing itself on the analogy with the alleged general rule of ten miles
relating to bays, the United Kingdom Government still maintains on this
point that the length of straight lines must not exceed ten miles.
In this connection, the practice of States does not justify the formulation
of any general rule of law. The attempts that have been made to subject
groups of islands or coastal archipelagoes to conditions analogous to the
limitations concerning bays (distance between the islands not exceeding
twice the breadth of the territorial waters, or ten or twelve sea miles),
have not got beyond the stage of proposals.
Furthermore, apart from any question of limiting the lines to ten miles, it
may be that several lines can be envisaged. In such cases the coastal State
would seem to be in the best position to appraise the local conditions
dictating the selection.
Consequently, the Court is unable to share the view of the United Kingdom
Government, that "Norway, in the matter of base-lines, now claims
recognition of an exceptional system". As will be shown later, all that the
Court can see therein is the application of general international law to a
specific case. [p 132]
The Conclusions of the United Kingdom, points 5 and 9 to n, refer to waters
situated between the base-lines and the Norwegian mainland. The Court is
asked to hold that on historic grounds these waters belong to Norway, but
that they are divided into two categories: territorial and internal waters,
in accordance with two criteria which the Conclusions regard as well founded
in international law, the waters falling within the conception of a bay
being deemed to be internal waters, and those having the character of legal
straits being deemed to be territorial waters.
As has been conceded by the United Kingdom, the " skjærgaard " constitutes a
whole with the Norwegian mainland; the waters between the base-lines of the
belt of territorial waters and the mainland are internal waters. However,
according to the argument of the United Kingdom a portion of these waters
constitutes territorial waters. These are inter alia the waters followed by
the navigational route known as the Indreleia. It is contended that since
these waters have this character, certain consequences arise with regard to
the determination of the territorial waters at the end of this water-way
considered as a maritime strait.
The Court is bound to observe that the Indreleia is not a strait at all, but
rather a navigational route prepared as such by means of artificial aids to
navigation provided by Norway. In these circumstances the Court is unable to
accept the view that the Indreleia, for the purposes of the present case,
has a status different from that of the other waters included in the "
skjærgaard ".
Thus the Court, confining itself for the moment to the Conclusions of the
United Kingdom, finds that the Norwegian Government in fixing the
base-lines for the delimitation of the Norwegian fisheries zone by the 1935
Decree has not violated international law.
***
It does not at all follow that, in the absence of rules having the
technically precise character alleged by the United Kingdom Government, the
delimitation undertaken by the Norwegian Government in 1935 is not subject
to certain principles which make it possible to judge as to its validity
under 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 133]
In this connection, certain basic considerations inherent in the nature of
the territorial sea, bring to light certain criteria which, though not
entirely precise, can provide courts with an adequate basis for their
decisions, which can be adapted to the diverse, facts in question.
Among these considerations, some reference must be made to the close
dependence of the territorial sea upon the land domain. It is the land which
confers upon the coastal State a right to the waters off its coasts. It
follows that while such a State must be allowed the latitude necessary in
order to be able to adapt its delimitation to practical needs and local
requirements, the drawing of base-lines must not depart to any appreciable
extent from the general direction of the coast.
Another fundamental consideration, of particular importance in this case, is
the more or less close relationship existing between certain sea areas and
the land formations which divide or surround them. The real question raised
in the choice of base-lines is in effect whether certain sea areas lying
within these lines are sufficiently closely linked to the land domain to be
subject to the regime of internal waters. This idea, which is at the basis
of the determination of the rules relating to bays, should be liberally
applied in the case of a coast, the geographical configuration of which is
as unusual as that of. Norway.
Finally, there is one consideration not to be overlooked, the scope of which
extends beyond purely geographical factors: that of certain economic
interests peculiar to a region, the reality and importance of which are
clearly evidenced by a long usage.
Norway puts forward the 1935 Decree as the application of a traditional
system of delimitation, a system which she claims to be in complete
conformity with international law. The Norwegian Government has referred in
this connection to an historic title, the meaning of which was made clear by
Counsel for Norway at the sitting on October 12th, 1951: "The Norwegian
Government does not rely upon history to justify exceptional rights, to
claim areas of sea which the general law would deny; it invokes history,
together with other factors, to justify the way in which it applies the
general law." This conception of an historic title is in consonance with
the Norwegian Government's understanding of the general rules of
international law. In its 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. [p
134]
The Court must ascertain precisely what this alleged system of delimitation
consists of, what is its effect in law as against the United Kingdom, and
whether it was applied by the 1935 Decree in a manner which conformed to
international law.
It is common ground between the Parties that on the question of the
existence of a Norwegian system, the Royal Decree of February 22nd, 1812, is
of cardinal importance. This Decree is in the following terms: "We wish to
lay down as a rule that, in all cases when there is a question of
determining the limit of our territorial sovereignty at sea, that limit
shall be reckoned at the distance of one ordinary sea league from the island
or islet farthest from the mainland, not covered by the sea; of which all
proper authorities shall be informed by rescript."
This text does not clearly indicate how the base-lines between the islands
or islets farthest from the mainland were to be drawn. In particular, it
does not say in express terms that the lines must take the form of straight
lines drawn between these points. But it may be noted that it was in this
way that the 1812 Decree was invariably construed in Norway in the course of
the 19th and 20th centuries.
The Decree of October 16th, 1869, relating to the delimitation of Sunnmore,
and the Statement of Reasons for this Decree, are particularly revealing as
to the traditional Norwegian conception and the Norwegian construction of
the Decree of 1812. It was by reference to the 1812 Decree, and specifically
relying upon "the conception" adopted by that Decree, that the Ministry of
the Interior justified the drawing of a straight line 26 miles in length
between the two outermost points of the "skjaergaard". The Decree of
September 9th, 1889, relating to the delimitation of Romsdal and Nordmdre,
applied the same method, drawing four straight lines, respectively 14.7
miles, 7 miles, 23.6 miles and 11.6 miles in length.
The 1812 Decree was similarly construed by the Territorial Waters Boundary
Commission (Report of February 29th, 1912, pp. 48-49), as it was in the
Memorandum of January 3rd, 1929, sent by the Norwegian Government to the
Secretary-General of the League of Nations, in which it was said : "The
direction laid down by this Decree should be interpreted in the sense that
the starting-point for calculating the breadth of the territorial waters
should be a line drawn along the 'skjaergaard' between the furthest rocks
and, where there is no 'skjærgaard', between the extreme points." The
judgment delivered by the Norwegian Supreme Court in 1934, in the St. Just
case, provided final authority for this interpretation. This conception
accords with the geographical characteristics of the Norwegian coast and is
not contrary to the principles of international law. [p 135]
It should, however, be pointed out that whereas the 1812 Decree designated
as base-points "the island or islet farthest from the mainland not covered
by the sea", Norwegian governmental practice subsequently interpreted this
provision as meaning that the limit was to be reckoned from the outermost
islands and islets "not continuously covered by the sea".
The 1812 Decree, although quite general in its terms, had as its immediate
object the fixing of the limit applicable for the purposes of maritime
neutrality. However, as soon as the Norwegian Government found itself
impelled by circumstances to delimit its fisheries zone, it regarded that
Decree as laying down principles to be applied for purposes other than
neutrality. The Statements of Reasons of October 1st, 1869, December 20th,
1880, and May 24th, 1889, are conclusive on this point. They also show that
the delimitation effected in 1869 and in 1889 constituted a reasoned
application of a definite system applicable to the whole of the Norwegian
coast line, and was not merely legislation of local interest called for by
any special requirements. The following passage from the Statement of
Reasons of the 1869 Decree may in particular be referred to: "My Ministry
assumes that the general rule mentioned above [namely, the four-mile rule],
which is recognized by international law for the determination of the
extent of a country's territorial waters, must be applied here in such a way
that the sea area inside a line drawn parallel to a straight line between
the two outermost islands or rocks not covered by the sea, Svinöy to the
south and Storholmen to the north, and one geographical league north-west of
that straight line, should be considered Norwegian maritime territory."
The 1869 Statement of Reasons brings out all the elements which go to make
up what the Norwegian Government describes as its traditional system of
delimitation: base-points provided by the islands or islets farthest from
the mainland, the use of straight lines joining up these points, the lack of
any maximum length for such lines. The judgment of the Norwegian Supreme
Court in the St. Just case upheld this interpretation and added that the
1812 Decree had never been understood or applied "in such a way as to make
the boundary follow the sinuosities of the coast or to cause its position to
be determined by means of circles drawn round the points of the Skjærgaard
or of the mainland furthest out to sea�a method which it would be very
difficult to adopt or to enforce in practice, having regard to the special
configuration of this coast". Finally, it is established that, according to
the Norwegian system, the base-lines must follow the general direction of
the coast, which is in conformity with international law.
Equally significant in this connection is the correspondence which passed
between Norway and France between 1869-1870. On December 21st, 1869, only
two months after the promulgation [p 136] of the Decree of October 16th
relating to the delimitation of Sunnmöre, the French Government asked the
Norwegian Government for an explanation of this enactment. It did so basing
itself upon "the principles of international law". In a second Note dated
December 30th of the same year, it pointed out that the distance between the
base-points was greater than 10 sea miles, and that the line joining up
these points should have been a broken line following the configuration of
the coast. In a Note of February 8th, 1870, the Ministry for Foreign
Affairs, also dealing with the question from the point of view of
international law, replied as follows:
"By the same Note of December 30th, Your Excellency drew my attention to the
fixing of the fishery limit in the Sunnmöre Archipelago by a straight line
instead of a broken line. According to the view held by your Government, as
the distance between the islets of Svinöy and Storholmen is more than 10 sea
miles, the fishery limit between these two points should have been a broken
line following the configuration of the coast line and nearer to it than the
present limit. 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 an international law. Still less would it appear
to have any foundation in reality: one bay, by reason of the varying
formations of the coast and sea-bed, may have an entirely different
character from that of another bay of the same width. It seems to me rather
that local conditions and considerations of what is practicable and
equitable should be decisive in specific cases. The configuration of our
coasts in no way resembles that of the coasts of other European countries,
and that fact alone makes the adoption of any absolute rule of universal
application impossible in this case.
I venture to claim that all these reasons militate in favour of the line
laid down by the Decree of October 16th. A broken line, conforming closely
to the indentations of the coast line between Svinoy and Storholmen, would
have resulted in a boundary so involved and so indistinct that it would have
been impossible to exercise any supervision over it...."
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. And indeed, the French Government did not pursue the
matter. In a Note of July 27th, 1870, it is said that, while maintaining its
standpoint with regard to principle, it was prepared to accept the
delimitation laid down by the Decree of October 16th, 1869, as resting upon
"a practical study of the configuration of the coast line and of the
conditions of the inhabitants".
The Court, having thus established the existence and the constituent
elements of the Norwegian system of delimitation, further finds that this
system was consistently applied by Norwegian [p 137] authorities and that it
encountered no opposition on the part of other States.
The United Kingdom Government has however sought to show that the Norwegian
Government has not consistently followed the principles of delimitation
which, it claims, form its system, and that it has admitted by implication
that some other method would be necessary to comply with, international law.
The documents to which the Agent of the Government of the United Kingdom
principally referred at the hearing on October 20th, 1951, relate to the
period between 1906 and 1908, the period in which British trawlers made
their first appearance off the Norwegian coast, and which, therefore, merits
particular attention.
The United Kingdom Government pointed out that the law of June 2nd, 1906,
which prohibited fishing by foreigners, merely forbade fishing in "Norwegian
territorial waters", and it deduced from the very general character of this
reference that no definite system existed. The Court is unable to accept
this interpretation, as the object of the law was to renew the prohibition
against fishing and not to undertake a precise delimitation of the
territorial sea.
The second document relied upon by the United Kingdom Government is a letter
dated March 24th, 1908, from the Minister for Foreign Affairs to the
Minister of National Defence. The United Kingdom Government thought that
this letter indicated an adherence by Norway to the low-water mark rule
contrary to the present Norwegian position. This interpretation cannot be
accepted; it rests upon a confusion between the low-water mark rule as
understood by the United Kingdom, which requires that all the sinuosities
of the coast line at low tide should be followed, and the general practice
of selecting the low-tide mark rather than that of the high tide for
measuring the extent of the territorial sea.
The third document referred to is a Note, dated November nth, 1908, from the
Norwegian Minister for Foreign Affairs to the French Charge d'Affaires at
Christiania, in reply to a request for informa-tion as to whether Norway had
modified the limits of her territorial waters. In it the Minister said:
"Interpreting Norwegian regulations in this matter, whilst at the same time
conforming to the general rule of the Law of Nations, this Ministry gave its
opinion that the distance from the coast should be measured from the
low-water mark and that every islet not continuously covered by the sea
should be reckoned as a starting-point." The United Kingdom Government
argued that by the reference to "the general rule of the Law of Nations",
instead of to its own system of delimitation entailing the use of straight
lines, and, furthermore, by its statement that "every islet not
continuously covered by the sea should be reckoned as a starting-point", the
Norwegian Government had completely departed from what it to-day describes
as its system. [p 138]
It must be remembered that the request for information to which the
Norwegian Government was replying related not to the use of straight lines,
but to the breadth of Norwegian territorial waters. The point of the
Norwegian Government's reply was that there had been no modification in the
Norwegian legislation. Moreover, it is impossible to rely upon a few words
taken from a single note to draw the conclusion that the Norwegian
Government had abandoned a position which its earlier official documents had
clearly indicated.
The Court considers 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. They may be
easily understood in the light of the variety of the facts and conditions
prevailing in the long period which has elapsed since 1812, and are not such
as to modify the conclusions reached by the Court.
In the light of these considerations, and in the absence of convincing
evidence to the contrary, the Court is bound to hold that the Norwegian
authorities applied their system of delimitation con-sistently and
uninterruptedly from 1869 until the time when the dispute arose.
From the standpoint of international law, it is now necessary to consider
whether the application of the Norwegian system encountered any opposition
from foreign States.
Norway has been in a position to argue without any contradiction that
neither the promulgation of her delimitation Decrees in 1869 and in 1889,
nor their application, gave rise to any opposition on the part of foreign
States. Since, moreover, these Decrees constitute, as has been shown above,
the application of a well-defined and uniform system, it is indeed this
system itself which would reap the benefit of general toleration, the basis
of an historical consolidation which would make it enforceable as against
all States.
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. One cannot indeed
consider as raising objections the discussions to which the Lord Roberts
incident gave rise in 1911, for the controversy which arose in this
connection related to two questions, that of the four-mile limit, and that
of Norwegian sovereignty over the Varangerfjord, both of which were
unconnected with the position of base-lines. It would appear that it was
only in its Memorandum of July 27th, 1933, that the United Kingdom made a
formal and definite protest on this point.
The United Kingdom Government has argued that the Norwegian system of
delimitation was not known to it and that the [p 139] system therefore
lacked the notoriety essential to provide the basis of an historic title
enforceable against it. The Court is unable to accept this view. As a
coastal State on the North Sea, greatly interested in the fisheries in this
area, as a maritime Power traditionally concerned with the law of the sea
and concerned particularly to defend the freedom of the seas, the United
Kingdom could not have been ignorant of the Decree of 1869 which had at once
provoked a request for explanations by the French Government. Nor, knowing
of it, could it have been under any misapprehension as to the significance
of its terms, which clearly described it as constituting the application of
a system. The same observation applies a fortiori to the Decree of 1889
relating to the delimitation of Romsdal and Nordmore which must have
appeared to the United Kingdom as a reiterated manifestation of the
Norwegian practice.
Norway's attitude with regard to the North Sea Fisheries (Police) Convention
of 1882 is a further fact which must at once have attracted the attention of
Great Britain. There is scarcely any fisheries convention of greater
importance to the coastal States of the North Sea or of greater interest to
Great Britain. Norway's refusal to adhere to this Convention clearly raised
the question of the delimitation of her maritime domain, especially with
regard to bays, the question of their delimitation by means of straight
lines of which Norway challenged the maximum length adopted in the
Convention. Having regard to the fact that a few years before, the
delimitation of Sunnmore by the 1869 Decree had been presented as an
application of the Norwegian system, one cannot avoid the conclusion that,
from that time on, all the elements of the problem of Norwegian coastal
waters had been clearly stated. The steps subsequently taken by Great
Britain to secure Norway's adherence to the Convention clearly show that she
was aware of and interested in the question.
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.
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 constant 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. [p 140]
***
The question now arises whether the Decree of July 12th, 1935, which in its
preamble is expressed to be an application of this method, conforms to it in
its drawing of the base-lines, or whether, at certain points, it departs
from this method to any considerable extent.
The schedule appended to the Decree of July 12th, 1935, indicates the fixed
points between which the straight base-lines are drawn. The Court notes that
these lines were the result of a careful study initiated by the Norwegian
authorities as far back as 1911. The base-lines recommended by the Foreign
Affairs Committee of the Storting for the delimitation of the fisheries zone
and adopted and made public for the first time by the Decree of July 12th,
1935, are the same as those which the so-called Territorial Waters Boundary
Commissions, successively appointed on June 29th, 19-11, and July 12th,
1912, had drawn in 1912 for Finnmark and in 1913 for Nordland and Troms. The
Court further notes that the 1911 and 1912 Commissions advocated these lines
and in so doing constantly referred, as the 1935 Decree itself did, to the
traditional system of delimitation adopted by earlier acts and more
particularly by the Decrees of 1812, 1869 and 1889.
In the absence of convincing evidence to the contrary, the Court cannot
readily find that the lines adopted in these circumstances by the 1935
Decree are not in accordance with the traditional Norwegian system. However,
a purely factual difference arose between the Parties concerning the three
following base-points : No. 21 (Vesterfallet i Gaasan), No. 27 (Tokkebaaen)
and No. 39 (Nordboen). This difference is now devoid of object. A telegram
dated October 19th, 1951, from the Hydrographic Service of Norway to the
Agent of the Norwegian Government, which was communicated to the Agent of
the United Kingdom Government, has confirmed that these three points are
rocks which are not continuously submerged. Since this assertion has not
been further disputed by the United Kingdom Government, it may be considered
that the use of these rocks as base-points is in conformity with the
traditional Norwegian system.
Finally, it has been contended by the United Kingdom Government that
certain, at least, of the base-lines adopted by the Decree are, irrespective
of whether or not they conform to the Norwegian system, contrary to the
principles stated above by the Court as governing any delimitation of the
territorial sea. The Court will consider whether, from the point of view of
these principles, certain of the base-lines which have been criticized in
some detail really are without justification.
The Norwegian Government admits that the base-lines must be drawn in such a
way as to respect the general direction of the [p 141] coast and that they
must be drawn in a reasonable manner. The United Kingdom Government contends
that certain lines do not follow the general direction of the coast, or do
not follow it sufficiently closely, or that they do not respect the natural
connection existing between certain sea areas and the land formations
separating or surrounding them. For these reasons, it is alleged that the
line drawn is contrary to the principles which govern the delimitation of
the maritime domain.
The Court observes that these complaints, which assumed a very general scope
in the written proceedings, have subsequently been reduced.
The United Kingdom Government has directed its criticism more particularly
against two sectors, the delimitation of which they represented as extreme
cases of deviation from the general direction of the coast: the sector of
Sværholthavet (between base-points n and 12) and that of Lopphavet (between
base-points 20 and 21). The Court will deal with the delimitation of these
two sectors from this point of view.
The base-line between points n and 12, which is 38.6 sea miles in length,
delimits the waters of the Sværholt lying between Cape Nordkyn and the North
Cape. The United Kingdom Government denies that the basin so delimited has
the character of a bay. Its argument is founded on a geographical
consideration. In its opinion, the calculation of the basin's penetration
inland must stop at the tip of the Sværholt peninsula (Sværholtklubben). The
penetration inland thus obtained being only n.5 sea miles, as against 38.6
miles of breadth at the entrance, it is alleged that the basin in question
does not have the character of a bay. The Court is unable to share this
view. It considers that the basin in question must be contemplated in the
light of all the geographical factors involved. The fact that a peninsula
juts out and forms two wide fjords, the Lakse-fjord and the Porsangerfjord,
cannot deprive the basin of the character of a bay. It is the distances
between the disputed baseline and the most inland point of these fjords, 50
and 75 sea miles respectively, which must be taken into account in
appreciating the proportion between the penetration inland and the width at
the mouth. The Court concludes that Sværholthavet has the character of a
bay.
The delimitation of the Lopphavet basin has also been criticized by the
United Kingdom. As has been pointed out above, its criticism of the
selection of base point No. 21 may be regarded as abandoned. The Lopphavet
basin constitutes an ill-defined geographic whole. It cannot be regarded as
having the character of a bay. It is made up of an extensive area of water
dotted with large islands which are separated by inlets that terminate in
the various fjords. The base-line has been challenged on the ground that it
does not respect the general direction of the coast. It should be observed
that, however justified the rule in question may be, [p 142] it is devoid of
any mathematical precision. In order properly to apply the rule, regard must
be had for the relation between the deviation complained of and what,
according to the terms of the rule, must be regarded as the general
direction of the coast. Therefore, one cannot confine oneself to examining
one sector of the coast alone, except in a case of manifest abuse; nor can
one rely on the impression that may be gathered from a large scale chart of
this sector alone. In the case in point, the divergence between the
base-line and the land formations is not such that it is a distortion of
the general direction of the Norwegian coast.
Even if it were considered that in the sector under review the deviation was
too pronounced, it must be pointed out that the Norwegian Government has
relied upon an historic title clearly referable to the waters of Lopphavet,
namely, the exclusive privilege to fish and hunt whales granted at the end
of the 17th century to Lt.-Commander Erich Lorch under a number of licences
which show, inter alia, that the water situated in the vicinity of the
sunken rock of Gjesbaaen or Gjesboene and the fishing grounds pertaining
thereto were regarded as falling exclusively within Norwegian sovereignty.
But it may be observed that the fishing grounds here referred to are made up
of two banks, one of which, the Indre Gjesboene, is situated between the
base-line and the limit reserved for fishing, whereas the other, the Ytre
Gjesboene, is situated further to seaward and beyond the fishing limit laid
down in the 1935 Decree.
These ancient concessions tend to confirm the Norwegian Government's
contention that the fisheries zone reserved before 1812 was in fact much
more extensive than the one delimited in 1935. It is suggested that it
included all fishing banks from which land was visible, the range of vision
being, as is recognized by the United Kingdom Government, the principle of
delimitation in force at that time. The Court considers that, although it is
not always clear to what specific areas they apply, the historical data
produced in support of this contention by the Norwegian Govern-ment lend
some weight to the idea of the survival of traditional rights reserved to
the inhabitants of the Kingdom over fishing grounds included in the 1935
delimitation, particularly in the case of Lopphavet. Such rights, founded on
the vital needs of the population and attested by very ancient and peaceful
usage, may legitimately be taken into account in drawing a line which,
moreover, appears to the Court to have been kept within the bounds of what
is moderate and reasonable.
As to the Vestfjord, after the oral argument, its delimitation no longer
presents the importance it had in the early stages of the proceedings. Since
the Court has found that the waters of the Indreleia are internal waters,
the waters of the Vestfjord, as indeed the waters of all other Norwegian
fjords, can only be regarded as internal waters. In these circumstances,
what-[p 143] ever difference may still exist between the views of the
United Kingdom Government and those of the Norwegian Government on this
point, is negligible. It is reduced to the question whether the base-line
should be drawn between points 45 and 46 as fixed by the 1935 Decree, or
whether the line should terminate at the Kalsholmen lighthouse on
Tenholmeme. The Court considers that this question is purely local in
character and of secondary importance, and that its settlement should be
left to the coastal State.
For these reasons,
The Court,
rejecting all submissions to the contrary,
Finds
by ten votes to two,
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; and
by eight votes to four,
that the base-lines fixed by the said Decree in application of this method
are not contrary to international law.
Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this eighteenth day of December, one thousand nine
hundred and fifty-one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
United Kingdom of Great Britain and Northern Ireland and to the Government
of the Kingdom of Norway, respectively.
(Signed) Basdevant,
President.
(Signed) E. Hambro,
Registrar.
[p 144]
Judge Hackworth declares that he concurs in the operative part of the
Judgment but desires to emphasize that he does so for the reason that he
considers that the Norwegian Government has proved the existence of an
historic title to the disputed areas of water.
Judges Alvarez and Hsu Mo, availing themselves of the right conferred on
them by Article 57 of the Statute, append to the Judgment of the Court
statements of their separate opinions.
Judges Sir Arnold McNair and Read, availing themselves of the right
conferred on them by Article 57 of the Statute, append to the Judgment
statements of their dissenting opinions.
(Initialled) J. B.
(Initialled) E. H.
[p 145]
INDIVIDUAL OPINION OF JUDGE ALVAREZ
[ Translation]
I
The United Kingdom has filed with the International Court of Justice an
Application in which it challenges the validity of the Norwegian Decree of
July 12th, 1935, which delimited the Norwe-gian fishery zones off a part of
the Norwegian coast. It considers that the delimitation so effected is
contrary to the precepts of international law and asks the Court to state
the principles of international law applicable for defining the base-lines
by reference to which the Norwegian Government is entitled to delimit its
fisheries zones.
In the course of the oral proceedings, the United Kingdom Government
submitted certain new conclusions, particularly on questions of law, and
asked the Court to adjudicate upon these also.
In her Counter-Memorial and Rejoinder, and in her arguments in Court, Norway
contended that the delimitation of these fisheries zones established in the
1935 Decree was not in conflict with the precepts of international law and
that it corresponded, in any event, to historic rights long possessed by her
and which she indicated.
The present litigation is of great importance, not only to the Parties to
the case, but also to all other States.
At the beginning of his address to the Court, the Attorney-General said: "It
is common ground that this case is not only a very important one to the
United Kingdom and to Norway, but that the decision of the Court on it will
be of the very greatest importance to the world generally as a precedent,
since the Court's decision in this case must contain important
pronouncements concerning the rules of international law relating to coastal
waters. The fact that so many governments have asked for copies of our
Pleadings in this case is evidence that this is the general view."
II
In considering the present case, I propose to follow a method different from
that which is customarily adopted, particularly with regard to the law. It
consists of bringing to light and retaining the principal facts, then of
considering the points of law dominating the whole case and, finally, those
which relate to each important question. [p 146]
The application of this method may, at first sight, appear to be somewhat
academic; but it is essentially practical, since it has as its object the
furnishing of direct answers to be given on the questions submitted to the
Court.
Moreover, this method is called for by reason of the double task which the
Court now has : the resolution of cases submitted to it and the development
of the law of nations.
It is commonly stated that the present Court is a continuation of the former
Court and that consequently it must follow the methods and the jurisprudence
of that Court. This is only partly true, for in the interval which elapsed
between the operations of the Courts, a World War occurred which involved
rapid and profound changes in international life and greatly affected the
law of nations.
These changes have underlined the importance of the Court's second function.
For it now happens with greater frequency than formerly that, on a given
topic, no applicable precepts are to be found, or that those which do exist
present lacunae or appear to be obsolete, that is to say, they no longer
correspond to the new conditions of the life of peoples. In all such cases,
the Court must develop the law of nations, that is to say, it must remedy
its shortcomings, adapt existing principles to these new conditions and,
even if no principles exist, create principles in conformity with such
conditions. The Court has already very successfully undertaken the creation
of law in a case which will remain famous in the annals of international law
(Advisory Opinion of April nth, 1949, on "Reparation for injuries suffered
in the service of the United Nations"). The Court, in this case, can
effectively discharge the same task.
The adaptation of the law of nations to the new conditions of international
life, which is to-day necessary, is something quite different from the
"Restatement" advocated by Anglo-Saxon jurists as a means of ending the
crisis in international law, which consists merely of stating the law as it
has been established and applied up to the present, without being too much
concerned with any changes that it may recently have undergone or which it
may undergo in the future.
III
I shall not dwell on a detailed examination of the facts alleged by the
Parties nor upon the evidence submitted by the Parties in support of their
contentions, because the Judgment of the Court deals with them at length. In
the following pages I shall concentrate only on the questions of law raised
by the present case.
For centuries, because of the vastness of the sea and the limited relations
between States, the use of the sea was subject to no rules; every State
could use it as it pleased. [p 147]
From the end of the 18th century, publicists proclaimed, and the law of
nations recognized as necessary for States, the exercise of sovereign powers
by States over an area of the sea bordering their shores. The extent of this
sea area, which was known as the territorial sea, was first fixed at the
range of the contemporary cannon, and later at 3 sea miles. The question
indeed was one for the domestic law of each country. Several of the
countries of Latin America incorporated provisions relating to this question
in their civil codes.
As the result of the growing importance of the question of the territorial
sea, a World Conference was convened at The Hague in 1930 for the purpose of
providing rules governing certain of its aspects and to deal with two other
matters. This Conference, in which such great hopes had been reposed, did
not establish any precept relating to the territorial sea. It made it clear
that no well-defined rules existed on this subject, that there were merely a
number of conventions between certain States, certain trends and certain
usages and practices.
It was contended at the hearings that a great number of States at this
Conference had accepted the extent of the territorial sea as being fixed at
three sea miles, and had also accepted as established the means of reckoning
this breadth; and this assertion was challenged. It is unnecessary to dwell
long on this point for, in fact, the Conference, as has been said, did not
adopt any provision on the question. Moreover, the conditions of
international life have considerably changed since that time; it is
therefore probable that the States which in 1930 accepted a breadth of three
sea miles would not accept it to-day.
IV
What should be the position adopted by the Court, in these circumstances, to
resolve the present dispute?
The Parties, in their Pleadings and in their Oral Arguments, have advanced a
number of theories, as well as systems, practices and, indeed, rules which
they regarded as constituting international law. The Court thought that it
was necessary to take them into consideration. These arguments, in my
opinion, marked the beginning of a serious distortion of the case.
In accordance with uniformly accepted doctrine, international judicial
tribunals must, in the absence of principles provided by conventions, or of
customary principles on a given question, apply the general principles of
law. This doctrine is expressly confirmed in Article 38 of the Statute of
the Court.
It should be observed in this connection that international arbitration is
now entering a new phase. It is not enough to stress the general principles
of law recognized by civilized nations; regard must also be had, as I have
said, to the modifications which these [p 148] principles may have undergone
as a result of the great changes which have occurred in international life,
and the principles must be adapted to the new conditions of international
life; indeed, if no principles exist " covering a given question, principles
must be created to conform to those conditions.
The taking into consideration of these general principles, and their
adaptation, are all the more necessary in the present case, since the United
Kingdom has asked the Court to declare that the Norwegian Decree of 1935 is
contrary to the principles of international law now in force.
V
What are the principles of international law which the Court must have
recourse to and, if necessary, adapt? And what are the principles which it
must in reality create?
It should, in the first place, be observed that frequent reference is made
to the principles of the law of nations, in conventions and in certain of
the Judgments of the Permanent Court of International Justice, but it is not
said what those principles are nor where they may be found.
Some clarification is therefore necessary on this point.
In the first place, many of the principles, particularly the great
principles, have their origin in the legal conscience of peoples (the
psychological factor). This conscience results from social and international
life; the requirements of this social and international life naturally give
rise to certain norms considered necessary to govern the conduct of States
inter se.
As a result of the present dynamic character of the life of peoples, the
principles of the law of nations are continually being created, and they
undergo more or less rapid modification as a result of the great changes
occurring in that life.
For the principles of law resulting from the juridical conscience of peoples
to have any value, they must have a tangible manifestation, that is to say,
they must be expressed by authorized bodies.
Up to the present, this juridical conscience of peoples has been reflected
in conventions, customs and the opinions of qualified jurists.
But profound changes have occurred in this connection. Conventions continue
to be a very important form for the expression of the juridical conscience
of peoples, but they generally lay down only new principles, as was the case
with the Convention on genocide. On the other hand, customs tend to
disappear as the result of the rapid changes of modern international life ;
and a new case strongly stated may be sufficient to render obsolete an
ancient custom. Customary law, to which such frequent reference is made in
the [p 149] course of the arguments, should therefore be accepted only with
prudence.
The further means by which the juridical conscience of peoples may be
expressed at the present time are the resolutions of diplomatic assemblies,
particularly those of the United Nations and especially the decisions of the
International Court of Justice. Reference must also be made to the recent
legislation of certain countries, the resolutions of the great associations
devoted to the study of the law of nations, the works of the Codification
Commission set up by the United Nations, and finally, the opinions of
qualified jurists.
These are the new elements on which the new international law, still in the
process of formation, will be founded. This law will, consequently, have a
character entirely different from that of traditional or classical
international law, which has prevailed to the present time.
VI
Let us now consider the elements by means of which the general principles
brought to light are to be adapted to the existing conditions of
international life and by means of which new principles are, if necessary,
to be created.
The starting point is the fact that, for the traditional individualistic
regime on which social life has hitherto been founded, there is being
substituted more and more a new regime, a regime of interdependence, and
that, consequently, the law of social interdependence is taking the place
of the old individualistic law.
The characteristics of this law, so far as international law is concerned,
may be stated as follows:
(a) This law governs not merely a community of States, but an organized
international society.
(b) It is not exclusively juridical; it has also aspects which are
political, economic, social, psychological, etc. It follows that the
traditional distinction between legal and political questions, and between
the domain of law and the domain of politics is considerably modified at the
present time.
(c) It is concerned not only with the delimitation of the rights of States
but also with harmonizing them.
(d) It particularly takes into account the general interest.
(e) It also takes into account all possible aspects of every case.
(f) It lays down, besides rights, obligations towards international
society; and sometimes States are entitled to exercise certain rights only
if they have complied with the correlative duties. (Title V of the
"Declaration of the Great Principles of Modern International Law" approved
by three great associations devoted to the study of the law of nations.)
(g) It condemns abus de droit. [p 150]
(h) It adapts itself to the needs of international life and develops side by
side with it.
What are the principles which, in accordance with the foregoing, the Court
must bring to light, adapt if necessary, or even create, with regard to the
maritime domain and, in particular, the territorial sea?
They may be stated as follows:
1. Having regard to the great variety of the geographical and economic
conditions of States, it is not possible to lay down uniform rules,
applicable to all, governing the extent of the territorial sea and the way
in which it is to be reckoned.
2. Each State may therefore determine the extent of its territorial sea and
the way in which it is to be reckoned, provided it does so in a reasonable
manner, that it is capable of exercising supervision over the zone in
question and of carrying out the duties imposed by international law, that
it does not infringe rights acquired by other States, that it does no harm
to general interests and does not constitute an dbus de droit.
In fixing the breadth of its territorial sea, the State must indicate the
reasons, geographic, economic, etc., which provide the justification
therefor.
In the light of this principle, it is no longer necessary to debate
questions of base-lines, straight lines, closing lines of ten sea miles for
bays, etc., as has been done in this case.
Similarly, if a State adopts too great a breadth for its territorial sea,
having regard to its land territory and to the needs of its population, or
if the base-lines which it indicates appear to be arbitrarily selected, that
will constitute an abus de droit.
3. States have certain rights over their territorial sea, particularly
rights to the fisheries ; but they also have certain duties, particularly
those of exercising supervision off their coasts, of facilitating navigation
by the construction of lighthouses, by the dredging of certain areas of sea,
etc.
4. States may alter the extent of the territorial sea which they have fixed,
provided that they furnish adequate grounds to justify the change.
5. States may fix a greater or lesser area beyond their territorial sea over
which they may reserve for themselves certain rights: customs, police
rights, etc.
6. The rights indicated above are of great weight if established by a group
of States, and especially by all the States of a continent.
The countries of Latin America have, individually or collectively, reserved
wide areas of their coastal waters for specific purposes: the maintenance of
neutrality, customs' services, etc., and, lastly, for the exploitation of
the wealth of the continental shelf. [p 151]
7. Any State directly concerned may raise an objection to another State's
decision as to the extent of its territorial sea or of the area beyond it,
if it alleges that the conditions set out above for the determination of
these areas have been violated. Disputes arising out of such objections must
be resolved in accordance with the provisions of the Charter of the United
Nations.
8. Similarly, for the great bays and straits, there can be no uniform rules.
The international status of every great bay and strait must be determined by
the coastal States directly concerned, having regard to the general
interest. The position here must be the same as in the case of the great
international rivers: each case must be subject to its own special rules.
At the Conference held in Barcelona in 1921 on navigable waterways, I
maintained that it was impossible to lay down general and uniform rules for
all international rivers, in view of the great variety of conditions of all
sorts obtaining among them; and this point of view was accepted.
In short, in the case of maritime and river routes, it is not possible to
contemplate the laying down of uniform rules; the rules must accord with the
realities of international life. In place of uniformity of rules it is
necessary to have variety; but the general interest must always be taken
into account.
9. A principle which must receive special consideration is that relating to
prescription. This principle, under the name of historic rights, was
discussed at length in the course of the hearings.
The concept of prescription in international law is quite different from
that which it has in domestic law. As a result of the important part played
by force in the formation of States, there is no pre-scription .with regard
to their territorial status. The political map of Europe underwent numerous
changes in the course of the 19th and 20th centuries; it is to-day very
different from what it was before the Great War, without any application of
the principle of prescription.
Nevertheless, in some instances, prescription plays a part in international
law and it has certain important features. It is recognized, in particular,
in the case of the acquisition and the exercise of certain rights.
In support of the effect of prescription in such cases, two very important
learned works should be mentioned, which adopt the collective opinion of
jurists.
The first of these is the "Declaration of the Great Principles of Modern
International Law" which provides, in Article 20: "No State is entitled to
oppose, in its own interests, the making of rules on a question of general
interest. [p 152]
"When, however, it has exercised special rights for a considerable time,
account must be taken of this in the making of rules."
The other learned work is the "Draft Rules for the Territorial Sea in
Peacetime" adopted by the Institute of International Law at the 1928 Session
in Stockholm. Article 2 of this draft provides:
"The breadth of the territorial sea is 3 sea miles. (It was then thought
that this was sufficient.)
International usage may justify the recognition of a breadth greater or less
than 3 miles."
For prescription to have effect, it is necessary that the rights claimed to
be based thereon should be well established, that they should have been
uninterruptedly enjoyed and that they should comply with the conditions set
out in 2 above.
International law does not lay down any specific duration of time necessary
for prescription to have effect. A comparatively recent usage relating to
the territorial sea may be of greater effect than an ancient usage
insufficiently proved.
10. It is also necessary to pay special attention to another principle which
has been much spoken of: the right of States to do everything which is not
expressly forbidden by international law. This principle, formerly correct,
in the days of absolute sovereignty, is no longer so at the present day: the
sovereignty of States is henceforth limited not only by the rights of other
States but also by other factors previously indicated, which make up what is
called the new international law: the Charter of the United Nations,
resolutions passed by the Assembly of the United Nations, the duties of
States, the general interests of international society and lastly the
prohibition of abus de droit.
11. Any State alleging a principle of international law must prove its
existence; and one claiming that a principle of international law has been
abrogated or has become ineffective and requires to be renewed, must
likewise provide proof of this claim.
12. Agreement between the Parties as to the existence of a principle of law,
or as to its application, for instance, as to the way in which base-lines
determining the extent of the territorial sea are to be selected, etc.,
cannot have any influence upon the decision of the Court on the question.
13. International law takes precedence over municipal law. Acts committed by
a State which violate international law involve the responsibility of that
State.
14. A State is not obliged to protest against a violation of international
law, unless it is aware or ought to be aware of this violation; but only the
State directly concerned is entitled to refer the matter to the appropriate
international body. (Article 39 of [p 153] the "Declaration of the Great
Principles of Modern International Law".)
VII
In accordance with the considerations set out above, I come to the following
conclusions upon the questions submitted to the Court:
(1) Norway�like all other States�is entitled, in accordance with the general
principles of the law of nations now in existence, to determine not only the
breadth of her territorial sea, but also the manner in which it is to be
reckoned.
(2) The Norwegian Decree of 1935, which delimited the Norwegian territorial
sea, is not contrary to any express provisions of international law. Nor is
it contrary to the general principles of international law, because the
delimitation is reasonable, it does not infringe rights acquired by other
States, it does no harm to general interests and does not constitute an abus
de droit.
In enacting the Decree of 1935, Norway had in view simply the needs of the
population of the areas in question.
(3) In view of the foregoing, it is unnecessary to consider whether or not
Norway acquired by prescription a right to lay down a breadth of more than
three sea miles for her territorial sea and the way in which its base-lines
should be selected.
(4) If Norway is entitled to fix the extent of her territorial sea, as has
been said, it is clear that she can prohibit other States from fishing
within the limits of that sea without their being entitled to complain of a
violation of their rights.
(5) The answer to the contentions of the Parties with regard to the
existence of certain precepts of the law of nations which they consider to
be in force at the present time has been given in the preceding pages.
(Signed) A. Alvarez.
[p 154]
SEPARATE OPINION OF JUDGE HSU MO
I agree with the finding of the Court that the method of straight lines used
in the Norwegian Royal Decree of July 12th, 1935, for the delimitation of
the fisheries zone, is not contrary to international law. But I regret that
I am unable to share the view of the Court that all the straight base-lines
fixed by that Decree are in conformity with the principles of international
law.
It is necessary to emphasize the fact that Norway's method of delimiting the
belt of her northern territorial sea by drawing straight lines between point
and point, island and island, constitutes a deviation from what I believe to
be a general rule of international law, namely, that, apart from cases of
bays and islands, the belt of territorial sea should be measured, in
principle, from the line of the coast at low tide. International law
permits, in certain circumstances, deviations from this general rule. Where
the deviations are justifiable, they must be recognized by other States.
Norway is justified in using the method of straight lines because of her
special geographical conditions and her consistent past practice which is
acquiesced in by the international community as a whole. But for such
physical and historical facts, the method employed by Norway in her Decree
of 1935 would have to be considered to be contrary to international law. In
examining, therefore, the ques-tion of the validity or non-validity of the
base-lines actually drawn by Norway, it must be borne in mind that it is not
so much the direct application of the general rule as the degree of
deviation from the general rule that is to be considered. The question in
each case is: how far the line deviates from the configuration of the coast
and whether such deviation, under the system which the Court has correctly
found Norway to have established, should be recognized as being necessary
and reasonable.
The examination of each base-line cannot thus be undertaken in total
disregard of the coast line. In whatever way the belt of territorial sea
may be determined, it always remains true that the territorial sea owes its
existence to land and cannot be completely detached from it. Norway herself
recognizes that the base-lines must be drawn in a reasonable manner and must
conform to the general direction of the coast.
The expression "to conform to the general direction of the coast", being one
of Norway's own adoption and constituting one of the elements of a system
established by herself, should not be given a [p 155] too liberal
interpretation, so liberal that the coast line is almost completely ignored.
It cannot be interpreted to mean that Norway is at liberty to draw straight
lines in any way she pleases provided they do not amount to a deliberate
distortion of the general outline of the coast when viewed as a whole. It
must be interpreted in the light of the local conditions in each sector with
the aid of a relatively large scale chart. If the words "to conform to the
general direction of the coast" have any meaning in law at all, they must
mean that the base-lines, straight as they are, should follow the
configuration of the coast as far as possible and should not unnecessarily
and unreasonably traverse great expanses of water, taking no account of land
or islands situated within them.
Having examined the different sectors of the territorial sea as delimited by
the Decree of 1935, I find two obvious cases in which the base-line cannot
be considered to have been justifiably drawn. I refer to the base-line
between points 11 and 12, which traverses Svserholthavet, and the base-line
between points 20 and 21, which runs across Lopphavet.
In the former case, the base-line, being 39 miles long, encloses a large
area of the sea as Norwegian internal waters. The question to be determined
here is whether the line is to be considered as the closing line of a bay or
whether it is simply a line joining one base-point to another. If it is the
former, it will be necessary to determine whether the area in question
constitutes a bay in inter-national law. In my opinion, the area is a
combination of bays, large and small, eight in all, but not a bay in itself.
It is not a bay in itself simply because it does not have the shape of a
bay. To treat a number of adjacent bays as an entity, thereby completely
ignoring their respective closing lines, would result in the creation of an
artificial and fictitious bay, which does not fulfil the requirements of a
bay, either in the physical or in the legal sense. There is no rule of
international law which permits the creation of such kind of bay.
It has been argued by the Agent of the Norwegian Government that the fact
that the Svserholt peninsula protrudes into the waters in question to form
the two fjords of Laksefjord and Porsanger-fjord cannot deprive these waters
of the character of a bay. But geographically and legally, it is precisely
the existence of this peninsula that makes the two fjords separate and
distinct bays, and it is this fact, coupled with the protrusion of smaller
peninsulas on either side of the two fjords, that gives to this part of the
coast (the section between points 11 and 12), not the character of a bay,
but merely the character of a curvature, a large concavity formed by the
closing lines of several independent bays. Nature having created a number of
bays, neighbouring but distinct from [p 156] one another, the littoral State
cannot., by the exercise of its sovereignty, turn them into one bay by
drawing a long line between two most extreme points.
If the base-line over Sværholthavet is not the closing line of a bay, it
must be just one of the straight lines joining one base-point to another. In
that case, I fail to see how that line can be considered to conform to the
general direction of the coast. In order to follow the general configuration
of the coast, it should take into account at least some of the points which
serve as the starting or terminal points of the closing lines of the bays
now enclosed by the long line in question. To leave out all the points on
land which interpose between the two extreme points Nos. 11 and 12 and to
enclose the whole concavity by drawing one excessively long line is
tantamount to using the straight line method to extend seaward the four-mile
breadth of the territorial sea. The application of the method in this manner
cannot, in my view, be considered as reasonable.
In the case of Lopphavet, the line connecting points 20 and 21, being 44
miles in length, affects an area of water of several hundred square miles.
Norway does not claim this expanse of water to be a bay, and, indeed, by no
stretch of the imagination could it be considered as a bay. Since Lopphavet
is not a bay, there does not exist any legal reason for the base-line to
skip over two important islands, Loppa and Fuglöy, each of which forms a
unit of the "skjaergaard". In ignoring these islands, the base-line makes an
obviously excessive deviation from the general direction of the coast. For
this reason, it cannot be regarded as being justifiable.
The Agent of the Norwegian Government remarked during the oral proceedings
that the basin of Lopphavet led to the Indreleia which should be considered
as Norwegian internal waters. I do not think that the Indreleia has anything
to do with the region in question. For the Indreleia, according to the
charts furnished by the Norwegian Government, goes through the Kaagsund
between the islands of Arnöy and Kaagen and proceeds northward and
northeastward between the islands of Loppa and Loppakalven on the one hand
and the mainland on the other, finally bending into the Soroysund. It does
not at all cut through Lopphavet outside the islands of Arnoy, Loppa and
Söröy. Consequently, it does not overlap any portion of the immense area in
this sector enclosed by the long base-line as Norwegian internal waters.
I have so far examined the question of the validity or otherwise of the two
base-lines, the one affecting Sværholthavet, the other Lopphavet,
exclusively from the aspect of their conformity or non-conformity with the
general direction of the coast. It remains to consider whether Norway may
base her claim in respect of the two regions on historical grounds. In my
opinion, notwithstanding [p 157] all the documents she has produced, she has
not succeeded in establishing any historic title to the waters in question.
In support of her historic title, Norway has relied on habitual fishing by
the local people and prohibition of fishing by foreigners. As far as the
fishing activities of the coastal inhabitants are concerned, I need only
point out that individuals, by undertaking enterprises on their own
initiative, for their own benefit and without any delegation of authority
by their Government, cannot confer sovereignty on the State, and this
despite the passage of time and the absence of molestation by the people of
other countries. As for prohibition by the Norwegian Government of fishing
by foreigners, it is undoubtedly a kind of State action which militates in
favour of Norway's claim of prescription. But the Rescripts on which she has
relied contain one fatal defect: the lack of precision. For they fail to
show any precise and well-defined areas of water, in which prohibition was
intended to apply and was actually enforced. And precision is vital to any
prescriptive claim to areas of water which might otherwise be high seas.
With regard to the licenses for fishing granted on three occasions by the
King of Denmark and Norway to Erich Lorch, Lieutenant-Commander in the
Dano-Norwegian Navy towards the close of the 17th century, I do not think
that this is sufficient to confer historic title on Norway to Lopphavet. In
the first place, the granting by the Danish-Norwegian Sovereign to one of
his own subjects of what was at the time believed to be a special privilege
can hardly be considered as conclusive evidence of the acquisition of
historic title to Lopphavet vis-à-vis all foreign Stares. In the second
place, the concessions were limited to waters near certain rocks and did not
cover the whole area of Lopphavet. Lastly, there is no evidence to show that
the concessions were exploited to the exclusion of participation by all
foreigners for a period sufficiently long to enable the Norwegian Government
to derive prescriptive rights to Lopphavet.
My conclusion is therefore that neither by the test of conformity with the
general direction of the coast, nor on historical grounds, can the two
base-lines drawn across Sværholthavet and Lopphavet, respectively, be
considered as being justifiable under the principles of international law.
(Signed) Hsu Mo.
[p 158]
DISSENTING OPINION OF SIR ARNOLD McNAIR
In this case the Court has to decide whether certain areas of water off the
coast of Norway are high seas or Norwegian waters, either territorial or
internal. If they are high seas, then foreign fishermen are authorized to
fish there. If they are Norwegian waters, then foreign fishermen have no
right to fish there except with the permission of Norway. I have every
sympathy with the small inshore fisherman who feels that his livelihood is
being threatened by more powerfully equipped competitors, especially when
those competitors are foreigners; but the issues raised in this case
con-cern the line dividing Norwegian waters from the high seas, and those
are issues which can only be decided on a basis of law.
***
The preamble and the executive parts of the Decree of 1935 are as follows:
"On the basis of well-established national titles of right ;
by reason of the geographical conditions prevailing on the Norwegian coasts;
in safeguard of the vital interests of the inhabitants of the northernmost
parts of the country;
and in accordance with the Royal Decrees of the 22nd February, 1812, and
16th October, 1809, the 5th January, 1881, and the 9th September, 1889,
are hereby established lines of delimitation towards the high sea of the
Norwegian fisheries zone as regards that part of Norway which is situated
northward of 66� 28,8' North latitude.
These lines of delimitation shall run parallel with straight baselines
drawn between fixed points on the mainland, on islands or rocks, starting
from the final point of the boundary line of the Realm in the easternmost
part of Varangerfjorden and going as far as Traena in the County of
Nordland.
The fixed points between which the base-lines shall be drawn are indicated
in detail in a schedule annexed to this Decree."
[Schedule]
Mr. Arntzen, the Norwegian Agent and Counsel, told the Court (October 5th)
that: [p 159]
"The Decree of 1935 is founded on the following principles: the Norwegian
territorial zone is four sea-miles in breadth. It is measured from straight
lines which conform to the general direction of the coast and are drawn
between the outermost islands, islets and reefs in such a way as never to
lose sight of the land."
Although the Decree of 1935 does not use the expression "territorial sea"
or "waters" or "zone", it cannot be denied that the present dispute relates
to the Norwegian territorial sea. The Judgment of the Court is emphatic on
this point. The same point emerges clearly from the United Kingdom's
Application instituting the proceedings and was insisted upon in the
Norwegian written and oral argument on numerous occasions. Thus, on October
9th, the Norwegian Counsel, Professor Bourquin, said:
"What is the subject of the dispute? It relates to the base-lines �that is
to say, to the lines from which the four miles of the Norwegian territorial
sea are to be reckoned...."
And again, in his oral reply he said on October 25th:
"What [Norway] claims�apart from her historic title�is that the limits
imposed by international law with regard to the delimitation of her
maritime territory have not been infringed by the 1935 Decree and that this
Decree can therefore be set up as against the United Kingdom without any
necessity for any special acquiescence on the part of the United Kingdom."
One thing this dispute clearly is not. It is not a question of the right of
a maritime State to declare the existence of a contiguous zone beyond its
territorial waters, in which zone it proposes to take measures for the
conservation of stocks of fish. An illustration of this is to be found in
President Truman's "Proclamation with respect to Coastal Fisheries in
certain areas of the High Seas, dated September 28th, 1945" (American
Journal of Internatiomal Law, Vol. 40, 1946, Official Documents, p. 46); it
will suffice to quote the following statement:
'' The character as high seas of the areas in which such conservation zones
are established and the right to their free and unimpeded navigation are in
no way thus affected."
That is not this case, for here the question is whether certain disputed
areas of sea water are parts of the high seas or parts of the territorial or
internal waters of the coastal State.
In the course of the proceedings in the case, the United Kingdom has made
certain admissions or concessions which can be summarized as follows:
(a) that for the purposes of this case Norway is entitled to a four-mile
limit;
(b) that the waters of the fjords and sunds (including the Varangerfjord and
Vestfjord) which fall within the conception of a bay, are, subject to a
minor point affecting the status of the [p 160] Vestfjord which I do not
propose to discuss, Norwegian internal waters; and
(c) that (as defined in the Conclusions of the United Kingdom) the waters
lying between the island fringe and the mainland are Norwegian waters,
either territorial or internal.
The Parties are also in conflict upon another minor point, namely, the
status of the waters in certain portions of Indrelcia. about which I do not
propose to say anything.
***
I shall now summarize the relevant part of the law of territorial waters as
I understand it:
(a) To every State whose land territory is at any place washed by the sea,
international law attaches a corresponding portion of maritime territory
consisting of what the law calls territorial waters (and in some cases
national waters in addition). International law does not say to a State:
"You are entitled to claim territorial waters if you want them." No maritime
State can refuse them. Inter-national law imposes upon a maritime State
certain obligations and confers upon it certain rights arising out of the
sovereignty which it exercises over its maritime territory. The possession
of this territory is not optional, not dependent upon the will of the State,
but compulsory.
(b) While the actual delimitation of the frontiers of territorial waters
lies within the competence of each State because each State knows its own
coast best, yet the principles followed in carry- ing out this delimitation
are within the domain of law and not within the discretion of each State. As
the Supreme Court of the United States said in 1946 in the United States v.
State of California, 332 U.S. 19, 35:
'' The three-mile rule is but a recognition of the necessity that a
government next to the sea must be able to protect itself from dangers
incident to its location. It must have powers of dominion and regulation in
the interest of its revenues, its health, and the security of its people
from wars waged on or too near its coasts. And in so far as the nation
asserts its rights under international law, whatever of value may be
discovered in the seas next to its shores and within its protective belt,
will most naturally be appropriated for its use. But whatever any nation
does in the open sea, which detracts from its common usefulness to nations,
or which another nation may charge detracts from it, is a question for
consideration among nations as such, and not their separate governmental
units." (Cited and re-affirmed in 1950 in United States v. State of Texas,
339 U.S. 707, 718.) [p 161]
(c) The method of delimiting territorial waters is an objective one and,
while the coastal State is free to make minor adjustments in its maritime
frontier when required in the interests of clarity and its practical object,
it is not authorized by the law to manipulate its maritime frontier in
order to give effect to its economic and other social interests. There is an
overwhelming consensus of opinion amongst maritime States to the effect that
the base-line of territorial waters, whatever their extent may be, is a line
which follows the coast-line along low-water mark and not a series of
imaginary lines drawn by the coastal State for the purpose of giving effect,
even within reasonable limits, to its economic and other social interests
and to other subjective factors.
In 1894 Bonfils (Droit international public, � 491) described la mer
juridictionnelle ou littorale, as:
"la bande de l'océan qui entoure et enceint les côtes du territoire
continental ou insulaire et sur laquelle l'État peut, du rivage que baignent
les eaux de cette mer, faire respecter sa puissance".
(d) The calculation of the extent of territorial waters from the land is the
normal and natural thing to do; its calculation from a line drawn on the
water is abnormal and requires justification, for instance, by showing that
the line drawn on the water is drawn from the terminal line of internal
waters in a closed bay or an historic bay or a river mouth, which will be
dealt with later. One must not lose sight of the practical operation of the
limit of territorial waters. It is true that they exist for the benefit of
the coastal State and not for that of the foreign mariner approaching them.
Nevertheless, if he is to respect them, it is important that their limit
should be drawn in such a way that, once he knows how many miles the coastal
State claims, he should�whether he is a fisherman or the commander of a
belligerent vessel in time of war� be able to keep out of them by following
ordinary maritime practice in taking cross-bearings from points on the
coast, whenever it is visible, or in some other way. This practical aspect
of the matter is confirmed by the practice of Prize Courts in seeking to
ascertain whether a prize has been captured within neutral territorial
waters or on the high seas; see, for instance, The Anne (1818) Prize Cases
in the United States Supreme Court, page 1012; The Heina (1915), Fauchille,
Jurisprudence française en matière de prises, I, page 119; II, page 409, a
Norwegian ship captured by a French cruiser in 1914 at a point four miles
and five-sixths from an island forming part of the Danish Antilles ; and by
decisions upon illegal fishing within territorial waters, e.g. Ship May v.
The King, Canada Law Reports, Supreme Court, 1931, page 374, or upon other
illegal entry into territorial waters, The Ship "Queen City" v. The King,
ibid., page 387. [p 162]
(e) Reference should also be made to the statement in the Report on
Territorial Waters approved by the League Codification Committee in 1927
for transmission to governments for their comments, particularly page 37 of
League document C.196.M.70.1927.V., where, after referring to what it calls
the seaward limit of the territorial sea, the Report continues:
"Mention should also be made of the line which limits the rights of dominion
of the riparian State on the landward side. This question is much simpler.
The general practice of the States, all projects of codification and the
prevailing doctrine agree in considering that this line should be low-water
mark along the whole of the coast."
(f) In 1928 and 1929 replies were sent by a number of governments to the
questions put to them by the Committee of Five which made the final
preparations for the Hague Codification Conference of 1930 (League of
Nations, C.74.M.39.1929.V., pp. 35 et sqq.).
As I understand these replies�the language is not always absolutely
plain�seventeen governments declared themselves in favour of the view that
the base-line of territorial waters is a line which follows the coast-line
along low-water mark and against the view that the base-line consists of a
series of lines connecting the outermost points of the mainland and islands.
The following Governments took the latter view: Norway, Sweden, Poland,
Soviet Russia and, probably, Latvia. (In this respect my analysis
corresponds closely to that of paragraph 298 of the Counter-Memorial.)
It may be added that Poland had recovered sovereignty over her maritime
territory only eleven years before, after an interval of more than a
century, and that Latvia became a State only in 1918. All the States parties
to the North Sea Fisheries Convention of 1882, Belgium, Denmark, France,
Germany, Great Britain and the Netherlands, as I understand their replies,
accepted the rule of low-water mark following the line of the coast; so also
did the United States of America. Governments are not prone to understate
their claims.
(g) It is also instructive to notice the Danish reply because Denmark was,
with Norway, the joint author of the Royal Decree of 1812, on which the
Norwegian Decree of 1935 purports to be based, and Denmark told the League
of Nations Committee that the Decree of 1812 was still in force in Denmark.
The Danish reply states that:
"Paragraph 2 of Article 3 of the regulations introduced by Royal Decree of
January 19th, 1927, concerning the admission of war-[p163]vessels belonging
to foreign Powers to Danish ports and territorial waters in time of peace,
contains the following clause:
'Danish internal waters comprise, in addition to the ports, entrances of
ports, roadsteads, bays and firths, the waters situated between, and on the
shoreward side of, islands, islets and reefs, which are not permanently
submerged.'
(Quotation from Decree of 1927 ends.)
'' Along the coast the low-water mark is taken as a base in determining the
breadth of the territorial waters. The distance between the coast and the
islands is not taken into account, so long as it is less than double the
width of the territorial zone."
(h) But although this rule of the limit following the coast line along
low-water mark applies both to straight coasts and to curved and indented
coasts, an exception exists in the case of those inden-tations which possess
such a configuration, both as to their depth and as to the width between
their headlands, as to constitute landlocked waters, by whatever name they
may be called. It is usual and convenient to call them "bays", but what
really matters is not their label but their shape.
A recent recognition of the legal conception of bays is to be found in the
reply of the United States of America given in 1949 or 1950 to the
International Law Commission, published by the United Nations in Document
A/CN.4/19, page 104, of 23rd March, 1950:
"The United States has from the outset taken the position that its
territorial waters extend one marine league, or three geographical miles
(nearly 3J English miles) from the shore, with the exception of waters or
bays that are so landlocked as to be unquestionably within the jurisdiction
of the adjacent State."
(Then follow a large number of references illustrating this statement.)
There are two kinds of bay in which the maritime belt is measured from a
closing line drawn across it between its headlands, that is to say, at the
point where it ceases to have the configuration of a bay. The first category
consists of bays whose headlands are so close that they can really be
described as landlocked. According to the strict letter and logic of the
law, a closing line should connect headlands whenever the distance between
them is no more than double the agreed or admitted width of territorial
waters, whatever that may be in the particular case. In practice, a somewhat
longer distance "between headlands has often been recognized as justifying
the closing of a bay. There are a number of treaties that have adopted ten
miles, in particular the Anglo-French Convention of 1839, and the North Sea
Fisheries Convention of 1882, which was signed and ratified by Germany,
Belgium, Denmark, France, Great Britain and the Netherlands. It cannot yet
be said that a [p 164] closing line of ten miles forms part of a rule of
customary law, though probably no reasonable objection could be taken to
that figure. At any rate Norway is not bound by such a rule. But the fact
that there is no agreement upon the figure does not mean that no rule at all
exists as to the closing line of curvatures possessing the character of a
bay, and that a State can do what it likes with its bays; for the primary
rule governing territorial waters is that they form a belt or bande de mer
following the line of the coast throughout its extent, and if any State
alleges that this belt ought not to come inside a particular bay and follow
its configuration, then it is the duty of that State to show why that bay
forms an exception to this general rule.
The other category of bay whose headlands may be joined for the purpose of
fencing off the waters on the landward side as internal waters is the
historic bay, and to constitute an historic bay it does not suffice merely
to claim a bay as such, though such claims are not uncommon. Evidence is
required of a long and consistent assertion of dominion over the bay and of
the right to exclude foreign vessels except on permission. The matter was
considered by the British Privy Council in the case of Conception Bay in
Newfoundland in Direct United States Cable Company v. Anglo-American
Telegraph Company (1877) 2 Appeal Cases 394. The evidence relied upon in
that case as justifying the claim of an historic bay is worth noting. There
was a Convention of 1818 between the United States of America and Great
Britain which excluded American fishermen from Conception Bay, followed by
a British Act of Parliament of 1819, imposing penalties upon "any person"
who refused to depart from the bay when required by the British Governor.
The Privy Council said:
"It is true that the Convention would only bind the two nations who were
parties to it, and consequently that, though a strong assertion of ownership
on the part of Great Britain, acquiesced in by so powerful a State as the
United States, the Convention, though weighty, is not decisive. But the Act
already referred to .... goes further".... "No stronger assertion of
exclusive dominion over these bays could well be framed." [This Act] "is an
unequivocal assertion of the British legislature of exclusive dominion over
this bay as part of the British territory. And as this assertion of dominion
has not 'been questioned by any nation from 1819 down to 1872, when a fresh
Convention was made, this would be very strong in the tribunals of any
nation to show that this bay is by prescription part of the exclusive
territory of Great Britain...."
[p165 ]
Claims to fence off and appropriate areas of the high seas by joining up
headlands have been made from time to time, but usually in the case of
particular pieces of water and not on the thoroughgoing scale of the Decree
of 1935. There is a considerable body of legal authority condemning this
practice. This theory�to the effect that the coastal State is at liberty to
draw a line connecting headlands on its coast and to claim the waters on
the landward side of that line as its own waters�has sometimes been referred
to as the "headland theory" or "la théorie" or "la doctrine des caps".
There are two decisions by an umpire called Bates in arbitrations between
the United States of America and the United Kingdom in 1853 or 1854 (Moore's
International Arbitrations, Vol. 4, pp. 4342-5): the Washington, seized
while fishing within a line connecting the headlands of the Bay of Fundy,
which is 65 to 75 miles wide and 130 to 140 miles long and "has several bays
on its coasts", and the Argus, seized while fishing 28 miles from the
nearest land and within a line connecting two headlands on the north-east
side of the island of Cape Breton; I do not know the distance between them.
In both cases, the seizures were condemned and compensation was awarded to
the owners of the vessels. In the Washington the umpire said:
� It was urged on behalf of the British Government that by coasts, bays,
etc., is understood an imaginary line, drawn along the coast from headland
to headland, and that the jurisdiction of Her Majesty extends three marine
miles outside of this line; thus closing all the bays on the coast or shore,
and that great body of water called the Bay of Fundy against Americans and
others, making the latter a British bay. This doctrine of headlands is new,
and has received a proper limit in the Convention between France and Great
Britain of August 2nd, 1839, in which 'it is agreed that the distance of
three miles fixed as the limit for the exclusive right of fishery upon the
coasts of the two countries shall, with respect to bays the mouths of which
do not exceed ten miles in width, be measured from a straight line drawn
from headland to headland'."
Then, in 1881, Mr. Evarts, American Secretary of State, sent a despatch to
the American representative in Spain which contained the following passage
(Moore's Digest of International Law, i, p. 719):
�Whether the line which bounds seaward the three-mile zone follows the
indentations of the coast or extends from headland to headland is the
question next to be discussed.
The headland theory, as it is called, has been uniformly rejected by our
Government, as will be seen from the opinions of the Secretaries above
referred to. The following additional authorities may be cited on this
point:
������������������������������������
In the opinion of the umpire of the London Commission of 1853 I think he
refers to the Washington or the Argus], it was held [p 166] that: ' It can
not be asserted as a general rule, that nations have an exclusive right of
fishery over all adjacent waters to a distance of three marine miles beyond
an imaginary line drawn from headland to headland.' "
He concluded:
"We may therefore regard it as settled that, so far as concerns the eastern
coast of North America, the position of this Department has uniformly been
that the sovereignty of the shore does not, so far as territorial authority
is concerned, extend beyond three miles from low-water mark, and that the
seaward boundary of this zone of territorial waters follows the coast of the
mainland, extending where there are islands so as to place round such
islands the same belt. This necessarily excludes the position that the
seaward boundary is to be drawn from headland to headland, and makes it
follow closely, at a distance of three miles, the boundary of the shore of
the continent or of adjacent islands belonging to the conti-nental
sovereign."
And "la théorie des caps" is condemned by Fauchille, Droit international
public, para. 493 (6), in the words: "Elle ne saurait juridiquement
prévaloir: elle est une atteinte manifeste à la liberté des mers."
***
I shall now examine the Decree of 1935 and direct attention to the results
produced by the "straight base-lines" which it lays down. It is difficult
without the visual aid of large-scale charts to convey a correct picture of
the base-lines and the outer lines of delimitation established by the Decree
of 1935. The area affected begins at Traena on the north-west coast not far
from the entrance to Vestfjord and runs round North Cape down to the
frontier with Russia near Grense-Jacobselv, the total length of the outer
line being about 560 sea miles without counting fjords and other
inden-tations. There are 48 fixed points�often arbitrarily selected� between
which the base-lines are drawn. Twelve of these base-points are located on
the mainland or islands, 36 of them on rocks or reefs. Some of the rocks are
drying rocks and some permanently above water. The length of the base-lines
and the corresponding outer lines varies greatly. At some places, where
there are two or more rocks at a turning point, the length of the base-lines
may be only a few cables. At other places the length is very great, for
instance,
between 5 and 6���.25 miles
7 � 8���.19 �
8 � 9���.25 �
11 ,, 12���.39 �
12 � 13���.19 �
18 � 19���.26½ � [p 167]
19 and 20���.19,6 miles
20 ,, 21���.44 �
21 � 22���.18 �
25 � 26���.19½ �
27 � 28���.18 �
I have omitted the base-lines connecting base-points 1 and 2 and base-points
45 and 46, which are respectively 30 and 40 miles, because they are the
closing lines of Varangerfjord and Vestfjord, and these fjords, like the
others, have been conceded by the United Kingdom to be Norwegian waters,
subject to a minor controversy as to the precise position of the closing
line of the latter. I have also omitted mention of all base-lines less than
18 miles.
The base-line connecting base-points 20 and 21 (44 miles) rests for a brief
moment upon Vesterfall in Gasan (21), a drying rock eight miles from the
nearest island, and then continues, with an almost imperceptible bend, in
the same direction for a further 18 miles to base-point 22, a drying rock ;
thus between base-points 20 and 22 we get an almost completely straight line
of 62 miles. Again, the base-line which connects base-points 18 and 20, both
above-water rocks, runs absolutely straight for 46.1 miles.
In order to illustrate the distance between many parts on the outer lines
and the land, I shall take two sectors which I find particularly difficult
to reconcile with the ordinary conception of the maritime belt�namely, that
comprised by base-points 11 and 12 (39 miles apart), an area sometimes
called Sværholthavet, and that comprised by base-points 20 and 21 (44 miles
apart), an area sometimes called Lopphavet. In each case I propose to
proceed along the outer line and take, at intervals of 4 miles, measurements
in miles from the outer line to the nearest land on the mainland or on an
island:
Sværholthavet: Measurements to mainland or islands from the outer line, at
intervals of 4 miles proceeding from base-point 11 to base-point 12 are as
follows: 4 miles at base-point 11, then 5⅓, 8⅓, 11, 13, 12 (or 11 from a
lighthouse), 11 (or 9 from a lighthouse), 8, 6, and nearly 5;
Lopphavet: Measurements to mainland or islands from the outer line, at
intervals of 4 miles proceeding from 20 to 21, are as follows: 4 miles at
base-point 20, then 6, 8½, 12, 16, 16, 18, 17, 14½, I2½ (or 8 from
base-point 21, a drying rock), 12 (or 5 from base-point 21).
Moreover, each of these two areas�Sværholthavet and Lopphavet�in no sense
presents the configuration of a bay and comprises a large number of named
and unnamed fjords and sunds [p 168] which have been admitted by the United
Kingdom to be Norwegian internal waters within their proper closing lines.
In one part of Lopphavet the outer line is distant more than 20 miles from
the closing line of a fjord. In the opinion of the Court (see p. 141)
Lopphavet "cannot be regarded as having the character of a bay"; and I may
refer to an additional circumstance which militates against the opinion that
the whole of this large area is Norwegian waters : that is, that according
to the (British Admiralty) Norway Pilot, Part III, page 607, the approach to
the port of Hammerfest through Sdroysundet, which runs out of Lopphavet
towards Hammerfest, "is the shortest and, on the whole, the best entrance
to Hammerfest from westward, especially in bad weather"; see The Alleganean
(Moore, International Arbitrations, iv, pp. 4332-4341, "that it can not
become the pathway from one nation to another"� as one of the conditions for
holding Chesapeake Bay to be a closed historic bay). Another questionable
area is that comprised by the lines connecting base-points 24 and 26,
totalling 36 miles.
These three illustrations are among the extreme cases. A more normal
base-line is that which connects base-points 5 (a point on the island of
Reinoy) and 6 (Korsneset, a headland on the main-land); this base-line�25
miles in length�runs in front of Persfjord, Syltefjord and Makkaufjord, all
of which have been admitted by the United Kingdom to be Norwegian internal
waters, but the line pays no attention to their closing lines; at no place,
however, is the distance between the outer line and the land or closing line
of a fjord more than about six miles.
I draw particular attention to the fact that many, if not most, of the
base-lines of the Decree of 1935 fence off many areas of water which contain
fjords or bays, and pay little, if any, attention to their closing lines; in
the case of the Washington, referred to above, the umpire, in rejecting the
claim to treat the Bay of Fundy as a closed bay, twice drew attention to the
fact that it comprised other bays within itself: "it has several bays on its
coasts", and again he refers to "the imaginary line .... thus closing all
the bays on the shore".
The result of the lines drawn by the Decree is to produce a collection of
areas of water, of different shapes and sizes and different lengths and
widths, which are far from forming a belt or bande of territorial waters as
commonly understood. I find it difficult to reconcile such a pattern of
territorial waters with the almost universal practice of defining
territorial waters in terms of miles�be they three or four or some other
number. Why speak of three miles or four miles if a State is at liberty to
draw lines which produce a maritime belt that is three or four miles wide at
the base-points and hardly anywhere else? Why speak of measuring territorial
waters from low-water mark when that occurs at 48 [p 169] base-points and
hardly anywhere else? It is said that this pattern is the inevitable
consequence of the configuration of the Norwegian coast, but I shall show
later that this is not so.
***
Norway has sought to justify the Decree of 1935 on a variety of grounds, of
which the principal are the following (A, B, C and D):
(A) That a State has a right to delimit its territorial waters in the manner
required to protect its economic and other social interests. This is a
novelty to me. It reveals one of the fundamental issues which divide the
Parties, namely, the difference between the subjective and the objective
views of the delimitation of territorial waters.
In my opinion the manipulation of the limits of territorial waters for the
purpose of protecting economic and other social interests has no
justification in law; moreover, the approbation of such a practice would
have a dangerous tendency in that it would encourage States to adopt a
subjective appreciation of their rights instead of conforming to a common
international standard.
***
(B) That the pattern of territorial waters resulting from the Decree of 1935
is required by the exceptional character of the Norwegian coast.
Much has been said and written in presenting the Norwegian case for the
delimitation made by the Decree of 1935 of the special character of the
Norwegian coast, the poverty and barrenness of the land in northern Norway
and the vital importance of fishing to the population, and so forth, and of
the skerries and "skjærgaard", which runs round the south, west and north
coasts and ends at North Cape (Norwegian oral argument, nth October). This
plea must be considered in some detail from the point of view both of fact
and of law. Norway has no monopoly of indentations or even of skerries. A
glance at an atlas will shew that, although Norway has a very long and
heavily indented coast-line, there are many countries in the world
possessing areas of heavily indented coast-line. It is not necessary to go
beyond the British Commonwealth. The coast of Canada is heavily indented in
almost every part. Nearly the whole of the west coast of Scotland and much
of the west coast of Northern Ireland is heavily indented and bears much
resemblance to the Norwegian coast.
Skerry is a word of Norwegian origin which abounds in Scotland, both as
"skerry" and as "sgeir" (the Gaelic form). The New Oxford [p 170] Dictionary
and any atlas of Scotland afford many illustrations. From this dictionary I
extract two quotations: Scoresby, Journal of Whale Fishery (1823), page 373:
"The islands, or skerries, which .... skirt the forbidding coast on the
western side of the Hebrides"; W. McIlwraith, Guide to Wigtownshire (1875)
(in the south-west of Scotland), page 62: "The rocks stretch seaward in
rugged ledges and skerries." The following passage occurs in the
Encyclopœdia Britannica (1947), Volume 20, sub-title "Scotland", page 141:
"The Western Highland coast is intersected throughout by long narrow
sea-lochs or fiords. The mainland slopes steeply into the sea and is fronted
by chains and groups of islands.... The Scottish sea-lochs must be
considered in connection with those of western Ireland and Norway. The whole
of this north-western coast line of Europe bears witness to recent
submergence."
As was demonstrated to the Court by means of charts, in response to a
suggestion contained in paragraph 527 of the Counter-Memorial, the
north-west coast of Scotland is not only heavily indented but it possesses,
in addition, a modest "island fringe", the Outer Hebrides, extending from
the Butt of Lewis in a south-westerly direction to Barra Head for a distance
of nearly one hundred miles, the southern tip being about thirty-five miles
from the Skerryvore lighthouse. At present the British line of territorial
waters round this island fringe, inside and outside of it, follows the line
of the coast and the islands throughout without difficulty and does not,
except for the closing lines of lochs not exceeding ten miles, involve
straight base-lines joining the outermost points of the islands. This is
also true of the heavily indented and mountainous mainland of the
north-west coast of Scotland lying inside of and opposite to the Outer
Hebrides.
A further factor that must be borne in mind, in assessing the relevance of
the special character of the Norwegian coast, is that not very much of that
special character remains after the admissions (referred to above) made by
the United Kingdom during the course of the oral proceedings. The main
peculiarity that remains is the jagged outer edge of the island fringe or
"skjaergaard". In estimating the effect of the "skjærgaard" as a special
factor, it must also be remembered that, running north-west, it ends at
North Cape, which is near base-point 12.
Another special aspect of the Norwegian coast which has been stressed in the
Norwegian argument, and is mentioned in the Judgment of the Court, is its
mountainous character; for instance, Professor Bourquin said on October 5th:
"The shore involved in the dispute is an abrupt coast towering high above
the level of the sea; that fact is of great importance to our case. It is
therefore a coast which can be seen from a long way off. A mariner
approaching from the sea catches sight of a mountainous coast, like this of
Norway, very soon. From this point [p 171] of view a coast like this of
Norway cannot be compared with a flat coast such as that, for example, of
the Netherlands."
The Norwegian argument also repeatedly insists that the baselines of the
Decree of 1935 have been so drawn that the land is visible from every point
on the outer line. I am unable to see the relevance of this point because I
am aware of no principle or rule of law which allows a wider belt of
territorial waters to a country possessing a mountainous coast, such as
Norway, than it does to one possessing a flat coast, such as the
Netherlands.
In brief, for the following reasons, I am unable to reconcile the Decree of
1935 with the conception of territorial waters as recognized by
international law�
(a) because the delimitation of territorial waters by the Decree of 1935 is
inspired, amongst other factors, by the policy of protecting the economic
and other social interests of the coastal State;
(b) because, except at the precise 48 base-points, the limit of four miles
is measured not from land but from imaginary lines drawn in the sea, which
pay little, if any, attention to the closing lines of lawfully enclosed
indentations such as fjords, except Varangerfjord and Vestfjord;
(c) because the Decree of 1935, so far from attempting to delimit the belt
or bande of maritime territory attributed by international law to every
coastal State, comprises within its limits areas of constantly varying
distances from the outer line to the land and bearing little resemblance to
a belt or bande;
(d) because the Decree of 1935 ignores the practical need experienced from
time to time of ascertaining, in the manner customary amongst mariners,
whether a foreign ship is or is not within the limit of territorial waters.
***
(C) That the United Kingdom is precluded from objecting to the Norwegian
system embodied in the Decree of 1935 by previous acquiescence in the
system.
Supposing that so peculiar a system could, in any part of the world and at
any period of time, be recognized as a lawful system of the delimitation of
territorial waters, the question would arise whether the United Kingdom had
precluded herself from objecting to it by acquiescing in it. An answer to
that question involves two questions:
When did the dispute arise?
When, if at all, did the United Kingdom Government become aware of this
system, or when ought it to have become aware but [p 172] for its own
neglect; in English legal terminology, when did it receive actual or
constructive notice of the system?
When did the dispute arise? Three dates require consideration: 1906, 1908
and 1911. I do not think it greatly matters which we take. As for 1906,
Chapter IV of the Counter-Memorial is entitled "History of the Dispute since
1906". The Storting Document No. 17/1927 (to be described later) says (p.
122) that "in 1905 English trawlers began to fish in the waters along
northern Norway and Russia", and the Counter-Memorial, paragraph 91, states
that "British trawlers made their first appearance off the coast of Eastern
Finnmark towards 1906". Some apprehension occurred among the local
population. A Law of June 2, 1906, prohibiting foreigners from fishing in
Norwegian territorial waters, was passed, and "since 1907, fishery
protection vessels have been stationed every year in the waters of Northern
Norway" (ibidem, paragraph 93).
As for 1908, Norwegian Counsel told the Court (October 25) that "as early as
1908 Norway organized its fishery patrol service on the basis of the very
lines which were subsequently fixed in the 1935 Decree". It is strange that
these lines were not communicated to the United Kingdom in 1908. According
to Annex 56 of the Counter-Memorial, a Report made by the General Chief of
Staff of the Norwegian Navy,
"The instructions given to the naval fishery protection vessels as early as
1906 specified two forms of action to be taken in regard to trawlers:
warning and arrest.
The first warning, after the trawlers had begun to visit our Arctic waters,
was given in the summer of 1908 to the British trawler Golden Sceptre."
As for 1911, on March nth of that year, when the British trawler Lord
Roberts was arrested in Varangerfjord and the master was fined for breach of
the Law of 2nd June, 1906, Notes were exchanged between the British and
Norwegian Governments and the Norwegian Foreign Minister had an interview
with Sir Edward Grey, the British Foreign Minister, in London. At that
interview, the Norwegian Minister, M. Irgens, "insisted on the desirability
of England not at that moment lodging a written protest" (ibidem, paragraph
98 a), but on the nth July, 1911, the British Government sent a protest to
Norway (Counter-Memorial, Annex 35, No. 1), in which they maintained that
they had "never recognized the Varanger and the Vest fjords to be
territorial waters, nor have they participated in any international
agreement for the purpose of conferring the right of jurisdiction beyond the
three-mile limit off any part [p 173] of the Norwegian coasts". On October
13th, 1951, Mr. Arntzen said in the course of his oral argument:
'' The Norwegian Government is happy to see the dispute which has lasted so
long submitted for the decision of the International Court of Justice. I
think it may be relevant to recall that M. Irgens, the Norwegian Foreign
Minister, at the time of his discussions [that is, in 1911] with Sir Edward
Grey concerning the Lord Roberts incident in 1911, was already speaking of
the possibility of arbitration as a solution to the dispute."
In later years many other trawlers were arrested, and the dispute widened,
but it was not until during the course of these proceedings that the United
Kingdom admitted that the waters of Varanger-fjord within the line claimed
by Norway were Norwegian waters.
Between the arrest of the Lord Roberts in 1911 and May 5th, 1949,
sixty-three British and other fishing vessels were arrested for fishing in
alleged Norwegian waters, and many others were warned (see Counter-Memorial,
Annex 56).
I must now examine the Decrees on which the Decree of 1935 purports to be
based and some of which have been mentioned as evidence that the United
Kingdom had acquired or ought to have acquired notice of the Norwegian
system before the dispute began.
(i) The Royal Decree of February 22nd, 1812. The Storting Document No.
17/1927 tells us (pp. 506, 507) that after discussion between the Admiralty
and Foreign Office of the Kingdom of Denmark-Norway, it was decided to
request the King for a royal resolution and the Chancellery defined the
matter to be
"whether the territorial sovereignty, or the point from which the sovereign
right of protection is fixed, shall be measured from the mainland or from
the extremest skerries".
Thereupon the King of Denmark and of Norway made the Decree, of which a
translation will be found on page 134 of the Judgment of the Court. The
Decree makes no mention of straight lines between islands or islets, or of
connecting headlands of the mainland by any lines at all.
This is the first of the Decrees mentioned in the preamble as the basis of
the Decree of 1935, and it has been treated by the Norwegian Agent and
Counsel as the basis and the starting-point of a series of Decrees made in
the 19th century and of the Decree [p 174] of 1935�a kind of Magna Carta.
The Judgment of the Court attributes "cardinal importance" to it. It
therefore deserves close examination. For this purpose, I must refer again
to Storting Document No. 17 1927, which is a Report made by one section of
the "Enlarged Committee on Foreign Affairs and Constitution of the Norwegian
Storting" in April 1927, later translated into English and then printed and
published by Sijthoff in Leyden in 1937, under the title of The Extent of
Jurisdiction in Coastal Waters, by Christopher B. V. Meyer, Captain, Royal
Norwegian Navy.
On pages 492 ff., this document passes under review a large number of 17th
and 18th-century Decrees and Proclamations, amongst others that of June 9,
1691 (Annex 6, I, to the Counter-Memorial), and another of June 13, 1691
(Annex 6, II) which, it will be noticed, refers to the area between the Naze
in Norway and the Jutland Reef. It then refers to the Decree of 1812 and
tells us that it was "not in reality intended to be more than a regulation
for the actual purpose : prize cases on the southern coasts". Further, on
page 507, we are told that the Royal Resolution "was communicated .... to
all the Governors in Denmark and Norway whose jurisdictions border the sea,
all the prize courts in Denmark and Norway and the Royal Supreme Admiralty
Court". It was communicated "for information" with the additional order:
"yet nothing of this must be published in printing".
Page 507 contains the following footnote:
"( ) N.R.A. Chanc., drafts. As far as is known, the resolution was printed
for the first time in 1830 in Historisk underretning om landvaernet by J.
Chr. Berg. Dr. Ræstad states that up to that time it was little known and
apparently no appeal was made to it previously, either in Denmark or in
Norway. �
Then follow several quotations from Dr. Raestad's Kongens Stromme,
commenting on the expression "in all cases", which should be noted because
his interpretation of "in all cases" differs from that about to be quoted
from this document, and because Dr. Rasstad stated that, though the Decree
of 1812 "was intended for neutrality questions", "the one-league limit at
that time was the actual limit�at any rate the actual minimum limit�also for
other purposes than for neutrality". We are then told (p. 509) that
"in the light of the most recent investigations it seems quite clear that
the term 'in all cases' only means 'in all prize cases'. The Resolution of
22nd February, 1812, only completed the foregoing neutrality rescripts by
deciding the question which was left open in 1759: whether the league should
be measured from terra firma or from the appurtenant skerries, etc. The
one-league limit of 1812 had, therefore, no greater scope than the
one-league limit [p 175] mentioned in the previous Royal Resolutions of the
18th century, that is to say, it applied only to neutrality questions, and
was laid down only for the guidance of national authorities, not of foreign
Powers."
The relevance of these passages is that they shew:
(a) that the Decree of 1812 was little known for some 18 years;
(b) that it was intended for administrative purposes and not for the
guidance of foreign States ;
(c) that, in the opinion of some people, it only applied to prize cases and
even then, according to this document, only to prize cases on the southern
coasts. On page 510 the Report speaks of "the prize case rule of 22nd
February, 1812".
It is clear that between 1869 and 1935 "the prize case rule of 22nd
February, 1812" was acquiring a wider connotation, as we shall now see.
It does not matter whether the views expressed in the Storting Document No.
17/1927 as to the meaning of the Royal Decree of 1812 are right or wrong.
What is important from the point of view of the alleged notoriety of the
Norwegian system is that such views as to the true import of the Decree of
1812 and its connection with the Norwegian system could be held by
responsible persons in Norway as late as the year 1927.
(ii) The Les Quatre Frères incident of 1868. This French fishing boat was
turned out of the Vestfjord by the Norwegian authorities. The French
Government protested on the ground that the Vestfjord was not part of
Norwegian territorial waters and "serves as a passage for navigation towards
the North". Correspondence between the two Governments ensued, and the
Minister of Foreign Affairs of Norway and Sweden on November 7th, 1868,
claimed Vestfjord "as an interior sea", which appears to have closed the
incident.
(iii) A Royal Decree of October 16th, 186g, provided
"That a straight line drawn at a distance of 1 geographical league parallel
to a straight line running from the islet of Storhofinen to the island of
Svinôy shall be considered to be the limit of the sea belt for the coast of
the Bailiwick of Sunnmöre, within which the fishing shall be exclusively
reserved to the inhabitants of the country."
This, according to Professor Bourquin (October 6), was the first application
of the Decree of 1812 to fishing. The straight base-line connecting the two
islands above mentioned was 26 miles in length.
The Counter-Memorial contains in Annex 16 a Statement of Reasons submitted
by the Minister of the Interior to the Crown dated October 1st, 1869, about
which a few very much compressed
[p 176] comments must be made, firstly, it represents the cry of the small
man in the open boat against the big man in the decked boat. It says that
the area in question "has of recent years been invaded by a growing number
of decked vessels, both Swedish and Norwegian cutters, from which fishing
was practised with heavy lines", etc. Apparently the Swedes began it in 1866
and the Norwegians followed suit. Another passage states that the local
fishermen "bitterly complained of the fact that intruders on the fishing
grounds previously visited exclusively by Norwegians were mainly
foreigners� Swedes". The fear was also expressed that fishing boats from
other countries, especially France, might soon appear on the fishing banks.
Accordingly, the Minister had been asked "to form an opinion on the
possibility of claiming them as Norwegian property". (The reference to
France was probably prompted by the Vestfjord incident of the previous year
which would be fresh in the departmental mind.)
The Statement of Reasons invokes the precedent of the Decree of 1812. In
addition, there is a letter of November 1st, 1869 (Annex No. 28 to the
Counter-Memorial) from the Norwegian Minister of the Interior to the Swedish
Minister of Civil Affairs, informing him of the Decree made on the 16th
instant ( ? ultimo), and it contains the passage: "it has been desired to
bring this matter to the notice of the Royal Ministry in order that the
latter may publish the information in those Swedish districts from which the
fishing fleets set out for the Norwegian coast". (There is no evidence of
any notification of the Decree to any other State.) The penultimate sentence
in this letter is as follows:
"Moreover, if the fishery in these areas were left open, there is reason to
believe that the fishermen of many foreign countries would visit them, with
the result of a diminution of the products of the fishery for everybody."
The Decree was a public document. A large part of the Statement of Reasons
is quoted in the Norwegian Report of a Commission on the Delimitation of
Territorial Waters of 1912, but, so far as I am aware, the Statement of
Reasons was not published at the time of making the Decree.
The French Government�probably on the quivive by reason of the Vestfjord
incident of the previous year�became aware of the Decree of 1869 two months
later and a diplomatic corre-spondence between the two Governments ensued,
in which the French Government contended that "the limits for fishing
between [Svinöy and Storholmen] should have been a broken line following the
configuration of the coast which would have brought it nearer [p 177] that
coast than the present limit". The last item in this correspondence is a
Note from the French Charge d'Affaires at Stockholm to the Foreign Minister
of Norway and Sweden, dated July 27, 1870, which referred to "the future
consequences .... that might follow from our adhesion to the principles laid
down in the Decree", and stated that "this danger .... could easily be
avoided if it were understood that the limit fixed by the Decree of October
16th does not rest upon a principle of international law, but upon a
practical study of the configuration of the coasts and of the conditions of
the inhabitants", and offered to recognize the delimitation de facto and to
join in "a common survey of the coasts to be entrusted to two competent
naval officers". It would appear that the French Government wished to
protect itself against a de jure recognition of principle. Meanwhile, on
July 19, the Franco-Prussian war had broken out, and there the matter has
rested ever since.
(iv) A Royal Decree of September 9th, 1889, extended the limit fixed by the
Decree of 1869 northward in front of the districts of Romsdal and Nordmöre
by means of a series of four straight lines, connecting islands, totalling
about 57 miles, so that the two Decrees of 1869 and 1889 established
straight base-lines of a total length of about 83 miles. The Decree of 1889
was also motivated by a Statement of Reasons submitted by the Minister of
the Interior to the Crown, which was included in a publication called
Departements- Tidende of March 9, 1890. This Statement of Reasons, which
also refers to the Decree of 1812, indicates the necessity of empowering
the Prefect responsible for Nordmöre and Romsdal to make regulations
prohibiting fishing boats from lying at anchor at certain points on the
fishing grounds during February and March. It makes no reference to foreign
vessels.
The question thus arises whether the two Decrees of 1869 and 1889, affecting
a total length of maritime frontier of about 83 miles, and connecting
islands but not headlands of the mainland, ought to have been regarded by
foreign States when they became aware of them, or ought but for default on
their part to have become aware, as notice that Norway had adopted a
peculiar system of delimiting her maritime territory, which in course of
time would be described as having been from the outset of universal
application throughout the whole coast line amounting (without taking the
sinuosities of the fjords into account) to about 3,400 kilometres (about
1,830 sea-miles), or whether these Decrees could properly be regarded as
regulating a purely local, and primarily domestic, situation. I do not see
how these two Decrees can be said to have notified to the United Kingdom the
existence of a system of straight base-lines applicable to the whole coast.
In the course of the oral argument. Counsel for the United Kingdom admitted
that [p 178] the United Kingdom acquiesced in the lines laid down by these
Decrees as lines applicable to the areas which they cover.
(v) A Decree of January 5th, 1881, prohibited whaling during the first five
months of each calendar year
"along the coasts of Finnmark, at a maximum distance of one geographical
league from the coast, calculating this distance from the outermost island
or islet, which is not covered by the sea. As regards the Varangerfjord, the
limit out to sea of the prohibited belt is a straight line; drawn from Cape
Kibergnes to the River Grense-Jakobselv. It must thereby be understood,
however, that the killing or hunting of whales during the above-mentioned
period will also be prohibited beyond that line at distances of less than
one geographical league from the coast near Kibergnes."
Thus, while expressly fixing a straight base-line across the mouth of the
Varangerfjord (which is no longer in dispute in this case), the Decree makes
no suggestion and gives no indication that it instituted a system of
straight base-lines from the outermost points on the mainland and islands
and rocks at any other part "along the coasts of Finnmark". I find it
difficult to see how this Decree can be said to have given notice of a
Norwegian system of straight base-lines from Træna in the west to the
Russian frontier in the east.
(vi). The 1881 Hague Conference regarding Fisheries in the North Sea
resulting i/i the Convention of 1882. The Judgment of the Court refers to
this incident and draws certain conclusions from it. This Conference was
summoned upon the initiative of Great Britain with a view to the signature
of a Convention as to policing the fisheries in the North Sea. The following
States were represented: Germany, Belgium, Denmark, France, Great Britain,
Sweden, Norway, the delegate of the last-named being M. E. Bretteville,
Naval Lieutenant and Chief Inspector of Herring Fishery. The intention was
that the Convention should operate on the high seas and not in territorial
waters, and consequently it was necessary to define the extent of the
territorial waters within the area affected. The procès-verbaux of the
meetings are to be found in a British White Paper C. 3238, published in
1882.
The northern limit of the operation of the Convention was fixed by Article 4
at the parallel of the 61st degree of latitude, which is south of the area
in dispute in this case.
At the second session of the Conference, the question of Territorial Waters
was discussed, and the following statement appears in the procès-verbaux: [p
179]
"The Norwegian delegate, M. E. Bretteville, could not accept the proposal to
fix territorial limits at 3 miles, particularly with respect to bays. He was
also of opinion that the international police ought not to prejudice the
rights which particular Powers might have acquired, and that bays should
continue to belong to the State to which they at present belong."
Strictly speaking, there was no need for the Norwegian delegate to refer to
the Decree of 1869 because the Convention deals with the area south of the
parallel of the 61st degree of latitude, but if a system of straight
base-lines had already been adopted by Norway in 1881 as being of general
application all round the coast, it is surprising that he made no reference
to it at a Conference at which all the States primarily interested in
fishing in the North Sea were represented, and as a result of which all,
except Norway and Sweden, accepted the provisions of Article II of the
Convention, of which the following is an extract:
"Article II
The fishermen of each country shall enjoy the exclusive right of fishery
within the distance of 3 miles from low-water mark along the whole extent of
the coasts of their respective countries, as well as of the dependent
islands and banks.
As regards bays, the distance of 3 miles shall be measured from a straight
line drawn across the bay, in the part nearest the entrance, at the first
point where the width does not exceed 10 miles."
The Convention was eventually signed and ratified by all the States
represented except Norway and Sweden.
This incident, to which I attach particular importance, induces me to put
two questions:
(a) If a Norwegian system of delimiting territorial waters by means of
straight base-lines had been in existence since 1869 (only 12 years
earlier), could the Norwegian delegate, the Chief Inspector of Herring
Fishery, have found a more suitable opportunity of disclosing its existence
than a Conference of Governments interested in fishing in the North Sea ? In
fact, could he have failed to do so if the system existed, for it would have
afforded a conclusive reason for inability to participate in the Convention
of 1882?
(b) Could any of the Governments which ratified this Convention, knowing
that Norway claimed four miles as the width of territorial waters and
claimed her fjords as internal waters, be affected by the abstention of
Norway with notice of the existence of a system which one day in the future
would disclose long straight [p 180] base-lines drawn along a stretch of
coast line about 560 miles in length (without counting fjords and other
indentations), and which is applicable to the whole coast?
***
Paragraph 96 of the Counter-Memorial, in discussing the events of the year
1908, states that
"it may be asked why Norway did not from the beginning use force on all her
territorial waters to apply the existing laws relating to foreign fishermen"
.... "In this respect it must be remembered that Norway had but recently
acquired a separate diplomatic service, following the dissolution of the
union with Sweden in 1905."
It is possible that this fact may explain the absence of any categorical
assertion of the Norwegian system of straight base-lines as a system of
universal application along the Norwegian coasts and the notification of
that system to foreign States. But even if this is the explanation, it is
difficult to see why it should constitute a reason why foreign States should
be affected by notice of this system and precluded from protesting against
it when it is enforced against them.
***
In these circumstances, I do not consider that the United Kingdom was aware,
or ought but for default on her part to have become aware, of the existence
of a Norwegian system of long straight base-lines connecting outermost
points, before this dispute began in 1906 or 1908 or 1911.
***
I must refer very briefly to certain incidents occurring after the dispute
began, though they have no bearing on the question of acquiescence. Some of
them are dealt with in the Judgment of the Court or in other Individual
Opinions.
In 1911, the Norwegian Government appointed a "Commission for the Limits of
Territorial Waters in Finnmark", which reported on February 29th, 1912. A
copy of Part I, General, was translated into French and sent "unofficially"
to the United Kingdom Government.
The following passage occurs on page 20 of this Part I:
� En général, dans les cas particuliers, on prendra le plus sûrement une
décision en conformité avec la vieille notion juridique norvégienne, si
l'on considère la ligne fondamentale comme étant [p 181] tirée entre les
points les plus extrêmes dont il pourrait être question, nonobstant la
longueur de la ligne."
This is clearly the language of a proposal. The tenses of the verbs should
be noted.
On the same day, "the Commission presented Report No. 2 'Special and
Confidential Part', containing proposals for the definite fixing of
base-lines around Finnmark" (Counter-Memorial, paragraph 104). In 1913 a
confidential Report was made upon the proposed base-lines on the coasts of
the two other provinces concerned, Nordland and Troms (ibidem, paragraph
105). It appears (ibidem) that the base-points proposed in these
confidential Reports are those ultimately adopted by the Decree of 1935; the
confidential Reports were not disclosed until 1950 when they appeared as
Annexes 36 and 37 of the Counter-Memorial.
***
The Judgment of the Court refers to the Judgment of the Supreme Court of
Norway in the St. Just case in 1934, in which that British vessel was
condemned for fishing in territorial waters under the Law of 1906. It is
clearly a decision of high authority. From 1934 onwards, it is conclusive in
Norway as to the meaning of the Decree of 1812 and as to its effect, whether
or not it has been specifically applied to portions of the coast by later
Decrees. But this Court, while bound by the interpretation given in the St.
Just decision of Norwegian internal law, is in no way precluded from
examining the international implications of that law. It is a
well-established rule that a State can never plead a provision of, or lack
of a provision in, its internal law or an act or omission of its executive
power as a defence to a charge that it has violated international law. This
was decided as long ago as in the Geneva Arbitration of 1870-1871 on the
subject of the Alabama Claims, when the British Government pleaded that it
had exercised all the powers possessed by it under its existing legislation
for the purpose of preventing the Alabama from leaving a British port and
cruising against Federal American shipping, an omission which cost Great
Britain a large sum of money.
The St. Just decision is important in the sense that, after the decision,
the existence of a Norwegian system of straight baselines cannot be denied
either within Norway or on the international plane. Only eight years
earlier there had occurred the Deutsckland case (a case of an attempt by a
German vessel to sell contraband spirits) (Annex 9 to the Memorial and Annex
47 to the Counter-Memorial and Annex 31 to the Reply), in which [p 182] the
Norwegian Supreme Court, b\ a majority of 5 to 1, quashed a conviction by an
inferior Court which had been upheld by the Court of Appeal. In the
Deutschland case, which has now been overruled by the St. Just, it was
possible for so distinguished a Norwegian jurist as the late Dr. Ræstad
(much quoted by both Parties in this case) to say in the Opinion supplied by
him at the request of the Public Prosecutor that:
'' The question arises, however, whether in the present case the extent of
the maritime territory must be determined from islands, islets and isolated
reefs, or�as the Court of First Instance has done�from imaginary base-lines
drawn between two islands, islets or reefs and, if necessary, how these
base-lines are to be drawn. A distinction must be made here. On the one
hand, the problem arises whether according to international law a State is
entitled to declare that certain parts of the adjoining sea fall under its
sovereignty in certain�or all�respects. On the other hand, the question may
arise whether a State under international law, or by virtue of its own laws,
is entitled to consider that its national legislation in the determined case
extends to these same parts of the adjoining sea when it has not yet been
established that its sovereignty extends that far. A State may have a
certain competence without having made use of it."
and later
'' Neither the letters patent [that is, in effect, the Decree of 1812] nor,
if they exist, the supplementary rules of customary law, prescribe how and
between what islands, islets or rocks the base-lines . should be drawn...."
It does not greatly matter whether Dr. Raestad's views are right, or wrong.
What is important, from the point of view of the notoriety of the Norwegian
system of straight base-lines, is that, in the year 1926, a lawyer of his
standing and possessing his knowledge of the law governing Norwegian
territorial waters should envisage the possible alternative methods of
drawing base-lines, for the Norwegian contention is that the United Kingdom
must for a long time past have been aware of the Norwegian system of
straight base-lines connecting the outermost points on mainland, islands and
rocks, and had acquiesced in it.
The following passage occurs in the Deutschland case in the Judgment of
Judge Bonnevie, who delivered the first judgment as a member of the
majority:
" It is also a matter of common knowledge that the public authorities have
claimed, since time immemorial, certain areas, such as for example the
Vestfjord and the Varangerfjord, as being Norwegian territorial waters in
their entirety, and that the territorial limits should be drawn on the basis
of straight lines at the mouth of the fjord (sic), regardless of the fact
that very great areas outside the four-mile limit are thus included in
Norwegian territory. But, [p 183] for the greater part of the extensive
coast of the country, no documents have been produced to prove that there
exist more precise provisions, except for the coast off the county of More,
for which reference is made to the two royal decrees of 1869 and 1889
referred to above."
***
Between 1908 and the publication of the Decree of 1935, the United Kingdom
repeatedly asked the Norwegian Government to supply them with information as
to their fishery limits in northern Norway; see the Report of the Foreign
Affairs Committee of the Storting dated June 24th, 1935 (Memorial, Annex
15), which states that "The British Government have repeatedly requested
that the exact limit of this part of the coast should be fixed so that it
might be communicated to the trawler organizations." The Norwegian reply to
these requests has been that the matter was still under consideration by a
Commission or in some other way, e.g., in the letter of August nth, 1931,
from the Norwegian Ministry of Foreign Affairs, "the position is that the
Storting have not yet taken up a standpoint with regard to the final marking
of these lines in all details".
The impression that I have formed is that what in the argument of this case
has been called "the Norwegian system" was in gestation from 1911 onwards,
that the St. Just decision of 1934 (over-ruling the Deutschland decision)
marks its first public enunciation as a system applicable to the whole
coast, and that the Decree of 1935 is its first concrete application by the
Government upon a large scale. I find it impossible to believe that it was
in existence as a system at the time of the Deutschland decision of 1926.
***
(D) Another ground upon which Norwegian counsel have sought to justify the
Decree of 1935 is that in any case the waters comprised within the outer
lines fixed by that Decree lie well within the ancient fishing grounds of
Norway to which she acquired a historic title a long time ago.
I think it is true that waters which would otherwise have the status of high
seas can be acquired by a State by means of historic title, at any rate if
contiguous to territorial or national waters ; see Lord Stowell in The Twee
Gebroeders (1801), 3 Christopher Robinson's Admiralty Report 336, 339. But,
as he said in that case:
"Strictly speaking, the nature of the claim brought forward on this occasion
is against the general inclination of the law; for it is a claim of private
and exclusive property, on a subject where a [p 184] general, or at least a
common use is to be presumed. It is a claim which can onlv arise on portions
of the sea, or on rivers flowing through different States.... In the sea,
out of the range of cannon-shot, universal use is presumed.... Portions of
the sea are pres-cribed for.... But the general presumption certainly bears
strongly against such exclusive rights, and the title is a matter to be
established, on the part of those claiming under it, in the same manner as
all other legal demands are to be substantiated, by clear and competent
evidence."
Another rule of law that appears to me to be relevant to the question of
historic title is that some proof is usually required of the exercise of
State jurisdiction, and that the independent activity of private individuals
is of little value unless it can be shown that they have acted in pursuance
of a licence or some other authority received from their Governments or that
in some other way their Governments have asserted jurisdiction through them.
When the documents that have been submitted in this case in support of
historic title are examined, it appears to me that, with one exception which
I shall mention, they are marked by a lack of precision as to the waters
which were the subject of fishing. We get expressions such as "near our
fortress of Varshus", "off the coasts of Finnmark", "the waters off the
coast of this country", "near the land", "fish quite close to the coast",
"unlawful fishing which they have been practising in certain localities",
"the waters of Finnmark", "fjords or their adjacent waters", "whaling in the
waters which wash the coast of Norway and its provinces, in particular
Iceland and the Faroe Islands", etc., etc.
The exception is the case of the licences granted to Eric Lorch in
the-seventeenth century (see Annex 101 to Norwegian Rejoinder). In 1688 he
received a licence to fish in, amongst other places, "the waters .... of the
sunken rock of Gjesbaen" ; in 1692 he received a licence to hunt whales ; in
1698 he received another licence to hunt whales, which mentions, among other
places, "the waters .... of the sunken rock of Gjesbaen". The last two
licences state that it is forbidden to "all strangers and unlicensed persons
to take whales in or without the fjords or their adjacent waters, within ten
leagues from the land".
I do not know precisely where the rock called Gjesbaen or Gjes-baene is
situated, beyond the statement in paragraph 36 of the Counter-Memorial that
it is "near the word Alangstaran", which is marked on the Norwegian Chart 6
(Annex 75 to the Rejoinder) as being outside the outer Norwegian line of the
Decree of 1935. On the same chart of the region known as Lopphavet there
appear to be two fishing-banks called "Ytre Gjesboene" and, south of it,
"Indre Gjesboene", the former being outside the outer line of the Decree of
1935 and the latter between the outer line and the base-line of that Decree.
What the dimensions of the fishing-banks are is not [p 185] clear. The
length of the base-line (from point 20 to 21) which runs in front of
Lopphavet is 44 miles, so that even if the licences formed sufficient
evidence to prove a historic title to a fishing-bank off "the sunken rock of
Gjesbaen", they could not affect so extensive an area as Lopphavet. The
three licences cover a period of ten years and there is no evidence as to
the duration of the fishery or its subsequent history.
***
In these circumstances I consider that the delimitation of territorial
waters made by the Norwegian Decree of 1935 is in conflict with
international law, and that its effect will be to injure the principle of
the freedom of the seas and to encourage further encroachments upon the high
seas by coastal States. I regret therefore that I am unable to concur in the
Judgment of the Court.
(Signed) Arnold D. McNair.
[p 186]
DISSENTING OPINION OF JUDGE J. E. READ
While I agree with the majority of the Court in accepting the Norwegian
contentions as regards the Indreleia and the Vestfjord, I am unable to
concur in parts of the judgment which relate to other sections of the coast
in question. It is, therefore, necessary for me to state the reasons which
have led me to the conclusion that the establishment of certain of the
base-lines by the Royal Norwegian Decree of 1935 was not in conformity with
international law.
The Government of the United Kingdom has relied upon a rule or principle of
international law, which has been referred to as the Tide-Mark or Coast-Line
Rule. The contention is that the belt of territorial waters must be measured
from the coast line in the widest sense of that term: from the low-tide mark
on the mainland coast and on islands; and from the outer limit of internal
waters. It is conceded that the point of departure for the base-lines may be
the outer fringe of the "skjaergaard".
The Government of Norway contends that the coastal State is entitled to
establish its belt or zone of territorial waters measured from straight
lines drawn between the outermost islands, rocks or mainland points, with no
restriction on the length of the lines. Norway admits to some limitations :
geographic, such as visibility and conformation to the general direction of
the coast ; and others of a political, social or economic character, such as
the needs of the coastal population and the location of fishing banks.
Norway further contends that, even if international law recognizes a
Coast-Line Rule, it is not applicable to the Arctic coast of Norway, because
the rule is not and cannot be applied to broken coast lines, and especially
to the unique Norwegian coast.
Before examining the legal aspects of the dispute, it is necessary to look
at some of the facts.
Norway, by the Decree of 1935, has asserted a claim over extensive areas of
the seas off the coasts of Finnmark, Troms and part of Nordland. The outer
limit of these areas is shown on the Norwegian charts, 3-9, by a heavy blue
line, which may be referred to as the Blue Line. It is parallel to and 4 sea
miles distant from the base-lines connecting points 1-48.
The United Kingdom concedes Norway's right to a marginal belt of 4 miles,
measured from the coast at low-water mark and from the closing lines of
fjords and sunds and other internal waters. The extent of the waters thus
conceded is indicated by the pecked [p 187] green line on these charts,
which may be referred to as the Green Line. This line would need minor
modification to ensure exact correspondence with the "pecked green line"
marked on the British charts. It would also need substantial readjustment on
charts 5-9 to take into account the decision of the Court regarding the
Indreleia and the Vestfjord, but this can be disregarded for the time being.
The parts of the sea between the Blue Line and the Green Line are in
dispute. They are indicated in the British charts used during the Oral
Proceedings by yellow patches. The United Kingdom claims that they are high
seas; Norway, that they are territorial waters. It will be convenient to
refer to them as Disputed Areas.
***
Returning to the legal aspects of the problem, I have no doubt that the
Coast-Line Rule is an established rule of international law.
The collapse of the claims to maritime domain, based on mare clausum and
similar doctrines�including those asserted by the Kingdom of Denmark and
Norway�brought about the regime of mare liberum, the freedom of the seas;
under which the seas were open to all men of all nations for all purposes.
Pressure of belligerents in naval warfare destroyed the older pretensions;
but the needs of defence and neutrality led States, even under the new
regime, to assert new exclusive rights over belts or zones based on the
coast.
The recognition of such zones by belligerents was closely linked with the
power of the coastal State to exercise effective control, and it was, at the
outset, restricted to areas within cannon range of fortified points. In
time, it was extended to cover all areas capable of being covered by cannon
shot, whether they were fortified or not. It was an easy step from the range
of cannon to the 3-mile limit: a belt of territorial waters 1 marine league
in breadth, subject to the exclusive authority of the coastal State and from
which foreign belligerent operations were excluded. Some countries have
claimed wider zones or more extensive areas ; but, for a very long time,
none has disputed the right of a coastal State to assert sovereignty over a
belt of territorial waters measured from the coast. [p 188]
In the course of the 19th century, it became necessary to give further
consideration to bays. The establishment of a belt of territorial waters
measured from the coast met most of the needs of coastal States as regards
defence and security. Such waters were in their very nature part of the sea.
Bays, however, presented a special problem. They penetrated into the
country, and were largely enclosed by their headlands. The application of
the concept of a belt of territorial waters of fixed breadth to larger bays
would bring the sea, both high seas and territorial sea, into the heart of
the country. It would treat waters which were in their nature internal, as
part of the open sea, and it would bring smugglers and foreign warships and
fishermen into the interior of the coastal State, to the prejudice of its
security and vital interests. The solution of this problem developed along
two different lines.
First: there was a tendency to recognize the right of the coastal State to
claim as internal waters bays which penetrated the coast, notwithstanding
that the distance between the headlands was greater than double the breadth
of the marginal belt, e.g., more than 6 or 8 miles. The records of State
practice embodied in the documents prepared for the Hague Conference, 1930,
indicated that there was a readiness on the part of most States to recognize
such claims over bays not more than 10 miles wide.
There were, however, maritime Powers which asserted the right to claim as
internal waters bays of greater breadth, or even to claim all bays
regardless of the distance between headlands; but there was no indication
that such wider claims were recognized by the international community.
Further, there were some States which adhered to a six-mile limit.
Second: it was recognized that, regardless of breadth, the coastal State
could treat as internal waters those bays over which they had exercised
sovereignty, without challenge, for a long time. This is the doctrine of
historic waters, and it is not confined to bays, but can be applied to the
assertion of rights over historic waters which do not possess all the
characteristics of a bay. The rights of the coastal State are, in this case,
fully supported by customary law.
As regards these three types of waters�the belt of territorial waters,
10-mile bays and historic waters�there is no instance in which the claim of
a coastal State has been successfully challenged since the North Atlantic
Fisheries Arbitration. They can, therefore, all be regarded as established
by rules of customary international law. Whether or not claims to bays of
greater breadth can be supported, apart from historic factors, is a question
which does not need to be considered in this case. It should also be noted
[p 189] that, in the case of all types of bays or historic waters, the
marginal belt of territorial waters is measured from the outer limit of the
internal waters.
In this case Norway is asserting the right to measure the 4-mile belt, not
from the coast line, but irom long straight base-lines. These lines depart
from the line of the coast in Eastern Finnmark, and from the line of the
outer fringe of the "skjaergaard" between the North Cape and the Vestfjord.
The Court is concerned with this question:
�whether customary international law recognizes the right of a coastal State
to use straight base-lines for the delimitation of its belt of territorial
waters in such a manner as to depart from the line of the coast, and to
encroach upon the high seas, thus depriving other States of rights and
privileges to which they had previously been entitled under the rules of
inter-national law.
It has been contended that such a claim can be derived from the sovereignty
of the coastal State, but I do not see how this can be. Here, we are not
dealing with the exercise, by a State, of sovereignty within its domain. We
are dealing with State action which extends its domain, and purports to
exclude all other States from areas of the high seas. We are dealing with
expansion of the maritime domain designed to deprive other States of rights
and privileges which, before the extension, they were entitled to enjoy and
exercise, under the rules of international law.
In these circumstances, I should have much difficulty in justifying the
Norwegian system as an exercise of powers inherent in State sovereignty.
The question remains: whether action by a State, encroaching on the high
seas and depriving other States of their rights and privileges, can be
justified by customary international law.
The true legal character of the problem has been obscured. It has been
treated as if the issue concerned the existence or nonexistence of a rule
of customary international law restricting the exercise of sovereign power
by coastal States. It has been assumed that the United Kingdom must
establish the existence of such a restrictive rule in order to challenge the
validity of the 1935 Decree. It has been suggested that the British case
must fail, unless it can be proved that such a restrictive rule is founded
on customary international law.
The actual legal problem with which we are concerned is different. By the
Decree of 1935, Norway has attempted to enlarge the Norwegian maritime
domain and to encroach on extensive [p 190] areas of the high seas, and has
seized and condemned foreign ships. Accordingly, we must consider whether
such a course is justified. Disregarding, for the time being, the historic
factor, we must begin by examining the extent of the power to delimit its
maritime domain, given to a coastal State by international law.
Here, I have no doubt about the position. The power of a State to delimit
its maritime domain is the same as its power to delimit any other part of
its domain. It can extend its domain in any way that does not impair the
rights of other States or of the international community: e.g., it can
occupy no man's land, res nullius; or it can annex occupied territory, with
the consent of the territorial sovereign. It cannot go beyond the
territorial limits of its existing sovereignty, if such a course impairs
rights or privileges conferred on other States by international law.
No question of res nullius or annexation arises in the case of the sea. All
nations enjoy all rights and all privileges in and over all of the sea
beyond the limit of territorial waters. It follows that the power of a
coastal State to mark out its maritime domain cannot be used so as to
encroach on the high seas and impair these rights and privileges. Its power
is limited to the marking out of areas already subject to its sovereignty.
Accordingly, it is necessary to examine the actual extent of Norwegian
territorial waters, as recognized by customary international law before the
making of the 1935 Decree. It certainly consisted of a belt of territorial
waters 4 sea miles in breadth: but the question is to determine the starting
points from which the belt should be measured.
Few States have marked out their maritime domains, and the course followed
by Norway, in 1869, 1881, 1889 and 1935, was unusual. In general, the matter
has been left to national courts, to prize courts, to arbitral tribunals and
to diplomatic procedures in the innumerable cases which have arisen and
which have been dealt with in the practice of States. Over the last
century-and-a-half, there have been many hundreds of cases in which foreign
ships have been seized by the authorities of coastal States. They have
arisen in naval war, in smuggling, in fisheries protection and in other
matters. They have given rise to legal problems, national and international.
The demarcation of territorial waters or of customs zones or the
establishment of the distance from the coast has nearly always been in
issue, and has been decided by national courts or international tribunals,
or settled by diplomatic negotiations. In naval war, instructions have been
given to commanders, and seizures have been dealt with by prize courts. [p
191]
Customary international law is the generalization of the practice of States.
This cannot be established by citing cases where coastal States have made
extensive claims, but have not maintained their claims by the actual
assertion of sovereignty over trespassing foreign ships. Such claims may be
important as starting points, which, if not challenged, may ripen into
historic title in the course of time.
The only convincing evidence of State practice is to be found in seizures,
where the coastal State asserts its sovereignty over the waters in question
by arresting a foreign ship and by maintaining its position in the course of
diplomatic negotiation and international arbitration.
Here, it is necessary to rule out seizures made by Norway at and since the
commencement of the dispute. They met with immediate protest by the United
Kingdom, and must, therefore, be disregarded. Seizures made in bays need not
be taken into account, because it is common ground that coastal States may
measure the belt of territorial waters from straight base-lines joining the
headlands of bays.
Setting aside these instances which are irrelevant to the present issue,
State practice may be examined. To begin with, the Record in this case shows
that Norway has maintained a four-mile limit for territorial waters since
1745. For part of the time this was used only for neutrality and prize ;
but, for much of the time, it was applied to fisheries. During the whole of
the period since 1747 foreign fishermen have been fishing in the
neighbourhood of the Norwegian coast; Russians in the north, and, during the
last eighty or ninety years, French and Swedish fishermen in the south.
Further, there have been many naval wars in which Norway was neutral, and
the Record shows that infringements of neutrality and incursions of
privateers were a serious menace to the country. It is noteworthy that there
is not a single instance in which Norway asserted sovereignty in any of the
Disputed Areas�or, indeed, over waters measured from long base-lines in
other parts of the country�by seizing a foreign poaching fisherman or by
action taken against a trespassing privateer, prize or man-of-war.
The same situation obtains in the case of other coastal States. No instance
has been cited by either Party in which a coastal [p 192] State has seized a
foreign ship and justified and maintained the seizure, on the international
plane, by relying on long base-lines departing from the direction and
sinuosities of the coast. It has been a universal practice�in diplomatic
negotiations, in prize courts, in national tribunals (in so far as they were
applying international law) and in international tribunals�to rely upon the
measurement of the territorial belt from the nearest land (or internal
waters).
There have been instances in which unsuccessful attempts have been made to
justify seizures on the basis of long straight baselines departing from the
line and direction of the coast. There are the Moray Firth cases, in which
seizures were upheld by the Courts on the authority of the local law, but in
which the position thus asserted was abandoned on the international plane by
the Govern-ment of the United Kingdom. There are also the cases cited in
Moore (Internatinal Law Digest, "The 'Headland' Theory", Vol. I, pp.
785-788), where attempts to justify seizures on this basis were frustrated,
either in the course of diplomatic negotiation or by international
tribunals.
The practice of States in dealing with actual assertion and enforcement of
claims over territorial waters is clear, unequivocal and consistent. It has
been based upon the measurement of the terri-torial belt from the nearest
land. I am compelled to conclude that "The Headland Theory", the claim by a
coastal State to a belt of territorial waters measured from long base-lines
which depart from the line of the coast, has no support in customary
international law.
I do not think that the Court is called upon to pronounce upon the various
methods by which hydrographers have worked out the limits of territorial
waters on charts. I must, however, point out that the so-called "arcs of
circles method" is nothing more or less than a technical expression, used to
describe the way in which the coast-line rule has been applied in the
international practice of the last century-and-a-half.
In the earliest days, the cannon on the coast, when traversed, traced arcs
by the splash of their shots. Later, the imaginary cannon traced imaginary
arcs which intersected and marked out the limit based on cannon shot. Then,
as now, the imaginary cannon, mounted in minor concavities of the coast,
were wasted, because their arcs were within the limits of the intersection
of the shots from guns mounted at minor headlands. The substitution of the 3
or 4-mile limit made no difference. The fisherman, the smuggler, the master
of the revenue cutter and the captain of the cruiser all fixed the limit of
territorial waters by measurement from the nearest land. Innumerable
national courts, international tribunals and prize courts settled the limits
in the same way. Air [p
193] patrols have followed the same course. All reached the same result; and
it did not make any difference where the problem arose or what was the
nationality of the ships. What is more, all reached precisely the same
result as a hydrographer gets, by drawing circles on a chart.
Before turning to the historic aspect of the problem, I must deal with the
Norwegian contention that, even if international law recognizes a Coast-Line
Rule, it is not applicable to broken coast lines, or, in any event, not to
the unique coast in question.
It is unrealistic to suggest that the northern coast of Norway is unique or
exceptional in that it has a broken coast line in East Finnmark, or because
West Finnmark, Troms and Nordland are bordered by a coastal archipelago,
deeply indented by fjords and sunds. In other parts of the world, different
names are used, but there are many other instances of broken coast lines and
archipelagoes. The Court has seen the west coast of Scotland on the charts
produced at the hearings. There are coastal archipelagoes, deeply indented
bays and broken coast lines on the north, south, east and west coasts of
Canada, in the panhandle of Alaska, in South America, and, doubtless, in
other parts of the world. There could be no greater danger to the structure
of international law than to disregard the general rules of positive law and
to base a decision on the real or imaginary exceptional character or
uniqueness of' the case under consideration.
I cannot overlook the fact that the rejection of "The Headland Theory" by
positive international law was based, to a very large extent, on the
precedents collected in Moore's International Digest, cited above. They
arose on the coast of Nova Scotia and Prince Edward Island, a coast line
deeply indented and broken by bays and other inlets, fringed in many places
with groups of islands, rocks and reefs, a coast to which the terms
"exceptional" and "unique" could readily be applied.
I am therefore led to the conclusion that the rules of international law
which, under comparable circumstances, are applicable to other countries in
other parts of the world, must be applied to the coast of Norway.
***
Having reached the conclusion that the Norwegian claim to measure its belt
of territorial waters from long straight base-lines which depart from the
line of the coast has no support in customary [p 194] international law, it
is necessary to consider the question of historic title. This aspect of the
problem has arisen in two ways, both of which involve decisions on the same
basic questions of fact. Both are related to the existence and application
of the Norwegian System.
The Norwegian System involves the assertion, by Norway, of sovereignty over
all the fjords and sunds, and over a 4-mile belt of territorial waters,
measured from base-lines connecting points on the mainland, or on the
outermost islands, islets or rocks not continuously submerged by the sea.
The System involves appreciation and selection of the base-points by Norway,
taking into account the social and economic needs of the local population.
There is no limitation on the length of the lines. On the other hand, it is
recognized that they must be reasonable and that they must conform to the
general direction of the coast. By general direction is meant a fictional
direction related to the country as a whole, and not to the sector of the
coast under consideration. The System does not admit of any need to conform
to the real direction either of the outer fringe of the "skjærgaard" or of
the mainland coast.
The first way in which the historic aspect of the problem arises concerns
the doctrine of historic waters. If it can be shown that the Norwegian
System was actually applied to the Disputed Areas, they can be regarded as
historic waters, and the British case fails.
The second way in which it arises concerns the general doctrines of
international law. If it can be shown that the Norwegian System has been
recognized by the international community, it follows that it has become the
doctrine of international law applicable to Norway, either as special or as
regional law, and the British case fails.
In both cases the burden is upon Norway to prove the following facts:
1st� that the Norwegian System came into being as a part of the law of
Norway;
2nd�that it was made known to the world in such a manner that other nations,
including the United Kingdom, knew about it or must be assumed to have had
knowledge; and
3rd�that there has been acquiescence by the international community,
including the United Kingdom.
As regards the question of historic waters there is the additional point
referred to above, namely, that it must be shown that the System was
actually applied to the Disputed Areas. In the second case, treating the
System as special or regional law, it would be enough to show that Norway
had asserted competence to apply its [p 195] provisions to the coasts of
Norway in general, including the Disputed Areas. It would, however, be
necessary to show that the 1935 Decree conformed to the requirements of the
System.
This case, therefore, turns on the date when the Norwegian System came into
being, as a system : part of the public law of Norway ; applicable or
applied to the coast in question; known to the world; and acquiesced in by
the international community.
***
It will be convenient to begin by examining the question: whether the System
was actually applied to the Disputed Areas before the commencement of the
dispute. If not, the Norwegian contentions fail, as regards the doctrine of
historic waters in the strict sense.
As the judgment of the Court does not rely on historic title in this sense,
it is possible to treat it briefly. For that purpose, consideration can be
given to the sector of the coast where most evidence is available�the
Disputed Area between base-points 5 and 6 in East Finnmark. The question is
whether the Norwegian System was applied to this Disputed Area so that it
became subject to the doctrine of historic waters.
The highest Court in Norway decided, in the St. Just case, that the
application of the Norwegian System, on that sector, meant the assertion of
exclusive Norwegian rights over a belt of waters four miles in breadth
measured from the base-line between points 5 and 6.
Uncontradicted evidence, presented by the Norwegian Agent, proves that the
Norwegian Foreign Ministry, when defending the seizure of the Kanuck in
1923, relied upon the measurement of Norwegian territorial waters from the
Harbakken-Kavringen baseline (9.4 miles) and not the Norwegian System. This
is proved by the Norwegian Note of February nth, 1924, and confirmed by the
affidavit of Mr. Esmarch, Secretary-General of the Norwegian Foreign
Ministry (Counter-Memorial, Annex 41).
In 1930-1931, the diplomatic correspondence between Sir Charles Wingfield
and Mr. Esmarch, arising out of the seizure of the Lord Weir, strongly
confirms this position. It is not contradicted by any evidence produced in
the record. The statement made by Sir Charles Wingfield was questioned by
the Norwegian Agent, who did not produce any evidence to the contrary. The
statement was that the ground relied upon to justify the seizure of the [p
196]
Lord Weir was "that on the night of 15th September she had fished at a spot
3.6 nautical miles outside the line Haabrandnesset-Klubbespiret: i.e. more
than 4 nautical miles from the nearest land". The Norwegian Agent had access
to the Court records in Norway. The diplomatic correspondence was set forth
in the Memorial, Annex 10. He had four opportunities to produce
contradictory evidence: in the Counter-Memorial, in the Rejoinder and at the
two stages of the oral proceedings. He did not choose to do so and in the
circumstances I am compelled to accept Sir Charles Wingfield's statement. It
proves: (1) that, in 1930-1931, the Norwegian judicial and police
authorities were measuring territorial waters from the
Haabrandnesset-Klubbespiret base-line (the same closing lines of Syltefjord
as were subsequently adopted in the Reply at p. 248); (2) that, in
1930-1931, Norway was not applying the Norwegian System to the East Finnmark
coast; (3) that Sir Charles Wingfield put forward specific requests for
information as to the nature and extent of the Norwegian claims; (4) that
Mr. Esmarch's reply was not responsive, and, even at that late date, he did
not give any information that would enable the British Government to
appreciate the nature and extent of the Norwegian System.
The evidence with regard to the Kanuck and Lord Weir incidents shows, beyond
all reasonable doubt, that the Norwegian System was not being asserted and
applied in the Disputed Area in 1923, 1930 or 1931. On the other hand, it is
equally clear that the Norwegian System was being applied in the year 1933.
This point is settled by uncontradicted evidence arising out of the seizure
of the St. Just on November 3rd, 1933. In that case, the St. Just was
seized, prosecuted and condemned for having fished within a territorial belt
4 miles in breadth measured from a line connecting base-points 5 and 6.
These base-points had not then been authorized by the 1935 Decree. It is
only possible to assume that at some time between August nth, 1931, and the
seizure, the Norwegian Government decided to commence the assertion and
enforcement of a claim to a territorial belt measured from long base-lines
connecting the outermost mainland points, islands, etc. In other words,
during this period the Norwegian Government decided to put the Norwegian
System into force.
It is, therefore, clearly established that the Norwegian System was not
actually applied to the Disputed Areas until after August nth, 1931. That
date was long after the dispute had arisen, and the Norwegian contention
fails, as regards historic title in the strict sense. [p 197]
***
Having dealt with the claim to the Disputed Areas as historic waters in the
strict sense, the question remains: whether the Norwegian System can be
treated as a doctrine of special international law, asserted by Norway, and
recognized by the international community.
For this purpose, it is not necessary to show that it was actually applied
in the Disputed Areas before 1933 or 1935. It would be sufficient to prove
that Norway had consistently and persistently asserted the right to apply
the System to the Norwegian coast generally, and that there had been
acquiescence in this claim by the international community.
At the outset, I must explain that I do not regard the older historical data
as important. I think that Norway has sufficiently proved that, at the close
of the 18th century and under the international law of the time, Norway was
asserting exclusive rights over a belt of waters which, as regards fishing
rights, was based on the range of vision. This belt was much more extensive
than that which was marked out by the 1935 Decree. The maritime domain, at
that time and for fishing purposes, extended beyond the Blue Lines and
certainly included nearly all of the Disputed Areas. These extensive
Norwegian rights were not much different from the rights of other countries
where exclusive fishing rights based on range of vision were recognized by
the early international law.
One might ask: how and when did Norway lose these rights? They disintegrated
or fell into desuetude in Norway in the same manner as in other maritime
countries. In Norway, as elsewhere, it is difficult to point to a particular
decree or to special governmental action marking the end. It is, however,
possible to point, with reasonable certainty, to the date.
In the 18th century, the only foreigners engaged in fishing off the northern
coast were Russians. They were excluded from a belt of waters 1 league from
the coast; but were permitted to fish in what were then regarded as
Norwegian waters beyond that limit, on payment of dues which covered both
the fishing and shore privileges. These arrangements were based on
diplomatic negotiations and on the Rescript of 1747.
In the course of time, however, there was general recognition that the
fishing by the Russians beyond the 4-mile limit was of right and not
dependent on permission from the Norwegian authorities. [p 198]
The Royal Commission established in 1825-1826 to examine measures relating
to the economic development of Finnmark, looked upon the fishing beyond the
I-league limit as a special concession granted to the Russian fishermen. The
Royal Legislative Commission took a different view and favoured the opinion
that fishing beyond the i-league limit was in principle free from
restriction.
The Finnmark Commission had proposed for incorporation in Article 40 of its
draft proposal for a law relating to trade in both East and West Finnmark
specific words which would have made it clear that the Russian fishing
beyond the I-league limit was permissive. These words were not included,
and in Article 40 of the Law of 1830 the expression used read as follows:
"If the Russians, by reason of such fishing as they indulge in beyond the
distance of 1 league from the coast, should wish to come ashore, the places
where they land must not be...." It is, therefore, clear that the views of
the Royal Legislative Commission prevailed. (See Rejoinder, Annexes, pp.
31-32.)
This position is confirmed by the statement in the Report of the Territorial
Waters Boundary Commission dated February 29th, 1912, which may be referred
to as the 1912 Report, page 18: "Whatever may have been the object of the
Rescript, a legal practice was nevertheless soon to develop whereby the dues
were paid for the sojourn on land, and fishing beyond the distance of 1
league (1 mil) was regarded as fishing on the open seas."
There can, therefore, be no doubt about date. By 1830 there was definite
recognition that fishing beyond the 4-mile limit was to be regarded as
fishing on the open seas. The ancient exclusive rights of the offshore
fishing grounds beyond that limit had disappeared in so far as Finnmark was
concerned. Whether or not this situation obtained in other parts of Norway
is not clearly established in the Record. There is no reason to believe that
there was any difference in other parts of the country; but, in any event,
by the year 1862 it was certain that the 4-mile limit had been established
for the whole of the coast and for all purposes including fishing. (See
Counter-Memorial, Annex No. 14.)
Accordingly, it is now necessary to consider how and when the Norwegian
System came into being as a part of the public law of Norway.
The origin of certain elements of the Norwegian System�the four-mile limit,
and the claims regarding the fjords and sunds and the "skjaergaard"�are to
be found in the 18th century or earlier: but the use of long straight
base-lines departing from the coast is a modern invention.
The foundation of the base-line doctrine has been attributed to the Royal
Decree of 1691, which prohibited captures "within sight of Our coasts, which
is computed as 4 or 5 leagues from the out-[p 199] lying rocks". I am unable
to accept this view, because I think that this Decree meant what it said.
"Four or five leagues from the outlying rocks" meant a distance measured
from the rocks, and not from imaginary base-lines many miles seaward from
the outlying rocks. "Within sight of the coast" meant range of vision.
Range of vision, from its very nature, must be measured from something
visible, a rock or the coast line. It is inconceivable that the Decree meant
measurement from imaginary base-lines, invisible at short range, and, a
fortiori, invisible at a distance of four or five leagues. There is nothing
in the language used in subsequent laws or decrees, between 1691 and 1868,
that indicates any change from the old, traditional practice of measurement
from the coast line and outermost rocks, reefs and islands.
This view is confirmed by the fact that there is not even one instance,
arising before the commencement of the dispute and cited in the Record of
this case, in which Norwegian claims to waters measured from straight
base-lines (apart, of course, from bays) were enforced against a poaching or
trespassing foreign ship, under the Decrees of 1691,1745, 1747, 1756 or
1812, or under the Law of 1830.
The first suggestion of a base-line doctrine is to be found in the Statement
of Reasons by the Ministry of the Interior which led to the Sunnmöre Decree
of 1869, and in the Norwegian Note No. 4 in the diplomatic correspondence
with France, February 8th, 1870. The Norwegian System has had many
restatements, and in the course of restatement there have been refinements
and definitions and possibly even additions, but the heart of the System is
to be found in these two documents.
Accordingly, while the matter is not free from doubt, I shall proceed on the
assumption that the Norwegian System came into being in 1869.
It is not enough to prove that the Norwegian System came into being in order
to establish it as a special doctrine of international law. It must be
proved that it was made known to the world in such manner that other
nations, including the United Kingdom, knew about it or must be assumed to
have had knowledge.
The first attempt by Norway to rely upon this doctrine was in the Sunnmore
Decree of 1869. There is no text of this Decree (or of the similar Decree of
1889) in the Record of this case. In the circumstances, it is necessary to
rely upon a quotation contained in paragraph 59 of the Counter-Memorial
which does not purport to set forth the whole text of the Decree, but which
probably does so, and which reads as follows: [p 200]
"59. The Royal Decree of October 16th, 1869, provides that 'a straight line
at a distance of one geographical league, parallel with a straight line
joining the islet of Storholmen and the island of Svinoy should be
considered as the limit of the sea belt off the bailiwick of Sondmore,
within which the fishing shall be exclusively reserved to the indigenous
inhabitants'."
The text of the Decree is unequivocal. It establishes a line of demarcation
for a sector of the Norwegian coast far from the Disputed Areas (the same is
true for the 1889 Decree). It says nothing about the coasts of Finnmark,
Troms or Nordland. It does not pretend to lay down any principles of general
application. In itself, it has no bearing on the present case. On the other
hand, it does lay down a long base-line connecting two remote islands.
The question to be decided is whether the making of one Decree, limited in
its scope and applicable only to the particular coast of Sunnmbre in 1869,
followed by a similar Decree continuing the line and using long straight
base-lines for the particular coast of Romsdal in 1889, was enough to make
known to the world the existence of the Norwegian System.
The British concession that the waters covered by the Sunnmore and Romsdal
Decrees are Norwegian historic waters would justify a finding that these
Decrees were sufficiently well known, but they did not make any claims
extending beyond these two localities.
On the other hand, neither the Norwegian Note to France, nor the Statement
of Reasons was brought to the attention of other governments and certainly
not to the attention of the British Government.
Counsel for Norway reviewed the reasons for assuming British knowledge of
the Norwegian System. He showed that the Decrees of 1869 and 1889 had been
published in a gazette called the "Bulletin of the Ministries" and in books
like Fulton and the Reports of the Institute of International Law. He made a
good case for the view that the Decrees were well known to the world, but he
did not point to any instance in which either the Statement of Reasons or
the Note to France, No. 4, was communicated to the British Government, or,
indeed, to any other foreign government.
In these circumstances, I am unable to conclude that the British Government,
or, indeed, any other foreign government except France, had any reason to
believe that a Norwegian System had come into being in 1869-1889, or that
these Decrees were anything more than local ad hoc measures.
I do not intend to review all the official acts and public statements of
the Norwegian Government or to examine the texts of the Laws and Decrees
delimiting Norwegian waters, whether for fishing, prize or other purposes.
For my part it is enough [p 201]
to say that they cover a long period of time, and that they indicate:
1st�that there was no Norwegian System under which exclusive rights were
asserted over the fisheries in the Disputed Areas;
2nd�-that the public acts of the Norwegian Government were, during this
period, consistent with claims to a belt of territorial waters, four miles
in breadth, measured from the coast;
3rd�that there was nothing in these public acts and documents which would
lead the British, or any other foreign government, to believe that Norway
was claiming the Disputed Areas ; or a right, as regards the whole country,
to measure territorial waters from long base-lines departing from the line
and direction of the coast.
These circumstances greatly increase the difficulty which confronts me,
when I am asked to find that there has been constructive notice to the
British Government of the existence of the Norwegian System, or of such
claims by the Norwegian Government. At most, the British Government could be
assumed to have had knowledge that there was a possibility that Norway
might, at some future time, try out a course in other parts of the coast,
similar to that which had been followed in the Sunnmore and Romsdal Decrees.
It is impossible to overlook the fact that the evidence clearly indicates
that the Government of the United Kingdom had no actual knowledge of the
Norwegian System, or of the nature and extent of the rights claimed by
Norway. Reference has already been made to an attempt by Sir Charles
Wingfield to obtain information, and to the refusal by Mr. Esmarch to give
any real indication of the nature and extent of the Norwegian claims. There
are other instances of enquiries, and the Norwegian Agent gave an exhaustive
list of the answers given (Statements in Court, pp. 175-176). An examination
of these answers shows that no information was given to the Government of
the United Kingdom, at any time before the commencement of the dispute, that
could be regarded as actual or constructive notice that Norway was asserting
the right to establish a belt of territorial waters measured from long
base-lines departing from the line of the coast.
There is one of the "answers", to which the Norwegian Agent referred, which
requires special consideration, namely, the 1912 Report. This was a report
of a Norwegian commission intended for the information and guidance of the
Norwegian executive and legislative authorities. It contained extensive
quotations from the [p 202] Statements of Reasons for the 1869 and 1889
Decrees; it showed that the commissioners favoured the method of measuring
territorial waters from long straight base-lines; and it put forward
concrete proposals, similar to those adopted in the 1935 Decree, in the
Annex No. 1 (supplemented by a later report by another committee in
1913�Counter-Memorial, Annexes 36 and 37). The Norwegian Government withheld
these documents so that it was impossible for the British Government to
understand the extent of the claims. Enough remained, however, in the body
of the 1912 Report to show that Norway might be claiming the right to
measure its belt of territorial waters from long straight base-lines.
Accordingly, the question arises: whether this communication of the 1912
Report was notice to the British Government of the existence of the
Norwegian System ; and, if so, whether there was acquiescence by that
Government, so as to enable the claims constituting that System to ripen
into rules of customary international law.
Here, without going into the question whether the Report was an adequate
warning of the existence of the System, I shall consider whether the failure
of the British Government to make specific protests on receipt of the 1912
Report and of the Norwegian Note of November 29th, 1913, can be regarded as
acceptance of the Norwegian claims.
The circumstances attending this communication are plain enough. Controversy
regarding the extent of Norwegian waters had arisen as a result of the
seizure of the British trawler Lord Roberts in the Varangerfjord in March
1911 (Counter-Memorial, Annex 38). The difference between the two
Governments, as understood at the time, was stated in the British
Minister's Note of August 22nd, 1913, as follows:
"The points of view of the two Governments may be briefly defined as being
that, while His Majesty's Government contend that, in the absence of any
specific agreement to the contrary, jurisdiction cannot be exercised in
waters beyond a distance of three marine miles from low-water mark, Norway
claims as within her territorial jurisdiction all waters up to a distance of
four marine miles, together with the whole area comprised in certain
fjords."
The Minister proposed a modus vivendi, and, in his proposal, made it clear
that His Majesty's Government must insist on leaving the question of
principle intact, and cannot admit that, failing a special understanding,
the Norwegian Government are entitled to settle the disputed point
arbitrarily in their own favour." [p 203]
In the Norwegian Foreign Ministry's Note of November 29th, 1913, dealing
with the proposal, reference was made to the 1912 Report:
"The reasons advanced by Norway in support of her delimitation of her
territorial waters, are set forth in the report of a Commission appointed in
1911. A few copies of a French translation of this report were forwarded to
you unofficially at the time by my predecessor Mr. Irgens. In it those
principles of international law were set forth, which, in the opinion of the
Norwegian Government, were favourable to its point of view, together with
the particular circumstances obtaining in the matter of Norwegian
territorial waters, including the recognition accorded thereto, either
explicitly or implicitly by-foreign Powers."
The Ministry went on to suggest modifications of the proposal. Nothing came
of these negotiations, presumably because of the intervention of war.
The 1912 Report was transmitted and adopted by the Norwegian Foreign
Ministry as a statement of the principles of international law supporting
the Norwegian position. This was done, however, in the course of
negotiations for the establishment of a modus vivendi. By its very nature, a
modus vivendi implies the reservation and preservation of the legal
positions of both Parties to the con-troversy. If nothing had been said, it
would have been necessary to imply an intention of both Parties to admit
nothing and to maintain their legal positions intact. In this case, however,
the negotiations proceeded on the basis of an express stipulation to leave
"the question of principle intact".
In these circumstances, I think that the British Government was justified in
regarding all aspects of the negotiations, including the 1912 Report and the
Note of November 29th, 1913, as covered by the basic reservation. The
omission to make a specific reservation or objection at this stage cannot
possibly be treated as proof of acquiescence in or acceptance of the
Norwegian System.
There is the further point, that from the time of the seizure of the Lord
Roberts, in 1911, until the present the Parties have been in controversy
about the extent of Norwegian waters and about the rights of British ships
in areas which were regarded by the British Government as part of the High
Seas. Parts of the controversy have been settled by the British concessions
with regard to the four-mile limit, the fjords and sunds, and the
recognition of the outer fringe of the "skjærgaard" as the coast line. Apart
from these concessions, the British Government has never admitted the right
to measure territorial waters from long base-lines departing from the line
of the coast or the "skjærgaard", and it has maintained throughout the
contention that the waters must be [p 204] measured from the low-water mark.
The transmission of the 1912 Report was made after the commencement of the
dispute.
The position of the Parties regarding knowledge of the Norwegian claims or
notice of the existence of the Norwegian System may be summed up. Shortly
after the commencement of the dispute, in the correspondence exchanged in
1913 and referred to above, the British Government received some indication
that Norway might be making extensive claims as regards the demarcation of
territorial waters, but no definite information as to the extent of the
claim; and, as I have already indicated, the information was received in
such circumstances that the failure to make immediate protest could not have
been regarded as acquiescence even if the extent of the claim had been
indicated. In 1923-1924 at the time of the Kanuck incident, both the British
Government and the Norwegian Foreign Ministry were in the dark as to the
nature and extent of the claims which are now regarded as being involved in
the Norwegian System. The British Government was informed by the late Sir
Francis Lindley that the Norwegian Government was relying on the
application of the 10-mile rule for the Persfjord. The Norwegian Foreign
Ministry thought that it was relying on the Harbakken-Kavringen closing line
for the fjord, 9.4 marine miles in length. The communication by the
Norwegian Foreign Ministry to the Secretary-General of the League of
Nations, March b disclosed to the world the fact that Norway was asserting
the right to mark out the belt of territorial waters from long straight
base-lines, although even at that late date it was not yet clear that Norway
was asserting the right to use base-lines that departed from the line and
direction of the coast or of the outer fringe of the "skjasrgaard". In the
correspondence arising out of the Lord Weir seizure, there was a marked
change on both sides. Sir Charles Wingfield's Note clearly indicated that
the British Government had by that time learned that Norway was asserting
the right to use long straight base-lines, and that it suspected that the
Norwegian claim might be even more extensive than that which was involved in
the closing line for the Syltefjord then relied on by the Norwegian
authorities. The British Government was requesting definite information as
to the nature and extent of the Norwegian claim. Mr. Esmarch's Note shows
clearly that the Norwegian Foreign Ministry was then aware that much more
extensive claims were in the offing, but that it was still impossible to
give any real information as to the nature and extent of the claims. The
British Memorandum to the Norwegian Government, July 27th, 1933, set forth
in the Counter-Memorial, Annex n, shows that even then the Government was
still waiting for an authoritative statement as to the Norwegian claim. It
is clear, therefore, that the British Government, notwithstanding repeated
requests, was unable to obtain any definite information as to the [p 205]
true nature and character of the Norwegian System prior to the judgment in
the St. Just case, and the publication of the Royal Norwegian Decree of
1935.
In these circumstances, I cannot avoid reaching the conclusion that it has
not been proved that the Norwegian System was made known to the world in
time, and in such a manner that other nations, including the United Kingdom,
knew about it or must be assumed to have had constructive knowledge.
There is perhaps one qualification regarding the foregoing conclusion. It
appears from the record of seizures and warnings to trawlers that Norway, in
1923, began to assert and enforce exclusive rights in the waters in dispute.
There is an isolated instance of warning to a British trawler Caulonia in
1913, at a point outside the Green Line; but no other instance of either
seizure or warning at a point outside of that line before 1923. Between the
years 1923-1949, there were twenty-four seizures and twenty-three warnings
of trawlers at points within the Disputed Areas.
There can therefore be no doubt that Norway, from 1923 on, was vigorously
asserting and enforcing extensive exclusive rights. On the other hand, this
was too late to support a claim to the existence of the Norwegian System as
a doctrine of customary international law binding on the United Kingdom. The
first of the seizures, the Kanuck in 1923, was the subject of diplomatic
nego-tiation. While it would be entirely proper to attribute to the
Government of the United Kingdom knowledge that Norway, during the period
from 1923 to 1933, was asserting very wide claims as regards the extent of
territorial waters, this all took place after the present dispute had come
into being. It was too late to give effect to a special or regional doctrine
of international law binding on the Government of the United Kingdom.
I do not intend to comment on the different sectors of the coast, or to
indicate, in detail, the parts of the Disputed Areas which are open to
objection as not having been delimited in conformity with the principles of
international law. In East Finnmark I consider that the Disputed Areas
between base-points 5 and 12 are open to serious objection, and there I
consider that the Green Line fairly indicates the extent to which the Blue
Line is not in conformity with international law. Between base-points 12
and 35, while there are places where the Blue Line departs from the line and
direction of the outer fringe of the "skjærgaard", the Green Line [p 206] is
unsatisfactory for two reasons: (i) because it needs to be rectified in
accordance with the British alternative submission; and (2; because further
rectification would be necessary to take into account penetrations in the
fringe of the "skjærgaard" which in reality have the characteristics of bays
enclosed by groups of islands.
Between base-points 35 and 48, while the matter is not free from doubt, I am
not inclined to question the Blue Line.
Accordingly, in view of all of the foregoing considerations, I am led to the
conclusion that the delimitation of the fisheries zone fixed by the
Norwegian Royal Decree of July 12th, 1935, is not in conformity with the
rules and principles of international law.
(Signed) J. E. Read. |
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