B, Fisheries Case Norway and the United Kingdom Straight baselines; bays Intemational Court of Justice (ICJ) Date of Judgment of 18 December 1951 Published | LCi: Reports of udgments. Advisory Opinions and Orders, 1951, in: pp. 116-206 International Law Reports, Vol. 18, 1957, pp. 86-144 Selected Evensen, J, "The Anglo-Norwegian Fisheries Case and its Legal commenta- | Consequences”, 46 American Journal of Intemational Law, (1952), ries: pp. 609-630 Johnson, D.H.N., “The Anglo-Norwegian Fisheries Case”, | International and Comparative Law Quarterly, (1952), pp. 145-180 Waldock, C.H.M., “The Anglo-Norwegian Fisheries Case”, 28 British Year Book of Intemational Law (1951), pp. 114-171 Marston, G.,“Low-Tide Elevations and Straight Baselines”, 46 British ‘Year Book of Intemational Law, (1972-73), pp. 405-423 1. Facts 27. Since 1911 British twawlers had been seized and condemned for violating measures taken by ‘the Norwegian Government specifying the limits within which fishing was prohibited to foreigners, In 1935, a Decree was adopted establishing the lines of delimitation of the Norwegian fisheries zone. 28. On 28 September 1949, the Government of the United Kingdom filed with the Registry of ‘the ICJ an application instituting proceedings against Norway. The subject of the proceedings ‘was the validity, under intemational law, of the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12 July 1935. 29. The application referred to the declarations by which the United Kingdom and Norway had ‘accepted the compulsory jurisdiction of the ICI in accordance with Article 36 (2) of its Statute. 2. Issues (@) Questions before the Court (@) To declare the principles of international law applicable in defining the baselines by reference to which the Norwegian Government was entitled to delimit a fisheries zone, extending seaward to 4 nautical miles from those lines and exclusively reseeved for its own nationals, and to define the said baselines in the light of the arguments of the Parties in order to avoid further legal differences; andGi) To award damages to the Government of the United Kingdom in respect of all interferences by the Norwegian authorities with British fishing vessels outside the fisheries zone, which, in accordance with the IC1's decision, the Norwegian Government may be entitled to reserve for its nationals. (b) Arguments presented by the Parties (i) The United Kingdom argued: ‘+ That Nonway could draw straight lines only across bays; ‘© That straight lines, regardless of their length, could be used subject to the following conditions set out in point 5 of its Conclusion; “Norway is entitled to claim as Norwegian intemal waters, on historic grounds, all fjords and sunds which fall within the conception of a bay as defined in international law... whether the proper closing line of the indentation is more or less than 10-nautical miles long’ (Basing itself by analogy on the so-called rule of 10:miles relating to bays, the United Kingdom maintained that the length of the baselines drawn across the waters Iying between the various formations of the skjaerpaard must not exceed 10 miles.); ‘© That certain Lines did not follow the general direction of the coast, or did not follow it sufficiently closely, or that they did not respect the natural connection existing between certain sea areas and the land formations separating or surrounding them; and ‘© That the Norwegian system of delimitation was unknown to the United Kingdom ‘and that the system therefore lacked the essential notoriety to provide the basis of an historic title enforceable upon, or opposable to, the United Kingdom. Gi) Norway argued: ‘+ That the baselines had to be drawn in such a way as to respect the general direction of the coast and in a reasonable manner. 3. Reasoning of the Court 30. It was agreed from the outset by both Parties and by the Court that Norway had the right to ‘claim a 4-mile belt of territorial sea, that the fords and sunds along the coastline, which have the character ofa bay or of legal straits, should be considered Norwegian for historical reasons, and ‘that the territorial sea should be measured from the line of the low-water mark, 31. The Court found itself obliged to decide whether the relevant low-water mark was that of the ‘mainland or of the skjaergaard, and concluded that it was the outer line of the skjaergaard that must be taken into account in delimiting the belt of Norwegian territorial waters. 32, The Court then considered the three methods that had been contemplated to effect the application of the low-water mark. The Court rejected the method of the “traeé paralléle”, “consists of drawing the outer limit of the belt of territorial waters by following the coast in alt its sinuosities", as unsuitable for so rugged a coast, Furthermore, that method was abandoned in ‘the written reply and later in the oral argument by the United Kingdom and, consequently, no‘longer relevant to the case. The Court also declined to apply the “courbe tangente” (the "ares of ceireles" method) inasmuch as it was concededly not obligatory by law. Thus, the instant ease ‘required the application of'a third delimitation method according to which the belt of the territorial waters must follaw the general direction of the coast. Such a method consisted of selecting appropriate points on the low-water mark and drawing straight lines between them. The ‘Court found that the method had already been applied by a number of States without giving rise ‘to any protests by other States. 33, The Court was unable to share the United Kingdom view according to which Norway could ‘draw straight lines only across bays. Ifthe belt of the territorial waters must follow the outer line ‘of the skjaergaard and if the method of straight baselines must be admitted in certain cases, there ‘was no valid reason therefore to draw straight lines only acrass bays, and not draw them also Detween islands, islets and rocks, across the sea areas separating them, even when such areas did snot fall within the concept of a bay. 34, The Court further considered that the 10-mile rule relating to bays had not acquired the authority of a general rule of international law. Neither State practice nor judicial decisions have been uniform and consistent in this respect. Certain States had adopted the 10-mile rule both in. ‘their national laws and in their treaties and conventions. And, although certain arbitral decisions ‘had applied the rule as between those States, other States had adopted different limits. Additionally, the 10-mile rule appeared to be inapplicable to Norway inasmuch as it had always ‘opposed any attempt to apply it to its coast. 35, However, the Court held that the delimitation of sea areas had always had an international aspect and could not be dependent merely upon the will ofthe coastal State as expressed in its ‘municipal law. Although necessarily a unilateral act, the validity of delimitation of sea areas with regard to other States depended upon international law. The Court considered that in drawing straight baselines, the coastal State had to follow the general direction of the coast. Moreover, the telationship between certain sea areas and the mainland as well as the economic interests in a ‘certain region had to be considered. 36, The Court rejected the British argument, which was based by analogy on the so-called 10-mile rule relating to bays, that the length of the baselines should not exceed 10 miles. 37. On the basis of the evidence presented, the Court established the existence and the ‘constituent elements of the Norwegian system of delimitation and found that the system had been applied consistently and uninterruptedly from. 1869 until the time when the dispute arose. From, ‘the standpoint of international law, it held that the application of the Norwegian system had ‘encountered no opposition from foreign States. 38, The last question with which the Court was confronted was whether the Decree of 12 July 1935 conformed in its application to the Norwegian delimitation method or whether, at ‘certain points, it departed from it to any considerable extent. The Court found that the lines drawn were in accordance with the traditional Norwegian system and, moreover, pointed out that ‘they were a result of a careful study initiated by the Norwegian authorities as far back as 1911 ‘The United Kingdom contended that certain of the baselines adopted by the Decree were ‘contrary to the principles stated by the Court as governing any delimitation of the territorial sea ‘is criticism was particularly directed against 2 sectors: the sector of Svaeholthavet and that of ‘Lopphavet. As to the former, the Court considered that the basin had the character of a bay. As to ‘he latter, the Court remarked that the rule in question was devoid of any mathematical precision‘and that, except in case of manifest abuse, one could not confine oneself to examining one sector of the coast alone. "Even if it were considered that in the sector under review, the deviation was 100 pronounced, it must be pointed out that the Norwegian Government has relied upon an historie ttle since the end of the Seventeenth Century”. In addition, the Court considered that “waditional rights reserved to the inhabitants of the Kingdom over fishing grounds ... founded on ‘the vital needs of the population and attested by very ancient and peaceful usage, may ‘egitimately 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". 4. Decision 39, The Judgment was rendered on 18 December 1951: (@) By 10-votes to 2 the Court held that "the method employed for the delimitation of ‘the fisheries zone by the Royal Norwegian Decree of July 12" 1935 is not contrary to ‘international law", (b) By 8 votes to 4 the Court held that "the base-Lines fixed by the said Decree in application of this method are not contrary to international law”. 5. Declaration, Separate Opinions, Dissenting Opinions (@) Declaration 40, Judge Hackworth declared that he concurred with the operative part of the judgment since ‘he considered that the Norwegian Government had proved the existence of an historic ttle o the disputed areas of water. (b) Separate Opinions 41. dudge Alvarez relied on the evolving principles of the law of nations applicable to the law of ‘the sea, inter alia: {@) States have the right to modify the extent of their territorial seas, (b) Any State direetly concerned may object to another State"s decision as to the ‘extent of its territorial sea: (©) The international status of bays and straits must be determined by the coastal ‘States directly concemed with due regard to the general interest; and (@) __ Historic rights and the concept of prescription in international law: prescription, will have effect if the right claimed to be based thereon is well established, has been ‘uninterruptedly enjoyed and complies with conditions such as that it dees not infringe on the sights aequired by other States, does not harm general interests and does not constitute an abus de droit. 42. The conclusion reached by Judge Alvarez acknowledges Norway's right to delimit the extent ‘of its territorial sea and to determine the method for calculating this extent. Consequently, ‘Norway is allowed to prohibit fishing by foreigners within the specified limit concerned.INTERNET VERSION 10 43, Judge Hsu Mo’s opinion diverged from the Court’s as regards the conformity with the principles of international law of straight baselines as fixed by the Decree of 1935. 44, Judge Hsu Mo allowed the possibility, in certain circumstances, of deviating from the general sule that says that the belt of territorial sea should be measured from the Tine of the coast at low ‘ide. Norway's special geographical and historical conditions - two circumstances to be taken ‘into consideration - could justify her practice of using the method of delimiting the belt of territorial sea by drawing straight lines between two points. Therefore, the question of the validity of the baselines as drawn by Norway should be considered on the basis of the degree of deviation from the general rule. 45. Two instances were mentioned in which the baseline could not be considered to have been justifiably drawn: the baselines drawn across Sveerholthavet and Lopphavet. The reasons ‘underlying the assumption are the non-conformity of those baselines with the general direction of the coast and the lack of substantial proof establishing an historic title to the waters in question. (©) Dissenting Opinions 46, Judge Sir Arnold McNair’s analysis of the case rested on a few rules of the law of ‘international waters. Though exceptions existed (e.g., "bays”), the normal procedure to caloulate the extent of territorial waters is from the land, the baseline of territorial waters being a line ‘which follows the coastline along low-water mark, and not a series of lines connecting the ‘outermost points of the mainland and islands, 47. Judge McNair rejected the arguments upon which Norway has based its Decree, including: (a) The protection of Norway’s economic and other social interests; (&) The exceptional character of Norway's coast; (©) That the United Kingdom should not be precluded from objec ‘Norwegian system embodied in the Decree because of previous acquiescence in the system; and (@)__Anhistoric title allowing a State to acquire waters that would otherwise have the status of high seas. 48, Judge McNair concluded therefore that the Decree of 1935 is incompatible with international Jaw. 49, Judge Read was unable to concur with parts of the judgment that related to certain sections ‘of the Norwegian coast. ‘50, The judge rejected the justification invoked by Norway for enlarging her maritime domain and seizing and condemning foreign ships: (@) The sovereignty of the coastal State is not a basis for Norway’s claim to have the right to measure the four-mile belt from straight baselines; (be) Customary intemational law does not recognize the rule according to which the belt of territorial waters ofa coastal State is to be measured from long baselines that depart from. ‘the line of the coast; and (©) The Norwegian system cannot be legitimated by an historic title.