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Case: Anglo Norwegian Fisheries Case (UK vs Norway)
Year of Decision: 1951. Court: ICJ.
The Court was asked to decide, inter-alia, the validity, under international law, of the methods used to delimit Norway’s territorial sea/ fisheries zone. We would not discuss the technical aspects of the judgment. The judgment contained declarations on customary international law. However, the value of the jurisprudence was diminished because these declarations lacked in-depth discussion.
Background to the case
The United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that customary international law did not allow the length of a baseline drawn across abay to be longer than ten miles. Norway argued that its delimitation method was consistent with general principles of international law.
Formation of customary law
The court consistently referred to positive (1) state practice and (2) lack of objections of other states on that practice as a confirmation of an existing rule of customary international law (see p. 17 and 18). There was no mention of opinio juris in this early judgment.
In the following passage, the court considered that expressed state dissent regarding a particular practice was detrimental to the existence of an alleged general rule. It did not elaborate whether these states adopted a contrary practice because it was claiming an exception to the rule (see the Nicaragua jurisprudence) or because it believed that the said rule did not possess the character of customary law.
“In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.”
Persistent objector rule
The court in its judgment held that even if a customary law rule existed on the ten-mile rule,
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”
In this case, the court appears to support the idea that an existing customary law rule would not apply to a state if it objected to any outside attempts to apply the rule to itself, at the initial stages and in a consistent manner, and if other states did not object to her resistance. In this manner, the Anglo Norwegian fisheries case joined the asylum case (Peru vs Colombia) in articulating what we now call the persistent objector rule.
In the present case, the court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to have acquired the force of international law. Still less would it appear to have any foundation in reality…”
The court held that “Language of this kind can only be construed as the considered expression of a legal conception regarded by the Norwegian Government as compatible with international law”. The court held that Norway had refused to accept the rule as regards to it by 1870.
The court also went on to hold that Norway followed the principles of delimitation that it considers a part of its system in a consistent and uninterrupted manner from 1869 until the time of the dispute. In establishing consistent practice, the court held that “…too much importance need not be attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice.”
After the court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind Norway because of its objections, the court inquired whether the Norwegian system of delimitation, itself, was contrary to international law. To do so, the court referred to state practice once more.
“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than sixty years the United Kingdom Government itself in no way contested it… The Court notes that in respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government refrained from formulating reservations.”
In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was not contrary to international law) but rather it claimed that its practice was in conformity with international law (see page 21).
“In its (Norway’s) view, these rules of international law take into account the diversity of facts and, therefore, concede that the drawing of base-lines must be adapted to the special conditions obtaining in different regions. In its view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does not therefore infringe the general law; it is an adaptation rendered necessary by local conditions. ”
The court held that the fact that this consistent and sufficiently long practice took place without any objection to the practice from other states (until the time of dispute) indicated that states did not consider the Norwegian system to be “contrary to international law”.
“The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement of her system against the United Kingdom. The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a consistent and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law.”
Relationship between international and national law
The court alluded to the relationship between national and international law in delimitation of maritime boundaries. In delimitation cases, states “must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements…” The court would also consider “…certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage.” However, while the act of delimitation can be undertaken by the State, its legal validity depends on international law.
“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. (p. 20)”
T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’, 26 Harvard International Law Journal, 1985, p. 457,
J. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’, 56 BYIL, 1985, p. 1.
“In fact, the two international court of justice cases which appear to support the persistent objector rule both arose in circumstances where the new rule itself was in substantial doubt. Thus, it was significantly easier for the objector to maintain its status. No case is cited for a circumstance in which the objector effectively maintained its status after the rule became well accepted in international law. In fact, it is unlikely that such a status can be maintained din light of the realities of the international legal system. This is certainly the plight that befell the US, The UK and Japan in the law of the sea. Their objections to expanded coastal state jurisdiction were ultimately to no avail, and they have been forced to accede to 12-mile territorial seas and the 200-mile exclusive economic zone. “
Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp. 236 – 239.
“The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At issue was whether Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that CIL did not allow the length of a baseline drawn across a bay to be longer than ten miles. Again, as with the Asylum Case, the primary holding of the case was that the alleged CIL rule did not exist. In the alternative, the court briefly remarked that, had the rule existed, it would not have applied against Norway because Norway had “always opposed any attempt to apply it to the Norwegian coast.”This language is often cited in support of the persistent objector doctrine, but it could just as easily be read to support the Default View of CIL, since there is nothing in this language that suggests that Norway’s opposition must have occurred prior to the establishment of the alleged rule of CIL. The arguments of the parties do not resolve this uncertainty: although the United Kingdom appears to have supported something like the modern persistent objector doctrine, at least for rights historically exercised by a state (while asserting that Norway had not met its requirements),Norway (which prevailed in the case) appears to have supported something closer to the Default View.
The Asylum and Fisheries decisions provide no more than passing and ambiguous support for the doctrine. State practice since those decisions is also relatively unhelpful, since there have been essentially no instances in which states have invoked the doctrine. As Professor Stein reported in a 1985 article, his research had “failed to turn up any case where an author provided even one instance of a state claiming or granting an exemption from a rule on the basis of the persistent objector principle—excepting of course the Asylum and Fisheries cases themselves.”