Author: Ruwanthika Gunaratne

Anglo Norwegian Fisheries Case (Summary on Customary International Law)

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

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.

 

Initial objection

In the present case, the court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to have acquired the force of international law. Still less would it appear to have any foundation in reality…”

The court held that “Language of this kind can only be construed as the considered expression of a legal conception regarded by the Norwegian Government as compatible with international law”. The court held that Norway had refused to accept the rule as regards to it by 1870.

 

Sustained objection

The court also went on to hold that Norway followed the principles of delimitation that it considers a part of its system in a consistent and uninterrupted manner from 1869 until the time of the dispute. In establishing consistent practice, the court held that “…too much importance need not be attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice.”

 

No objection

After the court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind Norway because of its objections, the court inquired whether the Norwegian system of delimitation, itself, was contrary to international law. To do so, the court referred to state practice once more.

“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than sixty years the United Kingdom Government itself in no way contested it… The Court notes that in respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government refrained from formulating reservations.”

 

Contrary practice

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.

However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was not contrary to international law) but rather it claimed that its practice was in conformity with international law (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. ”

 

Conclusion

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)”

 

Further reading:

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.”

 

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

 

 

Simma on the Lotus Dictum: An Outdated Principle

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

In the Kosovo Advisory Opinion the ICJ had to decide if the unilateral declaration of Kosovo of February 2008 was ‘in accordance with’ international law. The Court inquired and concluded that the applicable international law did not prohibit an unilateral declaration of independence. Based exclusively on this finding of a lack of prohibition, the Court decided that ‘the adoption of the declaration of independence  did not… violate any applicable rule of international law’.

Judge Simma in his declaration on the Kosovo Advisory Opinion disagreed, inter alia, with  Court’s methodology in arriving at this conclusion. He imputed it to the principle established in the Lotus case: that which is not prohibited is permitted under international law.

Simma questioned the wisdom of the ICJ’s continued reliance of the dictum of the Lotus case that “…restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order”. Simma argued that this strict binary approach of ‘what is not prohibited is permitted’ stems from an out dated, 19th century positivist approach that is excessively differential towards State consent. Simma criticised that in determining if the unilateral declaration was in accordance with applicable international law, the court:

(1) Equated an absence of a prohibition with the existence of a permissive rule – it held that what is not prohibited is ipso facto permitted.

(2) Did not search for permissive rules – i.e. the court did not assess if unilateral declarations of independence could be tolerated or permitted under international law in certain circumstances. He said:

“The relevance of self-determination and/or remedial secession remains an important question in terms of resolving the broader dispute in Kosovo and in comprehensively addressing all aspects of the accordance with international law of the declaration of independence…In this light, I believe that the General Assembly’s request deserves a more comprehensive answer, assessing both permissive and prohibitive rules of international law..… To treat these questions more extensively would have demonstrated the Court’s awareness of the present architecture of international law (paras 5 -7).”

(3) Did not consider the possibility that international law can be deliberately neutral or silent on the international lawfulness of certain acts. Simma argued that the court did not consider the possibility that an act might be ‘tolerated’. Tolerated does not mean that the act is ‘legal’, but rather that it is ‘not illegal’. For the court, argued Simma, “…everything which is not expressly prohibited carries with it the same color of legality; it ignores the possible degrees of non-prohibition, ranging from ‘tolerated’ to ‘permissible’ to ‘desirable’…” Simma did not give examples of areas of neutrality of international law. He criticised the Court’s refusal to do so as follows:

“In this sense, I am concerned that the narrowness of the Court’s approach might constitute a weakness, going forward, in its ability to deal with the great shades of nuance that permeate international law. Furthermore, that the international legal order might be consciously silent or neutral on a specific fact or act has nothing to do with non liquet, which concerns a judicial institution being unable to pronounce itself on a point of law because it concludes that the law is not clear. The neutrality of international law on a certain point simply suggests that there are areas where international law has not yet come to regulate, or indeed, will never come to regulate. There would be no wider conceptual problem relating to the coherence of the international legal order (para 9).”

 

There would not be a summary of the Kosovo Advisory Opinion on this blog because this is accessible on the web. You may wish to consult the following:

An Analysis of the ICJ Advisory Opinion on Kosovo’s Unilateral Declaration of Independence (recommended)

A Brief Summary of the Advisory Opinion of 22 June 2010 on the Kosovo Case

The ICJ’s Advisory Opinion on Kosovo

Links to Articles on the Advisory Opinion on the Hague Justice Portal

 

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.