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The U.K./Icelandic Fisheries Case

THE judgment of the International Court of Justice on the Merits of the Fisheries Jurisdiction Case ([1974] I.C.J.Rep., judgment of 25 July 1974) was given, overwhelmingly by ten votes to four, in favour of the U.K. Indeed, not even the minority of four were prepared to support the Icelandic unilateral assertion of an exclusive 50-mile fishery zone; their dissent lay with the content of the court's judgment rather than with its conclusion. The United Kingdom made four submissions. First, that the Icelandic claim to a 50-mile exclusive fisheries jurisdiction was invalid erga omnes. Second, that it was invalid against the U.K. Third, that Iceland could not therefore exclude U.K. fishing vessels from the areas of the High Seas beyond the 12-mile limit agreed in the Exchange of Notes of 1961. And, fourth, that the two countries were under a duty to examine together the evidence of a need for conservation of fish stocks and, if proved, to establish a conservation rdgime which would recognise Iceland's preferential position as a coastal state dependent on fisheries and at the same time safeguard the traditional interest and acquired rights of the U.K. and any other states involved. The majority of the court accepted the argument that, in the decade of 1960-70, and following the failure to reach agreement in the 1958 and 1960 Law of the Sea Conferences, two concepts crystallised as customary law: the notion of an exclusive 12-mile fishery zone and the preferential rights of the coastal state. As to the latter, the court was emphatic that it might imply priority but could not justify exclusive or monopolistic claims: "the concept of preferential rights is not compatible with the exclusion of all fishing activities of other States " (para. 62). Given the long-established U.K. fishing practice, the court therefore concluded that an exclusive claim was " not opposable " to the U.K. and was an infringement of the principle of freedom of the High Seas and the rights of the U.K. under the 1961 Exchange of Notes. Nor did the court believe that a " phase-out" was a sufficient recognition of the U.K.'s rights (para. 69). The phase-out principle is therefore to be restricted to areas of a legitimate exclusive claim, and does not extend to the High Seas. The court finally accepted that the parties were under an obligation to negotiate an equitable solution, taking into account Iceland's