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Cod Wars - 1961

In 1961 Iceland made a treaty with the British and German governments where the United Kingdom and Germany recognized Iceland’s 12-mile limit. Before the expiry of the treaty in 1972, Iceland announced the extension of its fisheries jurisdiction to 50 miles. Both the United Kingdom and Germany protested the declaration and sought a decision from the International Court of Justice that Iceland’s action had no foundation in international law.

D.P. O’Connell in his book International Law of the Sea describes this case in a clear and concise fashion. The International Court of Justice in 1974 began its analysis with a passage from the Anglo-Norwegian Fisheries case of 1951 where the court suggested that the coastal state could not set ocean boundaries through its national law alone. The court also pointed to the references in the Geneva Convention on the High Seas, which included fishing among the freedoms of the sea. The freedoms of the sea, however, were conditional and not absolute. All nations bear the duty to have reasonable regard to other states’ interest when they exercised these freedoms. Fishing, therefore, was not an absolute right. The International Court of Justice found that two new ideas had become part of customary international law since the Geneva Convention on the High Seas in 1958. Coastal states, first of all, were entitled to declare fishing zones up to the 12-mile limit. The second principle was coastal states had a preferential right to fish in waters adjacent to the 12-mile limit. The court found that Iceland had the exclusive right to fish within the 12-mile limit and a preferential right outside of the 12-mile limit. The court recognized the historic rights of other distant-water fishing nations particularly in light of those nations economic dependence on those fishing grounds. The rights of distant-water nations, however, were also not absolute. Those nations had to recognize the special dependences of the coastal state on the fisheries adjacent to its territory.

The court encouraged the resolution of dispute through negotiations. While these appear to be the general principles in the decision, five of the ten judges making up the majority of the court issued a separate joint opinion. All of these judges came from countries claiming jurisdiction beyond 12 miles. They specifically confined the decision to the special circumstances and characteristics of the case. They did not agree with the main British submission that international law prohibited states from declaring exclusive fishing jurisdiction beyond 12 miles of their base-lines. At that time, the court felt that no customary international law had evolved either one way or the other. Submitting a separate opinion within the majority judgment is a highly unusual step, and in this case led to considerable confusion. O’Connell suggests that the separate opinion by the five judges favours the validity of unilateral extensions of jurisdiction where no historic fishing rights exist for distant-water fishing nations. He used the image that the Fisheries Jurisdiction Case promoted a kaleidoscope of laws rather than a general law of the sea.

In the historical development of the idea of an exclusive fishing zone, the Icelandic case provides a general foundation for the development of the idea of an exclusive economic zone. Around the time of the hearing of the Fisheries Jurisdiction Case many nations claimed 12-mile adjacent fishing zones, but these claims soon expanded to the 200-mile exclusive fishing zone we regard to be the general standard today.

Iceland, however, played an important role in the development of the concept and they are keenly aware of that contribution even at the present time almost 30 years after the International Court of Justice decided the case in 1974.

Original article by John Joy,
Honorary Consul in Newfoundland for the Country of Iceland

See also: United Nations web site Oceans & Laws of the Sea

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