Court of Justice Rejects Jurisdiction
in Fisheries Jurisdiction Case brought by Spain against
By Peter H.F. Bekker
On December 4, 1998, the International
Court of Justice (ICJ) ruled (12-5) that it lacks
jurisdiction to adjudicate the dispute brought
by the Kingdom of Spain against Canada in 1995.
Spain's Application of March 28, 1995, requested
the Court to declare that certain legislation
of Canada (in particular the Coastal Fisheries
Protection Act, as amended in 1994, and implementing
regulations) is not opposable to Spain, insofar
as it claims to exercise jurisdiction over ships
flying a foreign flag on the high seas, outside
Canada's 200-mile Exclusive Economic Zone. The
Application also asked the Court to hold that
the arrest by the Canadian Navy on the high seas,
on March 9, 1995, of a Spanish flag fishing vessel
involving the use of force constituted a violation
of international law for which Canada must make
reparation. The Court, which is the principal
judicial organ of the United Nations entrusted
with settling legal disputes between sovereign
states, consists of 15 judges elected to nine-year
terms by the UN General Assembly and Security
Council, together with two judges ad hoc
appointed especially for the duration of this
case by Spain and Canada.
As the basis of the Court's jurisdiction,
Spain relied on the declarations made by the two
parties accepting the Court's compulsory jurisdiction
under Article 36(2) of the ICJ Statute. That provision,
known as the "Optional Clause," provides that
the states parties to the ICJ Statute (currently
all the 185 UN member states and Nauru and Switzerland)
may at any time file with the UN Secretary-General
declarations stating that they recognize as compulsory,
without special agreement, in relation to any
other state accepting the same obligation, the
Court's jurisdiction in all legal disputes concerning
the interpretation of a treaty, any question of
international law, the existence of any fact which,
if established, would constitute a breach of an
international obligation, or the nature or extent
of the reparation to be made for the breach of
an international obligation.
Canada challenged the Court's jurisdiction,
invoking a reservation contained in its 1994 declaration
excluding from jurisdiction "disputes arising
out of or concerning conservation and management
measures taken by Canada with respect to vessels
fishing in the NAFO Regulatory Area, as defined
in the Convention on Future Multilateral Co-operation
in the Northwest Atlantic Fisheries, 1978, and
the enforcement of such measures."
Spain and Canada each having characterized
the dispute between them differently, the Court
pointed out that it is for itself to determine
on an objective basis the dispute dividing the
parties. In its view, the essence of the dispute
was whether Canada's coastal fisheries protection
legislation and the actions against the Spanish
vessel and crew resulting therefrom, violated
Spain's rights under international law and required
The Court agreed with Canada that
the words of an Optional Clause declaration, including
a reservation contained therein, must be interpreted
in a natural and reasonable way, having due regard
to the intention of the state making the reservation
at the time when it accepted the Court's compulsory
jurisdiction. Such state's intention, in turn,
may be deduced not only from the text of the relevant
clause, but also from the context in which the
clause is to be read, the circumstances of its
preparation, and the purposes intended to be served.
The Court thus stressed that a reservation to
a declaration should be interpreted in a manner
compatible with the effect sought by the reserving
state; reservations operate to define the parameters
of a state's acceptance of the Court's compulsory
jurisdiction. The Court rejected Spain's argument
that Canada's reservation should be interpreted
in accordance with the legality under international
law of the matters sought to be exempted from
the Court's jurisdiction, which matters in Spain's
view violated international law by involving the
use of force on the high seas against a Spanish
vessel. The Court explained that there is a fundamental
distinction between a state's acceptance of the
Court's jurisdiction, requiring mutual consent,
and the compatibility of particular acts with
international law, which is a question that can
only be addressed when the Court deals with the
merits after having established its jurisdiction.
In offering its interpretation of
Canada's reservation, the Court considered that
the reservation's purpose was to prevent it from
exercising jurisdiction over matters that might
arise with regard to the international legality
of the Canadian legislation and its implementation.
The Court addressed what it saw as Spain's four
main arguments in favor of jurisdiction: (1) the
dispute brought by Spain falls outside the terms
of the Canadian reservation by reason of its subject-matter;
(2) the Canadian legislation cannot, in international
law, constitute "conservation and management measures;"
(3) the reservation covers only "vessels" that
are stateless or flying a flag of convenience;
and (4) the pursuit, boarding and seizure of the
Spanish ship cannot be regarded in international
law as the enforcement of conservation and management
First, the Court found that the
words "disputes arising out of or concerning"
contained in Canada's reservation exclude not
only disputes whose immediate "subject-matter"
is the measures in question and their enforcement,
but also those "concerning" such measures and
those having their "origin" in those matters.
The Court noted that it had to determine whether
the dispute had as its subject-matter the measures
mentioned in the reservation or their enforcement,
or both, or concerned those measures or arose
out of them. In order to do this, it had to determine
first the meaning of "conservation and management
measures" and "enforcement of such measures" in
the context of the reservation.
Thus, in reply to Spain's second
argument, the Court pointed out that "measure"
covers any act, step or proceeding (including
a law and its implementing regulations) and imposes
no limit on the material content or on the aim
pursued thereby (in this case, the conservation
and management of fish). In the Court's view,
it is generally accepted in international law
and the practice of states that, in order for
a measure to be characterized as a "conservation
and management measure," it is sufficient that
its purpose is to conserve and manage living resources
(in this case, Greenland halibut) and that, to
this end, it satisfies various technical requirements.
Any other interpretation would deprive the reservation
of the effect Canada intended to give to it. Thus,
the Court was satisfied that the measures taken
by Canada constituted "conservation and management
Third, the Court observed that the
Canadian reservation refers to "vessels fishing,"
i.e., all vessels fishing in the area in question,
without exception. In the Court's view, Spain's
interpretation, according to which the reservation
applied only to stateless vessels or those flying
a flag of convenience, runs contrary to a clear
text expressing Canada's intention.
Finally, as regards the meaning and scope of the
phrase "and the enforcement of such measures,"
the Court found that the provisions of the Canadian
legislation authorizing the use of force fall
within the general category familiar in connection
with enforcement of fisheries conservation measures.
In the majority's view, boarding, inspection,
arrest and minimum use of force are all contained
within the concept of enforcement of conservation
and management measures according to a natural
and reasonable interpretation of this concept.
On this basis, the Court concluded
that the dispute submitted to it by Spain constitutes
a dispute "arising out of" and "concerning" "conservation
and management measures taken by Canada with respect
to vessels fishing in the NAFO Regulatory Area"
and "the enforcement of such measures." Consequently,
the Court concluded that this dispute comes within
the terms of the Canadian reservation and found,
by 12 votes to 5, that it lacks jurisdiction to
adjudicate upon the dispute.
This is the first time since the
judgment in Aegean Sea Continental Shelf (Greece
v. Turkey) rendered in 1978 that the Court
has found, at a preliminary stage, that it is
without jurisdiction to entertain an application.
The Court's refusal to entertain Portugal's Application
in the case concerning East Timor (Portugal
v. Australia) in 1995, although technically
a dismissal, was based on a finding at the merits
stage that the Court could not exercise the jurisdiction
conferred upon it to adjudicate the dispute referred
by Portugal in the absence of Indonesia as a necessary
Author: Peter H.F. Bekker, Ph.D. McDermott, Will
& Emery, New York, NY
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