Anglo Norwegian Fisheries Case , United Kingdom v Norway.
Citation – Order, 1951 I.C.J. 117.
Jurisdiction – ICJ
Facts –
The Court was asked to decide, amongst others, the validity, under international law, of the methods used to delimit Norway’s territorial sea/ fisheries zone.
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 a bay to be longer than ten miles.
Norway argued that its delimitation method was consistent with general principles of international law
ISSUE – Whether the delimitation method was consistent with general principles of international law.
Judgment–
The Court referred to (1) positive State practice and (2) lack of contrary State practice as a confirmation of an existing rule of customary international law .
There was no mention of opinio juris in this early judgment.
the Court considered expressed dissent by States regarding a particular practice to be detrimental to the existence of an alleged general rule. Yet, the Court did not examine further whether these States adopted a contrary practice because, for example, (1) they were claiming an exception to the rule or (2) because they believed that the said rule did not possess the character of customary law.
The Court in its judgment held that even if a customary law rule existed on the aforementioned 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 Norweigian coast.”
In this case, the Court appears to support the idea that an existing customary law rule would not apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages and (3) in a consistent manner.
The Court pointed out that the Norweigian 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 Norweigian Government as compatible with international law”. Thus, the Court held that Norway had refused to accept the rule as regards to it in 1870.
The Court also went on to hold that Norway had followed the principles of delimitation that it considered 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 Norweigian practice
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 the latter’s objections. Next, the Court inquired whether the Norwegian system of delimitation was nevertheless contrary to international law. To do so, the Court relied on state practice once more.
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). It emphasized that its practice – even if it was a deviation from the general practice – was in conformity with international law
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 these States did not consider the Norwegian system to be “contrary to international 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.
