International Court of Justice Rejects Jurisdiction in Fisheries Jurisdiction Case brought by Spain against Canada

Pieter H.F. Bekker
December 11, 1998
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 reparation. 
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 measures. 
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 measures." 
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 third party. 
The full text of the decision may be found on the Internet at:
Peter H.F. Bekker, Ph.D. McDermott, Will & Emery, New York, NY