Case Note On ICJ Judgement In Fisheries Jurisdiction (UK Vs Iceland)

Author: LawSphereX

Category: Property & Real Estate

Published: 2026-08-23T18:44:08.546Z

Updated: 2026-08-30T07:05:14.032Z

CASE NOTE ON ICJ JUDGEMENT IN FISHERIES

JURISDICTION (UK VS ICELAND) J. Gayathri, School of Excellence in Law, TNDALU This case discusses the disputes between the United Kingdom and Iceland and analyses how Iceland, a micro nation won 4 disputes against the UK, a great power in the world. HISTORY The history of the case begins with the Proto Cod War which extended from 1952 to 56, where Iceland, in 1952 had unilaterally extended the fisheries jurisdiction from 3 to 4 nautical miles. The British had opposed the extension of the jurisdiction but did not deploy the Royal Navy. Iceland, in return, threatened to withdraw from NATO and expel US forces from Iceland unless the extension of the fisheries jurisdiction was accepted. The UK complied.

The threat of withdrawal from NATO was significant as Iceland’s location makes it a valuable partner for other countries in monitoring and responding to security threats in the North Atlantic and Iceland being a non-military country, has the presence of military troops of other NATO countries including USA, for peacekeeping of the region. 1 The First Cod War extended from 1958 to 61, when Iceland unilaterally extended the fisheries' jurisdiction from 4 to 12 nautical miles. But this time, the UK employed the British Royal Navy and imposed economic sanctions on Iceland, who once again used the threat of withdrawal from NATO and expulsion of US troops. 2. This constituted a significant historical moment as this served as the only time when one NATO nation deployed military troops to threaten another nation.

The war came to an end through a compromissory treaty where the UK, once again agreed to the extension but this time they drew up an Exchange of Notes which required multiple negotiations between the countries and acquired the characteristic of a treaty or convention. The crux of the convention was that the UK would accept the fisheries jurisdiction of Iceland for up to 12 nautical miles and had acquired an assurance from Iceland that the

1 https://defence-industry.eu/iceland-unique-among-nato-allies/ (Last visited 17 Dec. 2024)

2 Sverrir Steinsson, The Cod Wars- a re-analysis

https://www. researchgate. net/publication/299372749_The_Cod_Wars_a_re-analysis fisheries jurisdiction would not be further extended and that any disputes regarding the fisheries jurisdiction shall be referred to the International Court of Justice by either of the parties. THE PRESENT CASE The present case before the ICJ was filed by the UK due to Iceland unilaterally extending its fisheries jurisdiction from 12 nautical miles to 50 nautical miles from the baselines and terminating the Exchange of Notes agreement drawn between the two countries on the grounds of change of circumstances. As the agreement was terminated, Iceland refused to confer jurisdiction on the court and refused to appoint an agent, submit a memorial, or place any pleadings before the Court.

The UK had prayed before the Court to adjudge and declare that the unilateral extension of jurisdiction by Iceland had no foundation in international law and that the Exchange of Notes constituted a valid agreement and the court had jurisdiction to hear the case under Article 36(1) of the Statute of the Court3. The UK had also prayed that the termination of the Exchange of Notes by Iceland so as to oust the jurisdiction of this Court has no legal effect and by initiating the present proceedings, the court obtains jurisdiction to hear the matter. The only resemblance to pleadings placed before the Court by Iceland was a letter sent by the Ministry of Foreign Affairs of Iceland which was taken into consideration by the Court.

The letter stated that after the termination of the Exchange of Notes, the court no longer has jurisdiction over the matter, and that the extension of jurisdiction was for the welfare of its people. It also stated that this extension would not confer jurisdiction on the Court. The Court has examined the question of jurisdiction proprio motu4 as per the provisions of Article 53 of the Statute of the Court. Article 53 reads as follows:

1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the

other party may call upon the Court to decide in favour of its claim.

3 Article 36 of the Statute of the Court

“The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”

4 (Latin word which means ‘by one’s own initiative’)

2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance

with Articles 36 and 37, but also that the claim is well founded in fact and law5. This is similar to the procedure of obtaining an ex-parte judgement in the court. Iceland has also violated Article 62 para 2 of the Rules of the Court which stated that if the state has an objection of jurisdiction, they should ‘set out the facts and law upon which the objection is based’. Iceland, in the Resolution of Althing, had declared that Iceland should have the rights to the entire Continental Shelf as per the Law of 1948, regarding the Scientific Conservation of the Continental Shelf. Althing is a unicameral legislature of Iceland (Law No.

44 of April 5 1948), concerning the Scientific Conservation of the Continental Shelf Fisheries, where it was stated that an explicitly bounded conservation zone must be established within the Continental Shelf, and all the fisheries would come within the control of Iceland6. And that the expression of ‘extension of fisheries jurisdiction’ in the compromissory clause should be read in context with the Althing Resolution. The crux of the compromissory clause was that the UK would recognize 12 nautical miles as the fisheries jurisdiction of Iceland and agreed to a 3-year transitional period where British boats would fish at the tail end of the 12 nautical mile mark and Iceland on its part, agreed to send a six-month notice regarding an extension and that if any dispute arises in the extension, the matter shall be referred to the ICJ by either of the parties.

Why was the UK’s recognition of Iceland’s fisheries zone important? This was due to the rules of Customary international laws which state that continuous state practice along with general acquiescence 7forms part of customary international law. This is well-defined in the case of the Anglo-Norwegian Fisheries case where it was held by the ICJ that since Norway had used straight baselines for many years without any objections from the UK, it is said to have become Customary International Law. 8

5 ICJ Statute Chapter III, https://www.icj-cij.org/statute#CHAPTER_III

6 Law no. 44 Laws Concerning the scientific conservation of the continental shelf fisheries

https://faolex.fao.org/docs/pdf/ice40717.pdf

7 Reluctant acceptance of something without protest

8 Summary of Judgement, https://icj-cij.org/sites/default/files/case-related/5/1811.pdf

The main question of law to be dealt with in this case is whether the dispute falls within the grasp of the compromissory clause and whether the court has jurisdiction to hear the case. The court had delved into the negotiations that took place before the framing of the Exchange of Notes and had discovered that Iceland had previously wanted to resolve the disputes through arbitration, but upon the insistence of the UK, had agreed to resolve the dispute through ICJ and the same was confirmed by a letter. Also, the UK wanted to include a phrase ‘at the request of either parties’ at the end, to the effect that either of the parties may unilaterally approach the ICJ which Iceland first opposed but they finally agreed to it and the compromissory clause was added.

Also, the UK insisted that the Exchange of Notes be recognised as an agreement so that the compromissory clause would bind both parties. Iceland had initially protested but eventually agreed and the agreement was made and was registered with the Secretariat of the UN.

The agreement was registered, as under Article 102 of the United Nations Charter9, it is stated that only the agreements that are registered can be handled by the ICJ, when a dispute regarding its implementation arises. The court concluded that, provided with the history of negotiation read with the context of Exchange Notes, the Court had jurisdiction and it is clear that the parties intended to provide a sine qua non 10right to the UK and not a severable condition of the agreement, the condition being the right to approach the court in case of dispute of the extension of fisheries jurisdiction. The Court then proceeded to consider Iceland’s pleadings, which were a letter sent by the Ministry of Foreign Affairs, for consideration.

The letter stated that during the time of the agreement, they were put in a difficult condition due to the pressure imposed upon them by the British Royal Navy. This was considered to be a contention of veiled duress and as per the Charter of the United Nation and Article 52 of the Vienna Convention11, an agreement made

9 Article 102 of UN Charter

1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations. 10Latin word which means “without which not”. It means essential or indisputable

11 Article 52 of the Vienna Convention (Coercion of a State by threat or use of force)

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. under duress is void ab initio. But a claim of this serious nature was not backed up by any evidence and taking into consideration the negotiations that took place before the agreement, it was seen that both the countries were on equal footing and there was a mutual negotiation between the states. The next contention put forth in the letter was that an undertaking for judicial settlement in the agreement was not of a permanent nature. The court observed that the compromissory clause in the Exchange on Notes did not have a specific duration of invocation of the right, but involved an inherent time factor when read within the context of the Exchange of Notes.

The inherent time factor mentioned above is the time taken for implementation of the Althing Resolution, which is an express provision in the Exchange of Notes. There was also no time period prescribed as to when Iceland would implement the Althing Resolution. Thus, the court concluded that the time period for claiming the right to approach the court under the compromissory clause would extend up to the date of implementation of the Althing Resolution. The reason behind taking up the stance above is due to the stance taken by certain authorities, which states that “Treaties of judicial settlement and declaration of acceptance of compulsory jurisdiction of the court are by nature subject to denunciation in the absence of provisions of their duration or termination. ”.

This could be said, to be derived from the principle enshrined in Article 56(1) of the Vienna Convention on the Law of Treaties12. But they have not abided by the principle provided under clause 2 of the same article, which states that a 12-month notice is to be issued in case of denunciation of the treaty. The court also observed that the Exchange of Notes involved a dispute that was anticipated by the parties and that the invocation of the Court’s jurisdiction was postponed till the happening of the dispute, which was clearly framed in the agreement. Thus, the invocation of the jurisdiction of the court would be considered a suspensive condition. A suspensive condition is an event until which the creation of the obligation is suspended. Upon fulfilment of the

12 Article 56(1)

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1. condition, the obligation takes effect. It has no retroactive effect, unless the parties otherwise agree13 Thus, the court concluded that the view above regarding denunciation of compulsory jurisdiction of the court would apply to cases when there is a general obligation to submit to judicial settlement and involves an uncertain future dispute.

But this is not the case in the Exchange of Notes as it involves a definite compromissory clause and the dispute, due to which the jurisdiction of the court can be invoked, is explicitly mentioned in the agreement. The next and most significant claim put forth by Iceland was that the treaty was terminated due to “Change in circumstances” with respect to fishing and fisheries techniques. Both countries put forth their arguments regarding whether there has been a change in fishing techniques or not where Iceland, in the Resolution of Althing had stated that due to the changing circumstances, the fisheries limits are no longer applicable and, in the letter, sent by the Foreign Minister, it was stated that there has been an increased exploitation of fishes due to developments in the fishing techniques and emphasized the high interdependence of country on fishing.

The statement can be confirmed as 7,500 workmen or 3. 5% of the total workforce are directly involved in the fisheries business, and the export production of marine products amounted to $220 billion, accounting for 43% of the value of export goods, placing Iceland in 18th place among the leading fishing nations14. The UK had contended that the changes in fishing techniques had not affected Iceland’s water and that there was no vital change. The court held it as a question of fact and did not deal with the fact in detail, but stated that the fact has been established in the Exchange of Notes and also in the contention of the UK.

Instead, the court dealt with the next part of the contention that there has been a change in circumstance in the general trend of development of international law whereby many states have continued to recognize the 12-mile zone and it was on the path to becoming a general principle of international law. The 12-mile principle was later enshrined in Art 3 of the 1982 Convention which set the breadth of the territorial sea up to a limit not exceeding 12 nautical miles from the baseline. The claim put forth was that the agreement was bilateral and if the 12 13Professor Bénédicte Fauvarque-Cosson Université Panthéon-Assas Paris II , Draft Charter on Conditional Obligations https://www. unidroit. org/english/documents/2008/study50/wp/s-50-wp-16-e. pdf 14 Business Iceland, https://www. responsiblefisheries. is/media/1/icelandic-fisheries-press-kit-mai-2021enska.

pdf nautical mile becomes the general rule, it would be so that Iceland would pay the price for the agreement and that it would be a failure of consideration which would relieve Iceland from its obligations in the treaty. The court first dealt with the intentions of Iceland by stating that Iceland’s intention at the time of signing the agreement could be immediate recognition of the fisheries jurisdiction, but now that their interest is no more because more states have started to recognize the 12-mile rule does not relieve Iceland from its obligation in the compromissory clause to be bound by the court’s jurisdiction as this cannot be a ground to repudiate those parts of the agreement that remain unchanged.

The court concluded the issue by stating that when an agreement is partly executed and part executory, the party who had obtained the benefit cannot put an end to the obligations under the treaty which were accepted by way of quid pro quo15. Subsequently, the court dealt with the international principle for the above arguments presented by Iceland which is enshrined in Article 62 of the Vienna Convention which states as follows: Article 62 - Fundamental Change

1. A fundamental change of circumstances which has occurred with regard to those existing at

the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) The change's effect is radically transforming the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or

withdrawing from a treaty: (a) if the treaty establishes a boundary, or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to

15 a favour or advantage granted in return for something

the treaty. 16

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of

circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. It has been explicitly stated that the change requires be fundamental one, in this case, the change in fishing techniques and the evolution of the Law of the Seas. The court dealt with the issue only from the viewpoint of whether the entirety of the treaty could be repudiated by reason of change of circumstances or not. The court pronounced that not only the change of circumstances must be considered, but also that it must have radically changed the burden of obligations in so far as the burden of obligations has increased exponentially and that the obligations are not of the same character as it was earlier.

This rule remains unsatisfied in the case as there have been no radical changes so far, as the jurisdiction of the court is concerned and the matter of dispute which is to be referred to the court, has been known and anticipated by the parties in the compromissory clause. The court also shed light on the flaw in Iceland's contention of changed circumstances. The change in circumstances by itself does not lead to the termination of a treaty, but only gives a right to call for the termination of the treaty, and if any dispute arises, they would submit to a dispute resolution body. The UK also relied upon Article 6517 and Article 66 of the Vienna Convention18 in relation to the matter. The crux of Article 65 that is relevant to the present case is that if a party to the convention terminates the treaty, it must notify the other party along with

16 Vienna Convention on Law of Treaties, 1969,

https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

17 Article 65

1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. 2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed. 3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations.

18 Article 66

1. If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration; the reasons thereof. There is a period of 3 months, which, if the other party does not raise any objections, then they can proceed. Still, if any objections are raised, then the parties must resolve it as per Article 33 of the United Nations Charter. Article 33 of the UN Charter 19provides that if a dispute is likely to endanger international peace, then the dispute is to be referred to judicial settlement.

Also, Article 65 of the Vienna Convention states that if there is no solution reached within 12 months regarding a case concerning Article 64, it may be subject to the jurisdiction of the ICJ. Hence, the ICJ established its jurisdiction and provided a judgement against Iceland by stating that the Doctrine of Changing Circumstances cannot be used to denounce the obligations in the treaty unilaterally and held that:

1. Iceland had breached Article 2 of the 1958 Geneva Convention on the High Seas in so

far as the state exercising fisheries jurisdiction must have regard to other states interests

2. Violation of the UK’s rights under the Exchange of Notes, 1961.

19 Article 33 of the UN Charter

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.