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INTERNATIO~AL COURT OF JUSTICE

YEAR 1951

December 18th, 1951

FISHERIES CASE

(UNITED KINGDOMv. NORvVAY)

Validity in international law of Royal Norwegian Decree of I935

delimiting Norwegian fisheries zone.-Fisheries zone; territorial sea.

-Special characteristics of Norwegian coast; "skjCErgaard".-Base-

line for measuring breadth of territorial sea; low-water mark.-Outer

coast line of "skjCErgaard".- Intemal umters; territorial waters.-

Trace pamllele method.. envelopes of arcs of circles method.. straightbase-lines method.-Length of straight base-lines; Io-mile rule for bays ..

historic waters.-Straits.. Indreleia.- International interest in delitnita-

tion of maritime areas.-General criteria for SHch delimitation.. general

direction of the coast.. relationship between sea areas and land lorma-tions.-Norwegian system of delimitation regarded as adaptation of

general internationallaw.-Consistency in aPPlication of this system.-

A bsence of opposition or reservations by foreign States.- Notoriety.-

Conformity of base-lines adopted by I935 Decree with princiPles of

international law aPPlicable to delimitation 01 the territorial sea.

HOO --- --

JUDGMEKT

Present: President BASDEVA}rT; Vice-President GUERRERO;

Judges ALVAREZ, HACKWORTH, \VINIARSKI, ZORICIC,

DE VISSCHER, Sir Arnold McNAIR, KLAESTAD, BADAWI

PASHA, READ, Hsu Mo; Registrar HAl\IBRO.

116

J951

December 18th

General List:

No. 5

4



]UDGl\IEKT OF 18 XII SI (FISHERIES CASE) 138

It must be remembered that the request for information to ,vhichthe Norwegian Government was replying related not to the use ofstraight lines, but to the breadth of Norwegian territorial ,vaters.The point of the Norwegian Government's reply was that there had

been no modification in the Korwegian legislation. Moreover, it isimpossible to rely upon a few words taken from a single note todraw the conclusion that the Norwegian Government had abandoneda position which its earlier official documents had clearly indicated.

The Court considers. that too much importance need not beattached to the fe\v uncertainties or contradictions, real or apparent,which the United Kingdom Government claims to have discoveredin Norwegian practice. They may be easily understood in the lightof the variety of the facts and conditions prevailing in the longperiod which has elapsed since 1812, and are not such as to modifythe conclusions reached by the Court.

In the light of these considerations, and in the absence of con-vincing evidence to the contrary, the Court is bound to hold thatthe Norwegian authorities applied their system of delimitation con-sistently and uninterruptedly from 1869 until the time when thedispute arose. .

From the standpoint of international law, it is now necessary toconsider whether the application of the Norwegian system encoun-tered any opposition from foreign States.Norway has been in a position to argue without any contra-

diction that neither the promulgation of her delimitation Decreesin 1869 and in 1889, nor their application, gave rise to any

opposition on the part of foreign States. Since, moreover, theseDecrees constitute, as has been shown above, the application ofa well-defined and uniform system, it is indeed this system itselfwhich would reap the benefit of general toleration, the basis ofan historical consolidation which would make it enforceable as

against all States.The general toleration of foreign States with regard to the

Xorwegian practice is an unchallenged fact. For a period of morethan sixty years the United Kingdom Government itself in noway contested it. One cannot indeed consider as raising objectionsthe discussions to which the Lord Roberts incident gave rise in1911, for the controversy which arose in this connection related

to hvo questions, that of the four-mile limit, and that of Korwegiansovereignty o,'er the Varangerfjord, both of which were uncon-nected with the position of base-lines. It would appear that itwas only in its Memorandum of July 27th, 1933, that the UnitedKingdom made a formal and definite protest on this point.

The United Kingdom Government has argued that the Nor-wegian system of delimitation was not known to it and that the

26



JUDGMENT OF 18 XII SI (FISHERIES CASE) 139

system therefore lacked the notoriety essential to provide thebasis of an historic title enforceable against it. The Court is unableto accept this view. As a coastal State on the North Sea, greatlyinterested in the fisheries in this area, as a maritime Power

traditionally concerned with the law of the sea and concerned

particularly to defend the freedom of the seas, the United Kingdomcould not have been ignorant of the Decree of 1869 which hadat once provoked a request for explanations by the French Gov-ernment. Nor, kno\ving of it, could it have been under any misappre-hension as to the significance of its terms, which clearly describedit as constituting the application of a system. The same obser-vation applies a fortiori to the Decree of 1889 relating to thedelimitation of Romsdal and Nordmore which must have appearedto the United Kingdom as a reiterated manifestation of theNorwegian practice.Norway's attitude with regard to the North Sea Fisheries

(Police) Convention of 1882 is a further fact which must at once

have attracted the attention of Great Britain. There is scarcelyany fisheries convention of greater importance to the coastalStates of the North Sea or of greater interest to Great Britain.Norway's refusal to adhere to this Convention clearly raised thequestion of the delimitation of her maritime domain, especiallywith regard to bays, the question of their delimitation by meansof straight lines of which Norway challenged the maximum lengthadopted in the Convention. Having regard to the fact that a fewyears before, the delimitation of Sunnmore by the 1869 Decreehad been presented as an application of the Norwegian system,one cannot avoid the conclusion that, from that time on, all the

elements of the problem of Norwegian coastal waters had beenclearly stated. The steps subsequently taken by Great Britain tosecure Norway's adherence to the Convention clearly show thatshe was aware of and interested in the question.

The Court notes that in respect of a situation which could onlybe strengthened with the passage of time, the Cnited KingdomGovernment refrained from formulating reservations.The notoriety of the facts, the general toleration of the inter-

national community, Great Britain's position in the North Sea, herown interest in the question, and her prolonged abstention wouldin any case warrant Norway's enforcement of her system. againstthe United Kingdom.The Court is thus led to conclude that the method of straight

lines, established in the Norwegian system, was imposed by thepeculiar geography of the Norwegian coast; that even before thedispute arose, this method had been consolidated by a constant andsufficiently long practice, in the face of which the attitude ofgovernments bears \vitness to the fact that they did not considerit to be contrary to international law.

27



176 DISSEXTIXG OPIXIOX OF SIR ARXOLD ~ICXAIR

comments must be made. Firstly, it represents the cry of the smallman in the open boat against the big man in the decked boat. Itsays that the area in question "has of recent years been invaded bya growing number of decked vessels, both Swedish and Norwegiancutters, from \\"hich fishing was practised with heavy lines", etc.Apparently the Swedes began it in 1866 and the Norwegians followedsuit. Another passage states that the local fishermen "bitterly com-plained of the fact that intruders on the fishing grounds pre-viously visited exclusively by Norwegians were mainly foreigners-Swedes". The fear was also expressed that fishing boats from othercountries, especially France, might soon appear on the fishingbanks. Accordingly, the ~1inister had been asked "to form an opin-ion on the possibility of claiming them as Norwegian property".(The reference to France was probably prompted by the Vestfjord

,incident of the previous year which would be fresh in the depart-mental mind.)

The Statement of Reasons invokes the precedent of the Decreeof 1812. In addition, there is a letter of November 1st, 1869 (AnnexNo. 28 to the Counter-Memorial) from the Norwegian Minister ofthe Interior to the Swedish :Minister of Civil Affairs, informinghim of the Decree made on the 16th instant (? ultimo), andit contains the passage: "it has been desired to bring this matterto the notice of the Royal Ministry in order that the latter maypublish the information in those Swedish districts from whichthe fishing fleets set out for the Norwegian coast". (There is noevidence of any notification of the Decree to any other State.) Thepenultimate sentence in this letter is as follows:

"Moreover, if the fishery in these areas were left open, thereis reason to believe that the fishermen of many foreign countrieswould visit them, with the result of a diminution of the productsof the fishery for everybody."

The Decree was a public document. A large part of the Statementof Reasons is quoted in the Norwegian Report of a Commissionon the Delimitation of Territorial vVaters of 1912, but, so far as Iam aware, the Statement of Reasons was not published at the time

of making the Decree.The French Government-probably on the qui-vive by reasonof the Vestfjord incident of the previous year-became awareof the Decree of 1869 hvo months later and a diplomatic corre-spondence between the two Governments ensued, in which the

French Government contended that "the limits for fishing between[Svinoy and Storholmen] should have been a broken line followingthe configuration of the coast which would have brought it nearer64



177 DISSEXTIXG OPIXIOX OF sm .-\H.XOLD ~ICX.-\II~

that coast than the present limit". The last item in this corrc-spondence is a ~ote from the French Charge d'.-\ffaires at Stock-holm to the Foreign Minister of Non\"ay and Sweden, dated July 27,1870, \\"hich referred to "the future consequences that mightfollmv from our adhesion to the principles laid down in the Decree",

and stated that "this danger could easily be avoided if it wereunderstood that the limit fixed by the Decree of October 16thdoes not rest upon a principle of international law, but upon apractical study of the configuration of the coasts and of the con-ditions of the inhabitants", and offered to recognize the delimitationde facto and to join in "a common survey of the coasts to beentrusted to two competent naval officers". It would appear thatthe French Government wished to protect itself against a de jurerecognition of principle. ~leanwhile, on July 19, the Franco-Prussian \var had brok('n out, and there the matter has resteelever smce.

(iv) .:1 Royal Decree oj September 9th, I889 , extended the limitfixed by the Decree of 1869 northward in front of the districts ofRomsdal and ~ordm(.>re by means of a series of four straight lines,connecting islands, totalling about 57 miles, so that the two Decreesof 1869 and 1889 established straight base-lines of a total lengthof about 83 miles. The Decree of 1889 was also motivated by aStatement of Reasons submitted by the ~Iinister of the Interiorto the Crown, which was included in a publication called Departe-

ments- Tidende of l\Iarch 9, 1890. This Statement of Reasons, whichalso refers to the Decree of 1812, indicates the necessity of empower-ing the Prefect responsible for Nordmore and Romsdal to makeregulations prohibiting fishing boats from lying at anchor at certainpoints on the fishing grounds during February and :.\Iarch. It makesno reference to foreign vessels.The question thus arises whether the two Decrees of 1869 and

1889, affecting a total length of maritime frontier of about 83 miles,and connecting islands but not headlands of the mainland, oughtto have been regarded by foreign States when they became awareof them, or ought but for default on their part to have becomeaware, as notice that Korway had adopted a peculiar system ofdelimiting her maritime territory, which in course of time \vouldbe described as having been from the outset of universal applicationthroughout the whole coast line amounting (without taking thesinuosities of the fjords into account) to about 3.400 kilometres(about 1,830 sea-miles), or whether these Decrees could properlybe regarded as regulating a purely local, and primarily domestic,situation. I do not see how these two Decrees can be said to have

notified to the United Kingdom the existence of a system ofstraight base-lines applicable to the whole coast. In the course oftheoral argument, Counsel for the United Kingdom admitted that

65



178 lJISSEXTIXG OPIXIOX OF SIR .\RXOLD ~!cx.\m

the United Kingdom acquiesced in the lines laid down by theseDecrees as lines applicable to the areas \\"hich they cover.

(v) A Decree oj January 5th, I88I, prohibited whaling duringthe first five months of each calendar year

"along the coasts of Finnmark, at a maximum distance of onegeographical league from the coast, calculating this distance fromthe outermost island or islet, which is not covered by the sea. Asregards the Varangerfjord, the limit out to sea of the prohibitedbelt is a straight line, drawn from Cape Kibergnes to the RiverGrense-]akobselv. It must thereby be understood, however, thatthe killing or hunting of whales during the above-mentioned periodwill also be prohibited beyond that line at distances of less thanone geographical league from the coast near Kibergnes."

Thus, while expressly fixing a straight base-line across the mouthof the Varangerfjord (which is no longer in dispute in this case),the Decree makes no suggestion and gives no indication that itinstituted a system of straight base-lines from the outermost pointson the mainland and islands and rocks at any other part "alongthe coasts of Finnmark". I find it difficult to see how this Decree

can be said to have given notice of a Norwegian system of straightbase-lines from Trrena in the vvest to the Russian frontier in theeast.

(vi). The I88r Hague Conference regarding Fisheries in the North

Sea resulting in the Convention oj I882. The Judgment of the Courtrefers to this incident and draws certain conclusions from it. This

Conference was summoned upon the initiath'e of Great Britainwith a view to the signature of a Convention as to policing thefisheries in the North Sea. The follm\'ing States were represented:Germany, Belgium, Denmark, France, Great Britain, Sweden,Norway, the delegate of the last-named being 11. E. Bretteville,Naval Lieutenant and Chief Inspector of Herring Fishery. Theintention was that the Convention should operate on the highseas and not in territorial waters, and consequently it was necessaryto define the extent of the territorial \vaters within the area affected.

The proces-verbaux of the meetings are to be found in a British

\Vhite Paper C. 3238, published in 1882.

The northern limit of the operation of the Convention was fixedby Article 4 at the parallel of the 61st degree of latitude, whichis south of the area in dispute in this case.At the second session of the Conference, the question of Terri-

torial \Vaters was discussed, and the following statement appearsin the proces-verbaux:66



179 DISSEXTIXG OPIXIOX OF sm AI{XOLD :\!Cx.\m

,.The);" orwegian delegate, Al. E. Bretteville, could not accept theproposal to fix territorial limits at 3 miles, particularly with respectto bays. He was also of opinion that the international police oughtnot to prejudice the rights \vhich particular Powers might haveacquired, and that bays should continue to belong to the State

to which they at present belong."

Strictly speaking, there was no need for the 1\orwegian delegateto refer to the Decree of r869 because the Convention deals withthe area south of the parallel of the 6rst degree of latitude, butif a system of straight base-lines had already been adopted byNorway in r88r as being of general application all round the coast,it is surprising that he made no reference to it at a Conferenceat which all the States primarily interested in fishing in the NorthSea were represented, and as a result of \vhich all. except 1\orwayand Sweden, accepted the provisions of Article II of the Con-

vention, of which the following is an extract:

"Article 11

The fishermen of each country shaH enjoy the exclusive rightof fishery within the distance of 3 miles from low-water mark alongthe whole extent of the coasts of their respective countries, as wellas of the dependent islands and banks.

As regards bays, the distance of 3 miles shall be measured froma straight line drawn across the bay, in the part nearest theentrance, at the first point where the width does not exceed10 miles."

The Convention was eventually signed and ratified by all theStates represented except Norway and Sweden.

This incident, to \vhich I attach particular importance, inducesme to put t\VO questions:

(aj If a Norwegian system of delimiting territorial \vaters bymeans of straight base-,lines had been in existence since r869 (onlyr2 years earlier), could the Norwegian delegate, the Chief Inspectorof Herring Fishery, have found a more suitable opportunity ofdisclosing its existence than a Conference of Governments interestedin fishing in the Xorth Sea? In fact, could he have failed to do so

if the system existed, for it would have afforded a conclusive reasonfor inabilit:y to participate in the Convention of r882 ?

(bj Could any of the Governments which ratified this Conven-tion, knowing that Norway claimed four miles as the width ofterritorial waters and claimed her fjords as internal waters, beaffected by the abstention of Norway \vith notice of the existence

of a system which one day in the future would disclose long straight67



180 DISSE:-;TIXG OPIXION OF SIR ARXOLD :'IICXAIR

base-lines drawn along a stretch of coast line about 560 miles inlength (without counting fjords and other indentations), and whichis applicable to the whole coast?

*

*

Paragraph 96 of the Counter-Memorial, in discussing the eventsof the year 1908, states that

"it may be asked why Norway did noUrom the beginning use forceon all her territorial waters to apply the existing laws relating toforeign fishennen" "In this respect it must be remembered thatNorway had but recently acquired a separate diplomatic service,following the dissolution of the union with S,yeden in I905."

It is possible that this fact may explain the absence of any cate-

gorical assertion of the Norwegian system of straight base-lines asa system of universal application along the Norwegian coasts andthe notification of that system to foreign States. But even if thisis the explanation, it is difficult to see why it should constitute areason why foreign States should be affected by notice of this systemand precluded from protesting against it when it is enforced againstthem.

**

*

In these circumstances, I do not consider that the United

Kingdom was aware, or ought but for default on her part to havebecome aware, of the existence of a Nonvegian system of longstraight base-lines connecting outermost points, before this disputebegan in 1906 or 1908 or 19II.

**

*

I must refer very briefly to certain incidents occurring afterthe dispute began, though they have no bearing on the question ofacquiescence. Some of them are dealt with in the Judgment ofthe Court or in other Individual Opinions.In 19II, the Norwegian Government appointed a "Commission

for the Limits of Territorial Waters in Finnmark", which reportedon February 29th, 1912. A copy of Part I, General, was translatedinto French and sent "unofficially" to the United KingdomGovernment.

The following passage occurs on page 20 of this Part I :

.. En general, dans les cas particuliers, on prendra leplus surementune decision en conformite avec la vieille notion juridique nor-vegienne, si l'on considere la ligne fondamentale comme etant

68



194 DISSENTI::\G OPI::\IO::\ OF JUDGE RE.-\D

internationalla\\., it is necessary to considerthe question of historictitle. This aspect of the problem has arisen in hyo ways, both ofwhich involve decisions on the same basic questions of fact. Bothare related to the existence and application of the i\orwegian

System.

The Norwegian System involves the assertion, by ~orway, ofsovereignty over all the fjords and sunds, and over a 4-mile beltof territorial waters, measured from base-lines connecting points onthe mainland, or on the outermost islands, islets or rocks not con-

tinuously submerged by the sea. The System im'olves appreciationand selection of the base-points by Nonvay, taking into account thesocial and economic needs of the local population. There is nolimitation on the length of the lines. On the other hand, it is recog-nized that they must be reasonable and that they must conform tothe general direction of the coast. By general direction is meant a

fictional direction related to the country as a whole, and not to thesector of the coast under consideration. The Systcm does not admitof any need to conform to the real direction either of the outerfringe of the "skj<ergaard" or of the mainland coast.

The first way in which the historic aspect of the problem arisesconcerns the doctrine of historic waters. If it can be shown that

the Norwegian System was actually applied to the Disputed Areas,they can be regarded as historic waters, and the British case fails.

The second way in which it arises concerns the general doctrinesof international law. If it can be shown that the Norwegian System

has been recognized by the international community, it follows thatit has become the doctrine of international law applicable to Nor-way, either as special or as regional law, and the British case fails.

In both cases the burden is upon Norway to prove the followingfacts:

Ist- that the ~onvegian System came into being as a part ofthe law of ~orway ;

2nd-that it was made known to the world in such a manner

that other nations, including the United Kingdom, knewabout it or must be assumed to have had knowledge; and

3rd-that there has been acquiescence by the international com-munity, including the United Kingdom.

As regards the question of historic waters there is the additional

point referred to above, namely, that it must be sho\'v'll that theSystem was actually applied to the Disputed Areas. In the secondcase, treating the System as special or regional law, it would beenough to sho\v that Nonvay had asserted competence to apply its82



DISSE:-.JTI~G OPIXIOX OF lCDGE READ

"59. The Royal Decree of October r6th, r869, provides that'a straight line at a distance of one geographical league, parallelwith a straight line joining the islet of Storholmen and the islandof S\'in6y should be considered as the limit of the sea belt off thebaili\\"ickof Sondm6re, within which the fishing shall be exclusively

resen'ed to the indigenous inhabitants'."

The text of the Decree is unequivocal. It establishes a line ofdemarcation for a sector of the i\ orwegian coast far from theDisputed Areas (the same is true for the 1889 Decree). It saysnothing about the coasts of Finnmark, Troms or Nordlanc1. Itdoes not pretend to lay down any principles of general application.In itself, it has no bearing on the present case. On the other hand,it does lay down a long base-line connecting two remote islands.The question to be decided is \vhether the making of one Decree,

limited in its scope and applicable only to the particular coast ofSunnmore in 1869. followed by a similar Decree continuing the

line and using long straight base-lines for the particular coast ofRomsdal in 1889, was enough to make known to the world theexistence of the Norwegian System.The British concession that the waters covered by the Sunnmore

and Romsdal Decrees are Norwegian historic waters would justifya finding that these Decrees were sufficiently well known, but theydid not make any claims extending beyond these two localities.

On the other hand, neither the Norwegian Note to France,nor the Statement of Reasons \'v'as brought to the attention ofother go\'ernments and certainly not to the attention of theBritish Government.

Counsel for Norway reviewed the reasons for assuming Britishknowledge of the Norwegian System. He showed that the Decreesof 1869 and 1889 had been published in a gazette called the"Bulletin of the :\Iinistries" and in books like Fulton and the

Reports of the Institute of International Law. He made a goodcase for the view that the Decrees were "'ell known to the world,

but he did not point to any instance in which either the Statementof Reasons or the Note to France, No. 4, \\"ascommunicated to theBritish Government, or, indeed, to any other foreign government.

200

In these circumstances, I am unable to conclude that the British

Government, or, indeed, any other foreign government exceptFrance, had any reason to believe that a ::\orwegian System hadcome into being in 1869-1889, or that these Decrees were anythingmore than local ad hoc measures.

I do not intend to review all the official acts and public state-ments of the Norwegian Government or to examine the texts of

the Laws and Decrees delimiting XOf\\'egian waters, whetherfor fishing, prize or other purposes. For my part it is enough88



201 DlSSE:\TIXG OPIXIQ:\ OF JCDGE READ

to say that they cover a long period of time, and that theyindicate:

Ist-that there was no Norwegian System under ,,,hich exclusiverights were asserted over the fisheries in the Disputed

Areas;

2nd-that the public acts of the Non,"egian Government were,during this period, consistent ,,-ith claims to a belt ofterritorial \vaters, four miles in breadth, measured fromthe coast;

3rd-that there was nothing in these public acts and documentswhich would lead the British, or any other foreign govern-ment, to believe that Norway ,,,as claiming the DisputedAreas; or a right, as regards the ,,-hole country, to measureterritorial waters from long base-lines departing from theline and direction of the coast.

These circumstances greatly increase the difficulty which con-fronts me, when I am asked to find that there has been constructivenotice to the British Government of the existence of the NorwegianSystem, or of such claims by the Norwegian Go\'crnment. At most,the British Government could be assumed to have had knowledgethat there was a possibility that Norway might, at some futuretime, tryout a course in other parts of the coast, similar to thatwhich had been followed in the Sunnmore and Romsdal Decrees.

It is impossible to overlook the fact that the evidence clearlyindicates that the Government of the United Kingdom had no

actual knowledge of the Norwegian System, or of the nature andextent of the rights claimed by Norway. Reference has alreadybeen made to an attempt by Sir Charles \Vingfield to obtain inform-ation, and to the refusal by Mr. Esmarch to give any real indi-cation of the nature and extent of the Xon,"egian claims. Thereare other instances of enquiries, and the Xonyegian Agent gavean exhaustive list of the answers given (Statements in Court,pp. 17S-176). An examination of these ans\wrs shows that noinformation was given to the Government of the United Kingdom,at any time before the commencement of the dispute, that couldbe regarded as actual or constructive notice that Norway wasasserting the right to establish a belt of territorial waters measured

from long base-lines departing from the line of the coast.

There is one of the "answers", to which the ~of\vegian Agentreferred, which requires special consideration, namely, the 1912Report. This was a report of a NOf\wgian commission intendedfor the information and guidance of the Nor,,-egian executive andlegislative authorities. It contained extensive quotations from the89



202 DISSEXTIXG OPIXIOX OF lGDGE READ

Statements of Reasons for the 1869 and 1889 Decrees; it sho\\'edthat the commissioners fa,'oured the method of measuring terri-torial waters from long straight base-lines; and it put forwardconcrete proposals, similar to those adopted in the 1935 Decree,

in the Annex No. I (supplemented by a later report by anothercommittee in 1913-Counter-:Jlemorial, Annexes 36 and 37). TheNorwegian Government \\"ithheld these documents so that it wasimpossible for the British Government to understand the extentof the claims, Enough remained, ho\\"ever,in the body of the 1912

Report to show that Xorway might be claiming the right to measureits belt of territorial waters from long straight base-lines.

Accordingly, the question arises: \\"hether this communicationof the 1912 I~eport was notice to the British Government of theexistence of the Norwegian System; and, if so, whether there

was acquiescence by that Government, so as to enable the claimsconstituting that System to ripen into rules of customary inter-national law.

Here, without going into the question whether the Report \vasan adequate warning of the existence of the System, I shall considerwhether the failure of the British Government. to make specificprotests on receipt of the 1912 Report and of the Norwegian Noteof November 29th, 1913, can be regarded as acceptance of theNorwegian claims.

The circumstances attending this communication are plain

enough. Controversy regarding the extent of ~orwegian waters

had arisen as a result of the seizure of the British trawler LordRoberts in the Varangerfjord in :Jlarch 19II (Counter-Memorial,Annex 38). The difference between the two Governments, as under-stood at the time, was stated in the British :\Iinister's Note of

August 22ncl, 1913, as follows:

"The points of view of the two Governments may be brieflydefined as being that, while His ::\Iajesty's Government contendthat, in the absence of any specific agreement to the contrary,jurisdiction cannot be exercised in \vaters beyond a distance ofthree marine miles from low-water mark, Xorway claims as withinher territorial jurisdiction all waters up to a distance of four marinemiles, together \vith the \vhole area comprised in certain fjords."

The Minister proposed a modus vivendi, and, in his proposal,made it clear that (c His :Jlajesty's Government must insist onleaving the question of principle intact, and cannot admit that,failing a special understanding, the Korwegian Government areentitled to settle the disputed point arbitrarily in their o\vn favour."

90



2°3 DISSE~TI~G OPI~IOX OF J CDGE READ

In the ?\orwegian Foreign :\Iinistry's ~ ote of November 29th,1913, dealing \vith the proposal, reference \\"as made to the 1912Report:

"The reasons advanced by ::Jorway in support of her delimitation

of her territorial waters, are set forth in the report of a Commissionappointed in 1911.A few copies of a French translation of thisreport were forwarded to you unofficially at the time by my prede-cessor }Ir. Irgens. In it those principles of international law wereset forth, which, in the opinion of the Xorwegian Government,were favourable to its point of view, together with the particularcircumstances obtaining in the matter of Xorwegian territorialwaters, including the recognition accorded thereto, either explicitlyor implicitly by foreign Powers."

The Ministry went on to suggest modifications of the proposal.

Nothing came of these negotiations, presumably because of theintervention of war.

The 19I2Report was transmitted and adopted by the NorwegianForeign l\Tinistry as a statement of the principles of internationallaw supporting the Norwegian position. This was done, however,in the course of negotiations for the establishment of a modus

vivendi. By its very nature, a modus vi~'elldi implies the reservationand preservation of the legal positions of both Parties to the con-troversy. If nothing had been said, it would have been necessaryto imply an intention of both Parties to admit nothing and tomaintain their legal positions intact. In this case, however, thenegotiations proceeded on the basis of an express stipulation toleave "the question of principle intact".

In these circumstances, I think that the British Government

was justified in regarding all aspects of the negotiations, includingthe 1912Report and the Note of :L\ovember29th, 1913, as coveredby the basic reservation. The omission to make a specific reservationor objection at this stage cannot possibly be treated as proof ofacquiescence in or acceptance of the ?\onregian System.

There is the further point, that from the time of the seizure of

the Lord Roberts, in 19II,until the present the Parties have beenin controversy about the extent of Xonvegian waters and aboutthe rights of British ships in areas which were regarded by the

British Government as part of the High Seas. Parts of the con-troversy have been settled by the British concessions with regardto the 'four-mile limit, the fiords and sunds, and the recognitionof the outer fringe of the "skjcergaard" as the coast line. Apartfrom these concessions, the British Government has never admitted

the right to measure territorial waters from long base-lines depart-ing from the line of the coast or the "skjcergaard", and it hasmaintained throughout the contention that the v,;aters must be

91



204 DISSENTING OPI~IO~ OF ]rDGE READ

measured from the low-water mark. The transmission of the 1912Report \\ as made after the commencement of the dispute.

The position of the Parties regarding knO\rledge of the Norwegian

claims or notice of the existence of the Norwegian System may besummed up. Shortly after the commencement of the dispute, in thecorrespondence exchanged in 1913 and referred to above, theBritish Government received some indication that Norway mightbe making extensive claims as regards the demarcation of territorialwaters, but no definite information as to the extent of the claim;and, as I have already indicated, the information was received in

such circumstances that the failure to make immediate protest couldnot have been regarded as acquiescence e\"en if the extent of theclaim had been indicated. In 1923-1924 at the time of the Kanuck

incident, both the British Government and the Norwegian ForeignMinistry were in the dark as to the nature and extent of the claims

which are now regarded as being involved in the Norwegian System.The British Government was informed by the late Sir FrancisLindley that the Norwegian Government ""as relying on the applic-ation of the Io-mile rule for the Persfjord. The Norwegian ForeignMinistry thought that it was relying on the Harbakken-Kavringenclosing line for the fjord, 9.4 marine miles in length. The communica-tion by the Norwegian Foreign Ministry to the Secretary-Generalof the League of Nations, March 3rd, 1927, disclosed to the worldthe fact that Norway was asserting the right to mark out the beltof territorial waters from long straight base-lines, although even atthat late date it was not yet clear that ?\orway was asserting theright to use base-lines that departed from the line and direction of

the coast or of the outer fringe of the "skjcergaard". In the corre-spondence arising out of the Lord Weir seizure, there \vas a marked

change on both sides. Sir Charles \Vingfield's Note clearly indicatedthat the British Government had by that time learned that Norwaywas asserting the right to use long straight base-lines, and that itsuspected that the Norwegian claim might be even more extensivethan that which was involved in the closing line for the Syltefjordthen relied on by the Norwegian authorities. The British Govern-ment was requesting definite information as to the nature and

extent of the Norwegian claim. Mr. Esmarch's No::e shows clearlythat the Norwegian Foreign Ministry was then aware that muchmore extensive claims were in the offing, but that it was still im-

possible to give any real information as to the nature and extentof the claims. The British Memorandum to the Norwegian Govern-ment, July 27th, 1933, set forth in the Counter-1\lemorial, Annex Il,

shows that even then the Government was still waiting for anauthoritative statement as to the Nonyegian claim. It is clear,

therefore, that the British Government, notwithstanding repeatedrequests, was unable to obtain any definite information as to the

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205 DISSENTING OPINIOX OF lCDGE READ

true nature and character of the Nonvegian System prior to thejudgment in the St. Just case, and the publication of the RoyalNorwegian Decree of 1935.

In these circumstances, I cannot avoid reaching the conclusionthat it has not been proved that the Norwegian System was madeknown to the world in time, and in such a manner that other nations,

including the United Kingdom, knew about it or must be assumedto have had constructive knowledge.

There is perhaps one qualification regarding the foregoing con-clusion. It appears from the record of seizures and warnings totrawlers that Norway, in 1923, began to assertand enforce exclusiverights in the ,vaters in dispute. There is an isolated instance ofwarning to a British trawler Caulon£a in 1913, at a point outsidethe Green Line; but no other instance of either seizure or warningat a point outside of that line before 1923. Between the years1923-1949, there were twenty-four seizures and twenty-three warn-ings of trawlers at points within the Disputed Areas. (

There can therefore be no doubt that Norway, from 1923 on,was vigorously asserting and enforcing extensive exclusive rights.On the other hand, this was too late to support a claim to theexistence of the Nonvegian System as a doctrine of customaryinternational law binding on the United Kingdom. The first of theseizures, the Kanuck in 1923, was the subject of diplomatic nego-tiation. \Vhile it would be entirely proper to ?-ttribute to the Govern-ment of the United Kingdom knowledge that Norway, during theperiod from 1923 to 1933, was asserting very ,vide claims as regardsthe extent of territorial waters, this all took place after the presentdispute had come into being. It was too late to give effect to aspecial or regional doctrine of international law binding on theGovernment of the United Kingdom.

I do not intend to. comment on the different sectors of the coast,

or to indicate, in detail, the parts of the Disputed Areas whichare open to objection as not having been delimited in conformitywith the principles of international law. In East Finnmark I

consider that the Disputed Areas between base-points 5 and 12 areopen to serious objection, and there I consider that the Green Linefairly indicates the extent to which the Blue line is not in conform-

ity with internationallavl. Between base-points 12 and 35, whilethere are places where the Blue Line departs from the line anddirection of the outer fringe of the "skjcergaard", the Green Line

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