Comment on the Anglo-Norwegian Fisheries Case (United Kingdom v Norway)

Subject Name:

Academic Year: 2022-2023

Semester: III

Submitted by

Gaurav Ghuge

UID

UGB22-15

Submitted to

Prof (Dr) Shilpa Jain

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

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 TABLE OF CONTENTS

Sr.No. Particulars Page No.

1. Citation 03

2. Facts Of the Case 03

3. The Issue in the Case 04

4. Judgment 04

5. ANALYSIS 05-08

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 Citation

(United Kingdom v Norway) [1951] ICJ Rep 116

Spain v Canada [1998] ICJ Rep 432, ICGJ 60 (ICJ 1998)

“Facts Of the Case

1906 Due to objections from the King of Denmark and Norway, British fishermen
abstained from fishing in Norwegian coastal waters.
1908 British fishing vessels, armed with more powerful and upgraded equipment,
returned in increasing numbers.
1911 The first event occurred when a British trawler was apprehended and sentenced for
breaking Norwegian fishing regulations.
1914 Negotiations between the two Governments were interrupted by the war.

1922 Recurring incidents prompted more discussions.

1924 Further discussions were started.

1932 Off the coast of Norway, British trawlers expanded their operations to areas west of
the North Cape; as a result, there were more warnings and arrests.
1933, July The UK government submitted a document expressing dissatisfaction with the
27 delimitation of the territorial sea using arbitrary basis lines.
1935, July Royal Decree of Norway specifies the Norwegian fishing zone north of latitude 66°
27 28.8’ North.
1948 The Norwegian government stopped enforcing the 1935 Decree laxly, which
increased the number of incidents involving British trawlers.
Ongoing United Kingdom Government Instituted the present Proceedings.

The Issue in the Case

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The main issue in the Anglo-Norwegian Fisheries Case was the conflicting claims of
jurisdiction over fisheries in the North Sea between the United Kingdom and Norway.
Norway claimed exclusive jurisdiction over the fishery zone beyond its territorial sea, while
the United Kingdom claimed historic fishing rights in the area, dating back to medieval times.

The main issues in the fisheries case were.

1. Whether the delimitation of the Norwegian fisheries zone by the Decree of 1935 has
not been drawn in accordance with international law?
2. Whether Norway is responsible for arresting the British people and whether Norway
should pay compensation or not?

Judgment

THE COURT, rejecting all submissions to the contrary,

Finds by ten votes to two, that the method employed for the delimitation of the fisheries zone
by the Royal Norwegian Decree of July 12th, 1935, is not contrary to international law; and
by eight votes to four, that the base-lines fixed by the said Decree in the application of this
method are not contrary to international law. Done in French and English, the French text
being authoritative, at the Peace Palace, The Hague, this eighteenth day of December, one
thousand nine hundred and fifty-one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the United Kingdom of
Great Britain and Northern Ireland and to the Government of the Kingdom of Norway,
respectively.

Judge HACKWORTH declares that he concurs with the operative part of the Judgment but
desires to emphasize that he does so for the reason that he considers that the Norwegian
government has proved the existence of a historic title to the disputed areas of water.

Judges ALVAREZ and Hsu Mo, availing themselves of the right conferred on them by Article
57 of the Statute, append to the Judgment of the Court statements of their separate opinions.
Judges Sir Arnold MCNAIR and READ, availing themselves of the right conferred on them
by Article 57 of the Statute, append to the Judgment statements of their dissenting opinions.”

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ANALYSIS

Background to the case

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. Also, when we talk about the
formation of customary law the court consistently referred to positive (1) state practice and
(2) lack of objections of other states on that practice as a confirmation of an existing rule of
customary international law (seep. 17 and 18). There was no mention of opinion juris in this
early judgment. In the following passage, the court considered that expressed state dissent
regarding a particular practice was detrimental to the existence of an alleged general rule. It
did not elaborate whether these states adopted a contrary practice because it was claiming an
exception to the rule (see the Nicaragua jurisprudence) or because it believed that the said
rule did not possess the character of customary law.

“In these circumstances, the Court deems it necessary to point out that although
the ten-mile rule has been adopted by certain States both in their national law and
in their treaties and conventions, and although certain arbitral decisions have
applied it as between these States, other States have adopted a different limit.
Consequently, the ten-mile rule has not acquired the authority of a general rule of
international law.”

Persistent objector rule

The persistent objector rule here in the court in its judgment held that even if a customary law
rule existed on the 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 Norwegian coast.”

In this case, the court appears to support the idea that an existing customary law rule would
not apply to a state if it objected to any outside attempts to apply the rule to itself, at the
initial stages and in a consistent manner, and if other states did not object to her resistance. In
this manner, the Anglo-Norwegian fisheries case joined the asylum case (Peru vs Colombia)
in articulating what we now call the persistent objector rule.

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Also, the initial objection in the present case, the court pointed out that the Norwegian
Minister of Foreign Affairs, in1870, 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 finally held that

“Language of this kind can only be construed as the considered expression of a

legal conception regarded by the Norwegian Government as compatible with
international law”.1

Also, the court held that Norway had refused to accept the rule as regards it by 1870. The
court also went on to hold that Norway 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 a 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 Norwegian Practice.”

After 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 its objections, the court inquired whether the
Norwegian system of delimitation, itself, was contrary to international law. To do so, the
court referred to state practice once more.2

“The general toleration of foreign States with regard to the Norwegian practice is
an unchallenged fact. For a period of more than sixty years the United Kingdom
Government itself in no way contested it… The Court notes that in respect of a
situation which could only be strengthened with the passage of time, the United
Kingdom Government refrained from formulating reservations.”

Adding to this case, Norway adopted a contrary practice i.e., a practice that was the subject of
litigation.

1
(Fisheries Jurisdiction, Spain V Canada, Judgment, Jurisdiction, [1998] ICJ Rep 432, ICGJ 60 (ICJ 1998), 4th
December 1998, United Nations [UN]; International Court of Justice [ICJ], n.d.)
2
(Fisheries Jurisdiction, Spain V Canada, Judgment, Jurisdiction, [1998] ICJ Rep 432, ICGJ 60 (ICJ 1998), 4th
December 1998, United Nations [UN]; International Court of Justice [ICJ], n.d.)

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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) but rather it claimed that its
practice was in conformity with international law (see page 21).

“In its (Norway’s) view, these rules of international law take into account the diversity of
facts and, therefore, concede that the drawing of base-lines must be adapted to the special
condition obtaining in different regions. In its view, the system of delimitation applied in
1935, a system characterized by the use of straight lines, does not therefore infringe the
general law; it is an adaptation rendered necessary by local conditions.”

At last, The Anglo-Norwegian Fisheries case provides a detailed examination of the

development and applicability of customary international law. The key issue was the
constitutionality of Norway’s technique for determining its territorial sea baseline,
particularly in respect to the contentious ten-mile rule. In affirming the existence of a
customary norm in international law, the Court’s reasoning emphasizes the importance of
both state behavior and the absence of complaints from other nations. Notably, the Court
stated that the ten-mile norm had not been elevated to the status of a general rule of
international law due to differences in state practices and perceptions. This highlights the
significance of widespread acceptance and consistent application in the formation of
customary standards.

The advent of the persistent objector rule honed our understanding of customary law even
more. It holds that a state may be free from a customary norm if it consistently and clearly
objects to its application, as long as other states do not object. Norway’s long-standing
objection to the ten-mile limit highlighted this concept, emphasizing its freedom to use other
techniques consistent with its view of international law. The Court emphasized, crucially,
previous remarks by the Norwegian Minister of Foreign Affairs dating back to 1870 that
rejected the ten-mile threshold as a fundamental tenet of international law. This approach
strengthened Norway’s view that its chosen delimitation strategy was an adaptation necessary
by particular local constraints, rather than a divergence from recognized norms.

Finally, the case emphasizes the dynamic character of customary international law, which is
affected by changing state practices, legal interpretations, and regional context concerns. It
establishes a precedent for the international community to recognize nations’ rights to
advocate their own interpretations of international law, provided they do so consistently and
without significant opposition. Thus, the Anglo-Norwegian Fisheries case makes an

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important addition to the jurisprudence surrounding customary international law, and the
concept of persistent objection specifically objects to its implementation, provided that other
nations do not fight this objection. Norway’s long-standing objection to the ten-mile limit
highlighted this concept, emphasizing its freedom to use other techniques consistent with its
view of international law.

The Court emphasized, crucially, previous remarks by the Norwegian Minister of Foreign
Affairs dating back to 1870 that rejected the ten-mile threshold as a fundamental tenet of
international law. This approach strengthened Norway’s view that its chosen delimitation
strategy was an adaptation necessary by particular local constraints, rather than a divergence
from recognized norms. Finally, the case emphasizes the dynamic character of customary
international law, which is affected by changing state practices, legal interpretations, and
regional context concerns. It establishes a precedent for the international community to
recognize nations’ rights to advocate their own interpretations of international law, provided
they do so consistently and without significant opposition. As a result, the Anglo-Norwegian
Fisheries case makes an important addition to the jurisprudence of customary international
law and the concept of persistent objection.