Declarations, Separate Opinions and Dissenting Opinions
(a) Declarations
President Lachs stated that he was in agreement with the reasoning and conclusions of the Court and did not deem it appropriate to make any comments on the Judgment.
As regards the compensation claim presented by Germany, Judge Dillard maintained that there was no doubt that Iceland’s acts of harassment, which were indicated in considerable detail in the proceedings, were unlawful. Those acts were committed pendente lite despite obligations assumed by Iceland in the Exchange of Notes of 1961, which the Court had declared to be a treaty in force. According to Judge Dillard, the Court was only asked to indicate the unlawful character of the acts concerned and take note of the consequential liability of Iceland to make reparations. The Court was not asked to assess damages. Judge Dillard, therefore, would have preferred it if the Court had stressed the limited nature of the German submission instead of concluding that it could not accede to the submission in the absence of detailed evidence bearing on each concrete claim.
Judge Ignacio-Pinto stated that the decision was devoted to fixing the conditions for the exercise of preferential rights, for conservation of fish species, and historic rights, rather than responding to Germany’s primary claim, which was for a statement of the law on a specific point. In this connection, it should be observed that Germany did not seek a decision from the Court on a dispute between itself and Iceland on the subject of the preferential rights of the coastal State, the conservation of fish species, or historic rights.
Judge Ignacio-Pinto was of the view that the Court had deliberately evaded the question that was placed squarely before it in the case, namely whether Iceland’s claims are in accordance with the rules of international law. By not giving an unequivocal answer on that principal claim, the Court failed to perform the act of justice requested of it.
In conclusion, Judge Ignacio-Pinto believed that the Court would certainly have strengthened its judicial authority if it had given a positive reply to the claim laid before it by Germany, instead of embarking on the construction of a thesis on preferential rights, zones of conservation of species, or historic rights, on which there has never been any dispute, nor even
the slightest shadow of a controversy on the part either of the Applicant or Respondent. The Court should have confined itself strictly to the limits of the jurisdiction conferred on it.
Judge Nagendra Singh, while fully supporting the Judgment, wanted to make a number of clarifications. He mentioned that the Court did not proceed to pronounce itself on the Applicant’s request, which asked the Court to declare that Iceland’s extension of its exclusive fishery limit to 50 nautical miles had no basis in international law, because it would amount to asking the Court to find that such extension was ipso jure illegal and invalid erga omnes. Judge
Nagendra Singh observed that the rules of customary maritime law relating to the limit of fisheries jurisdiction were still evolving and, confronted by a widely divergent and discordant State practice, had not so far crystallized. The conventional maritime law, though substantially codified by the Geneva Conferences on the Law of the Sea of 1958 and 1960, had certain aspects
admittedly that remained to be settled and these now constituted, among others, the subject of subsequent efforts at codification. The question of the extent of fisheries jurisdiction, which was still one of the unsettled aspects, could not, therefore, be settled by the Court since it could not “render judgment sub specie legis ferendae, or anticipate the law before the legislator had laid it down”.
Judge Nagendra Singh noted that it was of some importance to know the precise content of the expression “fisheries jurisdiction” and for what it stands and means. The concept of fisheries jurisdiction did cover aspects such as enforcement of conservation measures, exercise of preferential rights and respect for historic rights since each one may involve an element of jurisdiction to implement them.
The contribution that the Judgment made towards the development of the law of the sea lay in the recognition that it gave to the concept of preferential rights of a coastal State in the fisheries of the adjacent waters; particularly if that State was in a special situation with its population dependent on those fisheries.
Lastly, Judge Nagendra Singh stated that the Judgment of the Court, in asking the Parties to negotiate a settlement, had emphasized the importance of resolving the dispute in the adjudication of the case.
(President Sir Muhammad Zafrulla Khan also appended a declaration on jurisdiction.)