INTERNATIONAL COURT OF JUSTICE, BY 12 VOTES TO 5, DETERMINES IT HAS NO
Press Release
ICJ/560
INTERNATIONAL COURT OF JUSTICE, BY 12 VOTES TO 5, DETERMINES IT HAS NO
19981204 Upholds Canadian Contention That Dispute Comes Under Previously Declared Reservation Relating to Conservation and Management MeasuresTHE HAGUE, 4 December (ICJ) -- The International Court of Justice (ICJ) today declared that it had no jurisdiction to adjudicate upon the dispute brought in 1995 by Spain concerning Fisheries Jurisdiction (Spain v. Canada).
The decision was taken by twelve votes against five. Since the Court included on the Bench no judge of the nationality of Spain or Canada, those two States had each appointed a judge ad hoc, bringing the total number of judges to 17.
Background
On 28 March 1995, Spain filed an Application instituting proceedings against Canada following the boarding on the high seas by a Canadian patrol boat, on 9 March 1995, of a fishing boat, the Estai, flying the Spanish flag. The boarding was carried out in pursuance of the Canadian Coastal Fisheries Protection Act (As amended on 12 May 1994) and of its implementing regulations.
In its Application, Spain maintained that Canada had violated the principles of international law which enshrine freedom of navigation and freedom of fishing on the high seas, and had also infringed the right of exclusive jurisdiction of the flag State over its ships on the high seas. As a basis of the Court's jurisdiction, Spain relied upon the declarations by which both States accepted that jurisdiction as compulsory (Article 36, paragraph 2, of the Statute of the Court).
On 21 April 1995, Canada informed the Court that, in its view, it lacked jurisdiction to deal with the case by reason of a reservation made in its declaration of 10 May 1994. In this declaration, Canada stated that the Court had compulsory jurisdiction "over all disputes ... other than ... disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the [Northwest Atlantic Fisheries Organization's] regulatory area ... and the enforcement of such measures".
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Reasoning of the Court
The Court begins by noting that the Parties do not agree on the subject of the dispute. Spain contends that the dispute mainly relates to sovereignty issues; that Canada has violated international law by seeking to apply its legislation against a third State (Spain) and by exercising its jurisdiction on the high seas over a ship flying the flag of that State. For Canada, on the other hand, the case arose out of and concerns conservation and management measures taken by it with respect to Spanish vessels fishing in the regulatory area of the Northwest Atlantic Fisheries Organization and the enforcement of such measures.
After examining Spain's Application, as well as the written and oral pleadings presented by the Parties, the Court finds that "the essence of the dispute" is whether the acts of Canada on the high seas, in relation to the pursuit, arrest and detention of the Estai on the basis of certain enactments and regulations adopted by Canada, violated Spain's rights under international law and require reparation.
The Court must further establish whether the reservation contained in Canada's declaration applies or not to the dispute as thus characterized. It examines in detail the words used in the reservation and interprets them "in a natural and reasonable way, having due regard to the intention of [Canada] at the time when it accepted the compulsory jurisdiction of the Court". In doing so, the Court finds inter alia that the issue of the lawfulness of the Canadian acts, on which Spain insists, is an issue concerning the merits, which has no relevance for the interpretation of Canada's declaration and the consequent decision on the Court's jurisdiction.
The Court concludes that the dispute between the Parties, as identified above, constitutes a dispute "arising out of" and "concerning" conservation and management measures taken by Canada with respect to vessels fishing in the Northwest Atlantic Fisheries Organization's Regulatory Area" and "the enforcement of such measures". It follows that the dispute comes within the terms of the reservation contained in Canada's declaration. The Court consequently has no jurisdiction to deal with the merits of the case.
For further information, contact Arthur Witteveen, Secretary of the Court (tel: 31-70-302-2336) or Mrs. Laurence Blairon, Information Officer (tel: 31-70-302-2337).
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