Current Developments: Jurisprudence of the International Court of Justice (Case Note: Fisheries Jurisdiction (Spain v. Canada) Judgment of 4 December 1998)
13 Pages Posted: 3 Jun 2009 Last revised: 15 Jul 2013
Date Written: June 3, 2009
By a majority of 12 votes to 5, the ICJ in this case declined jurisdiction in respect of a dispute brought before it by Spain in 1995. Spain had instituted proceedings following the arrest of the Spanish fishing vessel Estai by the Canadian Navy 245 nautical miles off New Foundland on the High Seas. It had requested the Court to declare that the seizure was illegal, and Canadian legislation providing for the extraterritorial exercise of jurisdiction on the High Seas not opposable to Spain. Canada had challenged the Court’s jurisdiction, relying on subparagraph 2(d) of a declaration which excludes from the Court’s compulsory jurisdiction "disputes arising out of or concerning conservation and management measures taken by Canada" in the Northwest Atlantic. The Court in its judgment first determined the subject-matter of the dispute, which had been characterized differently by the parties. Adopting Canada’s submissions, it held that the question was whether Canada’s coastal fisheries protection legislation, and the resulting actions taken against the Estai, violated Spain’s rights under international law. It thereby restricted the subject-matter of the dispute to the actual measures taken against the Estai rejecting Spain’s broader application.
The Court then analyzed in considerable depth whether the dispute fell within the scope of subparagraph 2(d) of the Canadian reservation. Spain had argued that the measures taken by Canada were in violation of international law and that this fact had to be taken into account in the interpretation of the reservation. Rejecting this argument, the Court repeatedly stressed the need to strictly distinguish between the compatibility of certain acts with international law on the one hand, and the acceptance of jurisdiction on the other. It also held that despite their alleged illegality under international law, the Canadian actions could be seen as enforcement of "conservation and management measures" within the meaning of the reservation. Against the strongly worded opposition of five of its members - most notably Judge and former President Bedjaoui - the majority of the Court therefore found that it lacked jurisdiction to entertain the dispute.
The majority’s decision seems in line with the generally cautious approach taken by the Court vis-à-vis questions of consent. While the strict distinction between "legality" and "jurisdiction" is convincing from a dogmatic point of view, it nevertheless reveals the inherent weaknesses of the system of international jurisdiction still based primarily on consent. The judgment thus leaves the international lawyer with "a heavy heart" (Sep. Op. Kooijmans, para. 1).
Keywords: International Court of Justice, law of fisheries, optional clause, reservations, interpretation of unilateral acts
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