in the Application:
"The Federal Republic of Germany asks the Court to adjudge and declare:
(a) That the unilateral extension by Iceland of its zone of exclusive fisheries jurisdiction to 50 nautical miles from the present baselines, to be effective from 1 September 1972, which has been decided upon by the Parliament (Althing) and the Government of Iceland and communicated by the Minister for Foreign Affairs of Iceland to the Federal Republic of Germany by aide-memoire handed to its Ambassador in Reykjavik on 24 February 1972, would have no basis in international law and could therefore not be opposed to the Federal Republic of Germany and to its fishing vessels.
(b) That if Iceland, as a coastal State specially dependent on coastal fisheries, establishes a need for special fisheries conservation measures in the waters adjacent to its coast but beyond the exclusive fisheries zone provided for by the Exchange of Notes of 1961, such conservation measures, as far as they would affect fisheries of the Federal Republic of Germany, may not be taken, under international law, on the basis of a unilateral extension by Iceland of its fisheries jurisdiction, but only on the basis of an agreement between the Federal Republic of Germany and Iceland concluded either bilaterally or within a multilateral framework."
in the Memorial:
"The Federal Republic of Germany respectfully requests the Court to adjudge and declare:
That the Court has full jurisdiction to entertain the Application submitted by the Federal Republic of Germany to the Court on 5 June 1972 and to deal with the merits of this case."
At the public hearing on 8 January 1973, the following submission was presented by the Agent for the Federal Republic of Germany:
"On behalf of the Government of the Federal Republic of Germany I therefore respectfully request the Court to adjudge and declare:
That the Court has full jurisdiction to entertain the Application submitted by the Federal Republic of Germany on 5 June 1972 and to deal with the merits of the case."
"Those documents deal with the background and termination of the agreement recorded in the Exchange of Notes of 19 July 1961, and with the changed circumstances resulting from the ever-increasing exploitation of the fishery resources in the seas surrounding Iceland."
The letter concluded by saying:
"After the termination of the agreement recorded in the Exchange of Notes of 1961, there was on 5 June 1972 no basis under the Statute for the Court to exercise jurisdiction in the case to which the Government of the Federal Republic refers.
The Government of Iceland, considering that the vital interests of the people of Iceland are involved, respectfully informs the Court that it is not willing to confer jurisdiction on the Court in any case involving the extent of the fishery limits of Iceland, and specifically in the case sought to be instituted by the Government of the Federal Republic of Germany on 5 June 1972.
Having regard to the foregoing, an Agent will not be appointed to represent the Government of Iceland."
In a telegram to the Court dated 4 December 1972, the Minister for Foreign Affairs of Iceland stated that the position of the Government of Iceland was unchanged.
"the Federal Republic of Germany only accepted the jurisdiction of the Court by its declaration of 29 October 1971, transmitted to the Registrar on 22 November 1971, after it had been notified by the Government of Iceland, in its aide-memoire of 31 August 1971, that the object and purpose of the provision for recourse to judicial settlement of certain matters had been fully achieved".
By mentioning this fact, the Minister for Foreign Affairs of Iceland seemed to suggest that the timing of the declaration of the Federal Republic of Germany of 29 October 1971, deposited with the Registrar on 22 November 1971, may have had some effect on the binding force of the agreement contained in the Exchange of Notes of 19 July 1961 or on the right of access to the Court of the Federal Republic of Germany. As to the first point, it is clear that the binding force of the agreement between the two Governments, which is to be examined in the present Judgment, bears no relation to the date on which the declaration required by the Security Council resolution of 15 October 1946 was deposited with the Registrar: the former is designed to establish the jurisdiction of the Court over a particular kind of dispute; the latter provides for access to the Court of States which are not parties to the Statute. As to the second point (i.e., the question of the Federal Republic’s right of access to the Court), according to the Security Council resolution, a declaration, which may be either particular or general, must be filed by the State which is not a party to the Statute, previously to its appearance before the Court. This was done. Article 36 of the Rules of Court provides as follows:
"When a State which is not a party to the Statute is admitted by the Security Council, in pursuance of Article 35 of the Statute, to appear before the Court, it shall satisfy the Court that it has complied with any conditions that may have been prescribed for its admission: the document which evidences this compliance shall be filed in the Registry at the same time as the notification of the appointment of the agent."
The appointment of the Agent of the Federal Republic in the present case was notified by the letter dated 26 May 1972, received in the Registry on 5 June 1972, whereas the declaration of the Federal Republic of Germany had been previously filed, on 22 November 1971.
"The Government of the Republic of Iceland shall continue to work for the implementation of the Althing Resolution of 5 May 1959, regarding the extension of the fishery jurisdiction of Iceland. However, it shall give the Government of the Federal Republic of Germany six months’ notice of any such extension; in case of a dispute relating to such an extension, the matter shall, at the request of either party, be referred to the International Court of Justice";
and on the declaration, under the Security Council resolution of 15 October 1946, made by the Federal Republic of Germany on 29 October 1971 and deposited with the Registrar on 22 November 1971. In its resolution of 5 May 1959 the Althing (the Parliament of Iceland) had declared:
"... that it considers that Iceland has an indisputable right to fishery limits of 12 miles, that recognition should be obtained of Iceland’s right to the entire continental shelf area in conformity with the policy adopted by the Law of 1948, concerning the Scientific Conservation of the Continental Shelf Fisheries and that fishery limits of less than 12 miles from base-lines around the country are out of the question".
"The Federal Government regrets this one-sided procedure extremely and is compelled to express its profound disappointment about the fact that the Icelandic Government has now taken the above-mentioned unilateral steps without having accepted the suggestions of the Federal Government previously to seek an agreement on fishing off the Icelandic coast by friendly negotiations with the Federal Government or other interested nations."
The Note expressed the hope that the Government of Iceland would be prepared to enter into multilateral negotiations and specifically suggested that such negotiations should have as their aim to bring about an agreement that would take into account "the principles of international law" and "the historic interests of all nations concerned".
"It is necessary that the Coastal State can unilaterally include an adjacent area in its fishing zone, subject to arbitration in case of disagreement."
In its reply on 7 October 1959 the Government of the Federal Republic of Germany contradicted the view that a coastal State could unilaterally include an adjacent area in its fishing zone, subject to arbitration in case of disagreement. Direct negotiations between the parties appear to have been suspended until the conclusion of the then pending and extensive negotiations between the Government of the United Kingdom and the Government of Iceland, which culminated in an Anglo-Icelandic Exchange of Notes on 11 March 1961. Negotiations between the Governments of the Federal Republic and Iceland were, however, resumed immediately thereafter.
"Reference to the International Court of Justice. It is only fair to say that it should not be necessary for the Federal Republic to insist on this point for the obvious reason that if Iceland were to extend the limits beyond 12 miles the U.K. Government certainly would refer that matter to the Court, on its own initiative."
According to the Memorial of the Federal Republic, this attempt was however resisted: the German delegation insisted on the inclusion of the same provision as in the Anglo-Icelandic Exchange of Notes of 11 March 1961, which, in view of the possibility of recourse to the Court and the terms of Article 102 of the Charter of the United Nations, provided for registration of the Exchange of Notes with the Secretariat of the United Nations. By 6 July 1961, agreement had been reached on the terms of the Notes to be exchanged, including the Compromissory clause and provision for registration, and they were exchanged on 19 July 1961; the agreement thus concluded was registered by the Government of Iceland with the Secretariat of the United Nations on 27 September 1961.
"In particular, an undertaking for judicial settlement cannot be considered to be of a permanent nature. There is nothing in that situation, or in any general rule of contemporary international law, to justify any other view."
This observation, directed against the Court’s jurisdiction, appears to rest on the following chain of reasoning: (1) inasmuch as the compromissory clause contains no provision for termination, it could be deemed to be of a permanent nature; but (2) a compromissory clause cannot be of a permanent nature; therefore (3) it must be subject to termination by giving adequate notice. This reasoning appears to underlie the observation of the Government of Iceland in its aide-memoire of 31 August 1971 to the effect that:
"In the opinion of the Icelandic Government... the object and purpose of the provision for recourse to judicial settlement of certain matters envisaged in the passage quoted above [i.e., the compromissory clause] have been fully achieved."
(a) those obligations of a transitory character contained in paragraphs 3 and 4, by which the fishing vessels of the other contracting party were allowed to fish for a transitional period within areas of the outer 6 miles of the 12-mile fishery zone. Those provisions clearly have attained their objective and may be considered to have expired on 10 March 1964;
(b) other obligations, contained in paragraphs 1, 2 and 5, which do not have a transitory character since for them, in contrast to paragraphs 3 and 4, the parties did not provide any limitation ratione temporis.
"The Government of Iceland, considering that the vital interests of the people of Iceland are involved, respectfully informs the Court that it is not willing to confer jurisdiction on the Court in any case involving the extent of the fishery limits of Iceland..."
In this same connection, the resolution adopted by the Althing on 15 February 1972 had contained a paragraph in these terms:
"That the Governments of the United Kingdom and the Federal Republic of Germany be again informed that because of the vital interests of the nation and. owing to changed circumstances the Notes concerning fishery limits exchanged in 1961 are no longer applicable and that their provisions do not constitute an obligation for Iceland."
by fourteen votes to one,
finds that it has jurisdiction to entertain the Application filed by the Government of the Federal Republic of Germany on 5 June 1972 and to deal with the merits of the dispute.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this second day of February, one thousand nine hundred and seventy-three, in three copies, of which one will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Germany and to the Government of the Republic of Iceland, respectively.