in the Application :
"The United Kingdom asks the Court to adjudge and declare:
(a) That there is no foundation in international law for the claim by Iceland to be entitled to extend its fisheries jurisdiction by establishing a zone of exclusive fisheries jurisdiction extending to 50 nautical miles from the baselines hereinbefore referred to; and that its claim is therefore invalid; and
(b) that questions concerning the conservation of fish stocks in the waters around Iceland are not susceptible in international law to regulation by the unilateral extension by Iceland of its exclusive fisheries jurisdiction to 50 nautical miles from the aforesaid baselines but are matters that may be regulated, as between Iceland and the United Kingdom, by arrangements agreed between those two countries, whether or not together with other interested countries and whether in the form of arrangements reached in accordance with the North-East Atlantic Fisheries Convention of 24 January 1959, or in the form of arrangements for collaboration in accordance with the Resolution on Special Situations relating to Coastal Fisheries of 26 April 1958, or otherwise in the form of arrangements agreed between them that give effect to the continuing rights and interests of both of them in the fisheries of the waters in question."
in the Memorial :
"The Government of the United Kingdom submit to the Court that they are entitled to a declaration and Judgment that the Court has full jurisdiction to proceed to entertain the Application by the United Kingdom on the merits of the dispute."
"The Government of the United Kingdom contend
(a) that the Exchange of Notes of 11 March, 1961, always has been and remains now a valid agreement ;
(b) that, for the purposes of Article 36 (1) of the Statute of the Court, the Exchange of Notes of 11 March, 1961, constitutes a treaty or convention in force, and a submission by both parties to the jurisdiction of the Court in case of a dispute in relation to a claim by Iceland to extend its fisheries jurisdiction beyond the limits agreed in that Exchange of Notes;
(c) that, given the refusal by the United Kingdom to accept the validity of unilateral action by Iceland purporting to extend its fisheries limits (as manifested in the Aides-Memoires of the Government of Iceland of 31 August, 1971, and 24 February, 1972, the Resolution of the Althing of 15 February, 1972, and the Regulations of 14 July, 1972, issued pursuant to that Resolution), a dispute exists between Iceland and the United Kingdom which constitutes a dispute within the terms of the Compromissory clause of the Exchange of Notes of 11 March, 1961 ;
(d) that the purported termination by Iceland of the Exchange of Notes of 11 March, 1961, so as to oust the jurisdiction of the Court is without legal effect; and
(e) that, by virtue of the Application Instituting Proceedings that was filed with the Court on 14 April, 1972, the Court is now seised of jurisdiction in relation to the said dispute.
Accordingly, the Government of the United Kingdom submit to the Court that they are entitled to a declaration and judgment that the Court has full jurisdiction to proceed to entertain the Application by the United Kingdom on the merits of the dispute."
"Those documents deal with the background and termination of the agreement recorded in the Exchange of Notes of 11 March 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 14 April 1972 no basis under the Statute for the Court to exercise jurisdiction in the case to which the United Kingdom 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 United Kingdom of Great Britain and Northern Ireland on 14 April 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.
that a State objecting to the jurisdiction should "set out the facts and the law on which the objection is based", its submissions on the matter, and any evidence which it may wish to adduce. Nevertheless the Court, in examining its own jurisdiction, will consider those objections which might, in its view, be raised against its jurisdiction.
"The Icelandic Government will continue to work for the implementation of the Althing Resolution of May 5, 1959, regarding the extension of fisheries jurisdiction around Iceland, but shall give to the United Kingdom Government six months’ notice of such extension, and, in case of a dispute in relation to such extension, the matter shall, at the request of either party, be referred to the International Court of Justice."
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 Icelandic Government reserves its right to extend fisheries jurisdiction in Icelandic waters in conformity with international law. Such extension would, however, be based either on an agreement (bilateral or multilateral) or decisions of the Icelandic Government which would be subject to arbitration at the request of appropriate parties."
For its part, the Government of the United Kingdom preferred that disputes be referred to the International Court of Justice. Equally, the representatives of Iceland, while having indicated their preference for arbitration, expressed in later meetings, and specifically on 4 November 1960, their willingness to accept the International Court of Justice as the appropriate forum. Subsequent exchanges of drafts consistently contained a specific reference to the Court, which was finally included in the 1961 Exchange of Notes. In placing the terms of the proposed Exchange of Notes before the Althing on 28 February 1961, the Government of Iceland presented a memorandum which included the following statement concerning this point:
"The Government declares that it will continue to work for the implementation of the Althing resolution of 5 May, 1959, regarding the extensions of the fisheries jurisdiction around Iceland. Such an extension would, however, be notified to the British Government six months in advance, and if a dispute arises in connection with these measures, this shall be referred to the International Court of Justice, should either one of the parties request it." (Emphasis added.)
"The Icelandic Government will continue to work for the implementation of the Althing Resolution of May 5, 1959, regarding the extension of fisheries jurisdiction around Iceland. Six months notice will be given of the application of any such extension and in case of dispute the measures will be referred to the International Court of Justice." (Emphasis added.)
The delegation of the United Kingdom proposed to insert in the last phrase of this text the words "at the request of either party" in order to make it clear that the jurisdiction of the Court could be invoked by means of a unilateral application and need not require a joint submission by both parties. This however was not immediately agreed to by the Icelandic delegation. In a draft exchange of Notes put forward by the Government of Iceland on 10 December 1960 it was proposed that the assurance sought by the Government of the United Kingdom should be couched in the following terms :
"Icelandic Government will continue to work for implementation of the Althing Resolution of May 5, 1959, regarding extension of fisheries jurisdiction around Iceland. Six months’ notice will be given of application of any such extension and in case of dispute the measures will, at the request of the several parties, be referred to the International Court of Justice." (Emphasis added.)
This proposal was not accepted by the Government of the United Kingdom, which on 16 December 1960 submitted a new text of the assurance insisting on the words "at the request of either party". This text was finally agreed to by Iceland on 13 February 1961 and the words "at the request of either party" thus appear in the Compromissory clause of the Exchange of Notes.
"... the assurance should be set out in an Exchange of Notes expressly stated to constitute an Agreement which would, in Her Majesty’s Government’s view, be the only way of binding both parties to accept the jurisdiction of the International Court of Justice in the event of any dispute arising over extensions of fishery jurisdiction. We regard this as essential if we are going to achieve stability in our future fishery relations as we earnestly desire."
In a letter addressed by the Secretary of State for Foreign Affairs of the United Kingdom to the Foreign Minister of Iceland on 21 December 1960 it was also considered—
"... essential that the terms of the Assurance that any dispute on future extensions of fishery jurisdiction beyond 12 miles would be referred to the International Court of Justice, should be embodied in a form which is an Agreement registered with the Secretariat of the United Nations in accordance with the provisions of the Charter. Article 102 of the Charter specifically provides that unless so registered the Agreement cannot be invoked before any organ of the United Nations.’
This proposal was finally accepted by the Icelandic Government, and the last sentence of the Note of 11 March 1961 addressed by the Foreign Minister of Iceland to the British Ambassador reads as follows:
"I have the honour to suggest that this Note and Your Excellency’s reply thereto, confirming that its contents are acceptable to the United Kingdom Government, shall be registered with the Secretary-General of the United Nations in accordance with Article 102 of the United Nations Charter...
This was agreed to in the Note sent on the same date by the British Ambassador in Reykjavik to the Foreign Minister of Iceland. In its memorandum to the Althing of 28 February 1961 the Government of Iceland stated:
"Finally it is provided in the Note that it, together with the reply of the British Government, where the British Government confirms its contents, be registered with the Secretary-General of the United Nations. In Article 102 of the United Nations Charter it is stated that only agreements that are so registered can be handled by the International Court of Justice, should a dispute arise concerning their implementation. This provision is a direct consequence of what has been said about reference of the matter to the International Court of Justice."
The Exchange of Notes was registered by the Government of Iceland with the Secretariat of the United Nations on 8 June 1961.
"The 1961 Exchange of Notes took place under extremely difficult circumstances, when the British Royal Navy had been using force to oppose the 12-mile fishery limit established by the Icelandic Government in 1958."
This statement could be interpreted as a veiled charge of duress purportedly rendering the Exchange of Notes void ab initio, and it was dealt with as such by the United Kingdom in its Memorial. There can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void. It is equally clear that a court cannot consider an accusation of this serous nature on the basis of a vague general charge unfortified by evidence in its support. The history of the negotiations which led up to the 1961 Exchange of Notes reveals that these instruments were freely negotiated by the interested parties on the basis of perfect equality and freedom of decision on both sides. No fact has been brought to the attention of the Court from any quarter suggesting the slightest doubt on this matter.
"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-mémoire 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."
"... four main points:
(1) Britain recognises immediately the 12 mile fishery zone of Iceland.
(2) Britain recognises important changes in the baselines in four places around the country, which extends the fishery zone by 5065 square kilometres.
(3) British ships will be permitted to fish within specified areas between the 6 and 12 mile limits for a limited period each year during the next three years.
(4) The Government of Iceland declares that it will continue to work for the implementation of the parliamentary resolution of 5 May, 1959, regarding the extension of the fisheries jurisdiction around Iceland and that any dispute on actions that may be taken, will be referred to the International Court of Justice."
Undoubtedly certain of these provisions, such as those concerning fishing in designated areas during a period of three years, had a transitory character and may be considered to have become executed. But in contrast there are other provisions which do not possess that same transitory character. The compromissory clause is an instance.
"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 United Kingdom of Great Britain and Northern Ireland on 14 April 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 United Kingdom of Great Britain and Northern Ireland and to the Government of the Republic of Iceland, respectively.