(Spain v. Canada)
Judgment of 4 December 1998
On 28 March 1995, Spain filed an application against Canada following the boarding of a Spanish fishing boat, the Estai, by a Canadian patrol boat. The incident occurred on the high seas on 9 March 1995. The boarding was carried out in pursuance of the Canadian Coastal Fisheries Protection Act (as amended in May 1994) and of its implementing regulations. As a basis of the Court's jurisdiction, Spain invoked the declarations of both States under Article 36, paragraph 2, of the Statute of the Court. On the merits, Spain argued that Canada had violated the principles of international law concerning freedom of navigation and freedom of fishing on the high seas. Spain also maintained that Canada infringed the right of exclusive jurisdiction of the flag State over its ships on the high seas.
Canada contested the Court's jurisdiction on the basis of a reservation which it had included in its declaration of acceptance under Article 36, paragraph 2, of the Statute of the Court, when the latter was amended in May 1994 in connection with reforms of its Coastal Fisheries Protection Act. These reforms extended the area of application of the Act in order to include the Regulatory Area of the Northwest Atlantic Fisheries Organization (NAFO). In its amended declaration under Article 36, paragraph 2, of the Statute, 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". Canada argued that the dispute referred to in the Spanish Application concerned matters covered by the reservation.
In its judgment of 4 December 1998 the Court accepted the Canadian position and decided that it had no jurisdiction to hear the case. The Court noted that the Parties differed on the subject of the dispute. While Spain contended that the dispute essentially concerned questions of state sovereignty (according to Spain Canada had violated Spanish sovereignty by applying its national legislation against another State and by exercising its jurisdiction on the high seas over a ship flying the flag of that State), for Canada the case mainly related to measures of conservation and management in the NAFO Regulatory Area and to the enforcement of such measures. The Court held that the essence of the dispute between the Parties was whether the Canadian measures violated Spain's rights under international law and require reparation.
The Court addressed the question of whether the reservation contained in Canada's declaration applied or not to the dispute as thus characterized. In response to different methods for the interpretation of reservations contained in declarations under Article 36, paragraph 2, of the Statute of the Court suggested by the Parties, the Court interpreted the words used in the reservation "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, it found that the amendments made by Canada to the Coastal Fisheries Protection Act constituted "conservation and management measures" in the sense in which that expression is commonly understood in international law and practice and has been used in the Canadian reservation.
The Court held that the the dispute between the Parties had its origin in the amendments made by Canada to its coastal fisheries protection legislation and regulations and in the pursuit, boarding and seizure of the Estai which resulted therefrom. It thus concluded that the dispute was "arising out of" and "concerning" "conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area". Therefore, the dispute came within the terms of the reservation contained in paragraph 2 (d) of the Canadian declaration of 10 May 1994. The Court consequently had no jurisdiction to adjudicate upon it.
President Schwebel and Judges Oda, Koroma and Kooijmans appended separate opinions to the Judgment. Vice-President Weeramantry, Judges Bedjaoui, Ranjeva and Vereshchetin, and Judge ad hoc Torres Bernárdez appended dissenting opinions. Vice-President Weeramantry considered it to be a matter for the Court's discretion as to whether a dispute like the one submitted by Spain falls within the general part of the declaration (which gives the Court jurisdiction over all disputes arising after the declaration), or under the reservation relating to conservation measures. Where violations of basic principles of international law, extending even to violation of Charter principles are alleged, Vice-President Weeramantry was of the view that the dispute falls within the general referral rather than the particular exception. According to Judge Bedjaoui a declarant State has obligations vis-à-vis the clause "system" and its participants, current or potential, and also to the party to whom that clause is ultimately addressed, namely the International Court. While the possibility of withdrawing from the system remained fully open to it, it was not acceptable that a declarant State should be allowed to distort or pervert it, or compromise its existence or operation while remaining within it. He believed that the amendment of the reservation in 1994 gave every reason to think that Canada wished to protect itself in advance against any judicial action, so as to be completely free to follow a particular line of conduct, over whose legality it had certain doubts. Canada could not do homage to international justice by submitting itself to the latter's verdict in respect of those acts where it considers that it has behaved correctly, while shunning that same justice in the case of those acts whose legality it fears may be questionable. In Judge Ranjeva's view, Canada's objections were not of an exclusively preliminary character. Judge Vereshchetin took the view that the scope of the dispute between the Parties was much broader than the pursuit and arrest of the Estai and the consequences thereof. He found that the Court had no good reason for redefining and narrowing the subject-matter of the dispute presented by the Applicant. Judge Vereshchetin also supported the view that reservations and conditions must not undermine the very raison d'être of the optional clause system. Judge Torres Bernárdez also dissented from the judgment arguing that the Court had full jurisdiction to adjudicate on the dispute.