You are here: Publications Archive World Court Digest
| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.3. | The Optional Clause |
| 2.3.3. | Reservations |
¤
Fisheries Jurisdiction
(Spain v. Canada)
Jurisdiction of the Court
Judgment of 4 December 1998
I.C.J. Reports 1998, 9. 432
[pp. 452-456] 42. Spain and Canada have both recognized that States enjoy a wide liberty in formulating, limiting, modifying and terminating their declarations of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute. They equally both agree that a reservation is an integral part of a declaration accepting jurisdiction.
43. However, different views were proffered as to the rules of international law applicable to the interpretation of reservations to optional declarations made under Article 36, paragraph 2, of the Statute. In Spain's view, such reservations were not to be interpreted so as to allow reserving States to undermine the system of compulsory jurisdiction. Moreover, the principle of effectiveness meant that a reservation must be interpreted by reference to the object and purpose of the declaration, which was the acceptance of the compulsory jurisdiction of the Court. Spain did not accept that it was making the argument that reservations to the compulsory jurisdiction of the Court should be interpreted restrictively; it explained its position in this respect in the following terms:
"It is said that Spain argues for the most restrictive scope permitted of reservations, namely a restrictive interpretation of them ... This is not true. Spain supports the most limited scope permitted in the context of observing of the general rule of interpretation laid down in Article 31 of the Vienna Convention on the Law of Treaties."
Spain further contended that the contra proferentem rule, under which, when a text is ambiguous, it must be construed against the party who drafted it, applied in particular to unilateral instruments such as declarations of acceptance of the compulsory jurisdiction of the Court and the reservations which they contained. Finally, Spain emphasized that a reservation to the acceptance of the Court's jurisdiction must be interpreted so as to be in conformity with, rather than contrary to, the Statute of the Court, the Charter of the United Nations and general international law.
For its part, Canada emphasized the unilateral nature of such declarations and reservations and contended that the latter were to be interpreted in a natural way, in context and with particular regard for the intention of the reserving State.
44. The Court recalls that the interpretation of declarations made under Article 36, paragraph 2, of the Statute, and of any reservations they contain, is directed to establishing whether mutual consent has been given to the jurisdiction of the Court.
It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: "This jurisdiction only exists within the limits within which it has been accepted" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 23). Conditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State's acceptance of the compulsory jurisdiction of the Court. There is thus no reason to interpret them restrictively. All elements in a declaration under Article 36, paragraph 2, of the Statute which, read together, comprise the acceptance by the declarant State of the Court's jurisdiction, are to be interpreted as a unity, applying the same legal principles of interpretation throughout.
45. This is true even when, as in the present case, the relevant expression of a State's consent to the Court's jurisdiction, and the limits to that consent, represent a modification of an earlier expression of consent, given within wider limits. An additional reservation contained in a new declaration of acceptance of the Court's jurisdiction, replacing an earlier declaration, is not to be interpreted as a derogation from a more comprehensive acceptance given in that earlier declaration; thus, there is no reason to interpret such a reservation restrictively. Accordingly, it is the declaration in existence that alone constitutes the unity to be interpreted, with the same rules of interpretation applicable to all its provisions, including those containing reservations.
46. A declaration of acceptance of the compulsory jurisdiction of the Court, whether there are specified limits set to that acceptance or not, is a unilateral act of State sovereignty. At the same time, it establishes a consensual bond and the potential for a jurisdictional link with the other States which have made declarations pursuant to Article 36, paragraph 2, of the Statute, and "makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance" (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, I.C.J. Reports 1998, para. 25). The regime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties (ibid., para. 30). Spain has suggested in its pleadings that "[t]his does not mean that the legal rules and the art of interpreting declarations (and reservations) do not coincide with those governing the interpretation of treaties". The Court observes that the provisions of that Convention may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court's jurisdiction.
47. In the event, the Court has in earlier cases elaborated the appropriate rules for the interpretation of declarations and reservations. Every declaration "must be interpreted as it stands, having regard to the words actually used" (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105). Every reservation must be given effect "as it stands" (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 27). Therefore, declarations and reservations are to be read as a whole. Moreover, "the Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text." (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 104.)
48. At the same time, since a declaration under Article 36, paragraph 2, of the Statute, is a unilaterally drafted instrument, the Court has not hesitated to place a certain emphasis on the intention of the depositing State. Indeed, in the case concerning Anglo-Iranian Oil Co., the Court found that the limiting words chosen in Iran's declaration were "a decisive confirmation of the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court" (ibid., p. 107).
49. The Court will thus interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court. The intention of a reserving State may be deduced not only from the text of the relevant clause, but also from the context in which the clause is to be read, and an examination of evidence regarding the circumstances of its preparation and the purposes intended to be served. In the Aegean Sea Continental Shelf case, the Court affirmed that it followed clearly from its jurisprudence that in interpreting the contested reservation
"regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and it was with that jurisprudence in mind that the Court asked the Greek Government to furnish it with any available evidence of explanations of the instrument of accession given at that time" (Aegean Sea Continental Shelf, Judgment, I.C.J Reports 1978, p. 29, para. 69).
In the present case the Court has such explanations in the form of Canadian ministerial statements, parliamentary debates, legislative proposals and press communiqués.
50. Where, moreover, an existing declaration has been replaced by a new declaration which contains a reservation, as in this case, the intentions of the Government may also be ascertained by comparing the terms of the two instruments.
51. The contra proferentem rule may have a role to play in the interpretation of contractual provisions. However, it follows from the foregoing analysis that the rule has no role to play in this case in interpreting the reservation contained in the unilateral declaration made by Canada under Article 36, paragraph 2, of the Statute.
52. The Court was addressed by both Parties on the principle of effectiveness. Certainly, this principle has an important role in the law of treaties and in the jurisprudence of this Court; however, what is required in the first place for a reservation to a declaration made under Article 36, paragraph 2, of the Statute, is that it should be interpreted in a manner compatible with the effect sought by the reserving State.
53. Spain has contended that, in case of doubt, reservations contained in declarations are to be interpreted consistently with legality and that any interpretation which is inconsistent with the Statute of the Court, the Charter of the United Nations or with general international law is inadmissible. Spain draws attention to the following finding of the Court in the Right of Passage over Indian Territory case, where the Court had to rule on the compatibility of a reservation with the Statute:
"It is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it." (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 142.)
Spain argues that, to comply with these precepts, it is necessary to interpret the phrase "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area ... and the enforcement of such measures" to refer only to measures which, since they relate to areas of the high seas, must come within the framework of an existing international agreement or be directed at stateless vessels. It further argues that an enforcement of such measures which involves a recourse to force on the high seas against vessels flying flags of other States could not be consistent with international law and that this factor too requires an interpretation of the reservation different from that given to it by Canada.
54. Spain's position is not in conformity with the principle of interpretation whereby a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is to be interpreted in a natural and reasonable way, with appropriate regard for the intentions of the reserving State and the purpose of the reservation. In point of fact, reservations from the Courts jurisdiction may be made by States for a variety of reasons; sometimes precisely because they feel vulnerable about the legality of their position or policy. Nowhere in the Courts case-law has it been suggested that interpretation in accordance with the legality under international law of the matters exempted from the jurisdiction of the Court is a rule that governs the interpretation of such reservations:
"Declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 418,
para. 59.)
The holding of the Court relied on by Spain in the Right of Passage over Indian Territory case, which was concerned with a possible retroactive effect of a reservation, does not detract from this principle. The fact that a State may lack confidence as to the compatibility of certain of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations.
55. There is a fundamental distinction between the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law. The former requires consent. The latter question can only be reached when the Court deals with the merits, after having established its jurisdiction and having heard full legal argument by both parties.
56. Whether or not States accept the jurisdiction of the Court, they remain in all cases responsible for acts attributable to them that violate the rights of other States. Any resultant disputes are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties.
[pp. 456-457] 59. The Court has already pointed out (see paragraph 14 above) that the current Canadian declaration replaced a previous one, dated 10 September 1985. The new declaration differs from its predecessor in one respect only: the addition, to paragraph 2, of a subparagraph (d) containing the reservation in question. It follows that this reservation is not only an integral part of the current declaration but also an essential component of it, and hence of the acceptance by Canada of the Court's compulsory jurisdiction.
60. As regards the objectives which the reservation was intended to achieve, the Court is bound to note, in view of the facts as summarized above (paragraphs 14 et seq.), the close links between Canada's new declaration and its new coastal fisheries protection legislation. The new declaration was deposited with the Secretary-General on 10 May 1994, that is to say the very same day that Bill C-29 was submitted to the Canadian Parliament; moreover, the terms in which Canada accepted the compulsory jurisdiction of the Court on that day echo those of the Bill then under discussion. Furthermore, it is evident from the parliamentary debates and the various statements of the Canadian authorities that the purpose of the new declaration was to prevent the Court from exercising its jurisdiction over matters which might arise with regard to the international legality of the amended legislation and its implementation. Thus on 10 May 1994 Canada issued a News Release on "Foreign overfishing", explaining its policy in this field and adding that:
"Canada has today amended its acceptance of the compulsory jurisdiction of the International Court of Justice in the Hague to preclude any challenge which might undermine Canada's ability to protect the stocks. This is a temporary step in response to an emergency situation."
Further, on 12 May 1994, the Canadian Minister for Foreign Affairs made the following statement in the Senate:
"As you know, to protect the integrity of this legislation, we registered a reservation to the International Court of Justice, explaining that this reservation would of course be temporary ...".
[pp. 457-458] 61. The Court recalls that subparagraph 2 (d) of the Canadian declaration excludes the Courts jurisdiction in the following terms:
"disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures" (see paragraph 14 above).
Canada contends that the dispute submitted to the Court is precisely of the kind envisaged by the cited text; it falls entirely within the terms of the subparagraph and the Court accordingly has no jurisdiction to entertain it.
For Spain, on the other hand, whatever Canada's intentions, they were not achieved by the words of the reservation, which does not cover the dispute; thus the Court has jurisdiction. In support of this view Spain relies on four main arguments: first, the dispute which it has brought before the Court falls outside the terms of the Canadian reservation by reason of its subject-matter; secondly, the amended Coastal Fisheries Protection Act and its implementing regulations cannot, in international law, constitute "conservation and management measures"; thirdly, the reservation covers only "vessels" which are stateless or flying a flag of convenience; and fourthly, the pursuit, boarding and seizure of the Estai cannot be regarded in international law as "the enforcement of ..." conservation and management "measures". The Court will examine each of these arguments in turn.
62. The Court will begin by pointing out that, in excluding from its jurisdiction "disputes arising out of or concerning" the conservation and management measures in question and their enforcement, the reservation does not reduce the criterion for exclusion to the "subject-matter" of the dispute. The language used in the English version - "disputes arising out of or concerning" - brings out more clearly the broad and comprehensive character of the formula employed. The words of the reservation exclude not only disputes whose immediate "subject-matter" is the measures in question and their enforcement, but also those "concerning" such measures and, more generally, those having their "origin" in those measures ("arising out of") - that is to say, those disputes which, in the absence of such measures, would not have come into being. Thus the scope of the Canadian reservation appears even broader than that of the reservation which Greece attached to its accession to the General Act of 1928 ("disputes relating to the territorial status of Greece"), which the Court was called upon to interpret in the case concerning the Aegean Sea Continental Shelf (I.C.J. Reports 1978, p. 34, para. 81 and p. 36, para. 86).
[pp. 460-463] 66. The Court need not linger over the question whether a "measure" may be of a "legislative" nature. As the Parties have themselves agreed, in its ordinary sense the word is wide enough to cover any act, step or proceeding, and imposes no particular limit on their material content or on the aim pursued thereby. Numerous international conventions include "laws" among the "measures" to which they refer (see for example, as regards "conservation and management measures", Articles 61 and 62 of the 1982 United Nations Convention on the Law of the Sea). There is no reason to suppose that any different treatment should be applied to the Canadian reservation, the text of which itself refers not to measures adopted by the executive but simply to "Canada", that is to say the State as a whole, of which the legislature is one constituent part. Moreover, as the Court has already pointed out (see paragraph 60), the purpose of the reservation was specifically to protect "the integrity" of the Canadian coastal fisheries protection legislation. Thus to take the contrary view would be to disregard the evident intention of the declarant and to deprive the reservation of its effectiveness.
67. The Court would further point out that, in the Canadian legislative system as in that of many other countries, a statute and its implementing regulations cannot be dissociated. The statute establishes the general legal framework and the regulations permit the application of the statute to meet the variable and changing circumstances through a period of time. The regulations implementing the statute can have no legal existence independently of that statute, while conversely the statute may require implementing regulations to give it effect.
68. The Court shares with Spain the view that an international instrument must be interpreted by reference to international law. However, in arguing that the expression "conservation and management measures" as used in the Canadian reservation can apply only to measures "in conformity with international law", Spain would appear to mix two issues. It is one thing to seek to determine whether a concept is known to a system of law, in this case international law, whether it falls within the categories proper to that system and whether, within that system, a particular meaning attaches to it: the question of the existence and content of the concept within the system is a matter of definition. It is quite another matter to seek to determine whether a specific act falling within the scope of a concept known to a system of law violates the normative rules of that system: the question of the conformity of the act with the system is a question of legality.
69. At this stage of the proceedings, the task of the Court is simply to determine whether it has jurisdiction to entertain the dispute. To this end it must interpret the terms of the Canadian reservation, and in particular the meaning attaching in the light of international law to the expression "conservation and management measures" as used in that reservation.
70. According to international law, in order for a measure to be characterized as a "conservation and management measure", it is sufficient that its purpose is to conserve and manage living resources and that, to this end, it satisfies various technical requirements.
It is in this sense that the terms "conservation and management measures" have long been understood by States in the treaties which they conclude. Notably, this is the sense in which "conservation and management measures" is used in paragraph 4 of Article 62 of the 1982 United Nations Convention on the Law of the Sea (see also 1923 Convention between the United States of America and Canada for the Preservation of the Halibut Fisheries of the Northern Pacific Ocean, especially Articles 1 and 2; 1930 Convention between the United States of America and Canada for the Preservation of the Halibut Fisheries of the Northern Pacific Ocean and Bering Sea, Arts. 1, 2 and 3; 1949 International Convention for the Northwest Atlantic Fisheries, Art. IV (2) and especially Art. VIII; 1959 North-East Atlantic Fisheries Convention, Art. 7; 1973 Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and the Belts, Art. I and especially Art. X. Cf. 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, Art. 2). The same usage is to be found in the practice of States. Typically, in their enactments and administrative acts, States describe such measures by reference to such criteria as: the limitation of catches through quotas; the regulation of catches by prescribing periods and zones in which fishing is permitted; and the setting of limits on the size of fish which may be caught or the types of fishing gear which may be used (see, among very many examples, Algerian Legislative Decree No. 94-13 of 28 May 1994, establishing the general rules relating to fisheries; Argentine Law No. 24922 of 6 January 1998, establishing the Federal Fishing Regime; Malagasy Ordinance No. 93-022 of 1993 regulating fishing and aquaculture; New Zealand Fisheries Act 1996; as well as, for the European Union, the basic texts formed by Regulation (EEC) No. 3760/92 of 20 December 1992, establishing a Community system for fisheries and aquaculture, and Regulation (EC) No. 894/97 of 29 April 1997, laying down certain technical measures for the conservation of fisheries resources. For NAFO practice, see its document entitled Conservation and Enforcement Measures (NAFO/FC/Doc. 96/1)). International law thus characterizes "conservation and management measures" by reference to factual and scientific criteria.
In certain international agreements (for example the United Nations Agreement on Straddling Stocks of 1995 and the "Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas" (FAO 1993), neither of which has entered into force) the parties have expressly stipulated, "for purposes of th[e] Agreement", that what is generally understood by "conservation and management measures" must comply with the obligations of international law that they have undertaken pursuant to these agreements, such as, compatibility with maximum sustainable yield, concern for the needs of developing States, the duty to exchange scientific data, effective flag State control of its vessels, and the maintenance of detailed records of fishing vessels.
The question of who may take conservation and management measures, and the areas to which they may relate, is neither in international law generally nor in these agreements treated as an element of the definition of conservation and management measures. The authority from which such measures derive, the area affected by them, and the way in which they are to be enforced do not belong to the essential attributes intrinsic to the very concept of conservation and management measures; they are, in contrast, elements to be taken into consideration for the purpose of determining the legality of such measures under international law.
71. Reading the words of the reservation in a "natural and reasonable" manner, there is nothing which permits the Court to conclude that Canada intended to use the expression "conservation and management measures" in a sense different from that generally accepted in international law and practice. Moreover, any other interpretation of that expression would deprive the reservation of its intended effect.
72. The Court has already given a brief description of the amendments made by Canada on 12 May 1994 to the Coastal Fisheries Protection Act and on 25 May 1994 and
3 March 1995 to the Coastal Fisheries Protection Regulations (see paragraphs 15, 17 and 18).
It is clear on reading Section 5.2 of the amended Act that its sole purpose is to prohibit certain sorts of fishing, while Sections 7, 7.1 and 8.1 prescribe the means for giving effect to that prohibition. The same applies to the corresponding provisions of the amended Regulations. In its version of 25 May 1994, subsection 2 of Section 21 of the Regulations, which implements Section 5.2 of the Act, defines the protected straddling stocks and "the prescribed classes" of vessels, and states that for such vessels "a prohibition against fishing for straddling stocks, preparing to fish for straddling stocks or catching and retaining straddling stocks is a prescribed conservation and management measure". Table V to Section 21 of the Regulations as amended an 3 March 1995 lists seven types of "conservation and management measures" applicable to ships flying the Spanish or Portuguese flag; the first two of these specify the species of fish in respect of which fishing is prohibited in certain areas and during certain periods; the next two specify the types of fishing gear which are prohibited; the fifth lays down size limits; while the last two lay down certain rules with which ships must comply in connection with inspection by protection officers.
73. The Court concludes from the foregoing that the "measures" taken by Canada in amending its coastal fisheries protection legislation and regulations constitute "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.
[pp. 463-465] 76. The Court will begin by once again pointing out that declarations of acceptance of its jurisdiction must be interpreted in a manner which is in harmony with the "natural and reasonable" way of reading the text, having due regard to the intention of the declarant. The Canadian reservation refers to "vessels fishing ...", that is to say all vessels fishing in the area in question, without exception. It would clearly have been simple enough for Canada, if this had been its real intention, to qualify the word "vessels" so as to restrict its meaning in the context of the reservation. In the opinion of the Court the interpretation proposed by Spain cannot be accepted, for it runs contrary to a clear text, which, moreover, appears to express the intention of its author.
77. Furthermore, the Court cannot share the conclusions drawn by Spain from the parliamentary debates cited by it. It is, indeed, evident from the replies given by the Canadian Ministers of Fisheries and Oceans and for Foreign Affairs to the questions put to them in the House of Commons and in the Senate that at that time the principal target of the Bill was stateless vessels and those flying flags of convenience; however, these were not the only vessels covered. Thus the Minister of Fisheries and Oceans expressed himself as follows before the House of Commons:
"as to what is meant by 'vessels of a prescribed class', it is simply a reference that allows the government to prescribe or designate a class, a type or kind of vessel we have determined is fishing in a manner inconsistent with conservation rules and therefore against which conservation measures could be taken.
For example, we could prescribe stateless vessels. Another example is that we could prescribe flags of convenience. That is all that is meant." (Emphasis added.)
Similarly, the Minister for Foreign Affairs stated in the Senate:
"We have said from the outset, and Canada's representatives abroad in our various embassies have explained to our European partners and other parties, that this measure is directed first of all toward vessels that are unflagged or that operate under so-called flags of convenience." (Emphasis added.)
Furthermore, the following statement by the Minister of Fisheries and Oceans to the Speaker of the House of Commons leaves no doubt as to the scope of the proposed Act:
"The legislation gives Parliament of Canada the authority to designate any class of vessel for enforcement of conservation measures. The legislation does not categorize whom we would enforce against. The legislation makes clear that any vessel fishing in a manner inconsistent with good, widely acknowledged conservation rules could be subject to action by Canada. We cite as an example the NAFO conservation rules. Any vessel from any nation fishing at variance with good conservation rules could under the authority granted in the legislation be subject to action by Canada. There are no exceptions."
This is confirmed by the inclusion in the "prescribed classes of foreign fishing vessels", as a result of the amendment of 3 March 1995, of vessels flying the Spanish and Portuguese flags (see paragraph 18 above). Indeed, it should not be forgotten that, through the enactment of the legislation by means of regulations as well as statute, from the outset the potential was deliberately left open to add prescribed classes of vessels, the term "class" referring not only to types of vessels but also to the flags the vessels were flying.
[pp. 465-466] 78. The Court must now examine the phrase "and the enforcement of such measures ", on the meaning and scope of which the Parties disagree. Spain contends that an exercise of jurisdiction by Canada over a Spanish vessel on the high seas entailing the use of force falls outside of Canada's reservation to the Court's jurisdiction. Spain advances several related arguments in support of this thesis. First, Spain says that the use of force by one State against a fishing vessel of another State on the high seas is necessarily contrary to international law; and as Canada's reservation must be interpreted consistently with legality, it may not be interpreted to subsume such use of force within the phrase "the enforcement of such measures". Spain further asserts that the particular use of force directed against the Estai was in any event unlawful and amounted to a violation of Article 2, paragraph 4, of the Charter, giving rise to a separate cause of action not caught by the reservation.
79. The Court has already indicated that there is no rule of interpretation which requires that reservations be interpreted so as to cover only acts compatible with international law. As explained above, this is to confuse the legality of the acts with consent to jurisdiction (see paragraphs 55 and 56 above). Thus the Court has no need to consider further these aspects of Spain's argument.
80. By Section 18.1 of the 1994 Act, the enforcement of its provisions in the NAFO Regulatory Area was made subject to the application of criminal law. In turn, Section 25 of the Criminal Code was amended following the adoption of Bill C-8 (see paragraph 16 above). Spain contends in this context that Canada has thus provided for penal measures related to the criminal law and not enforcement of conservation and management measures. Spain also contends that the expression "enforcement of such measures" in paragraph 2 (d) of Canada's declaration contained no mention of the use of force and that the expression should not be interpreted to include it - not least because the relevant provisions of the 1982 United Nations Law of the Sea Convention relating to enforcement measures also make no mention of the use of force.
81. The Court notes that, following the adoption of Bill C-29, the Coastal Fisheries Protection Act authorized protection officers to board and inspect any fishing vessel in the NAFO Regulatory Area and "in the manner and to the extent prescribed by the regulations, use force that is intended or is likely to disable a foreign fishing vessel", if the officer "believes on reasonable grounds that the force is necessary for the purpose of arresting" the master or crew (Section 8.1). Such provisions are of a character and type to be found in legislation of various nations dealing with fisheries conservation and management, as well as in Article 22 (1) (f) of the United Nations Agreement on Straddling Stocks of 1995.
82. The Coastal Fisheries Protection Regulations Amendment of May 1994 specifies in further detail that force may be used by a protection officer under Section 8.1 of the Act only when he is satisfied that boarding cannot be achieved by "less violent means reasonable in the circumstances" and if one or more warning shots have been fired at a safe distance (Sections 19.4 and 19.5). These limitations also bring the authorized use of force within the category familiar in connection with enforcement of conservation measures.
83. As to Spain's contention that Section 18.1 of the 1994 Act and the amendment of Section 25 of the Criminal Code constitute measures of penal law other than enforcement of fisheries conservation measures, and thus fall outside of the reservation, the Court notes that the purpose of these enactments appears to have been to control and limit any authorized use of force, thus bringing it within the general category of measures in enforcement of fisheries conservation.
84. For all of these reasons the Court finds that the use of force authorized by the Canadian legislation and regulations falls within the ambit of what is commonly understood as enforcement of conservation and management measures and thus falls under the provisions of paragraph 2 (d) of Canada's declaration. This is so notwithstanding that the reservation does not in terms mention the use of force. Boarding, inspection, arrest and minimum use of force for those purposes are all contained within the concept of enforcement of conservation and management measures according to a "natural and reasonable" interpretation of this concept.
[p. 467] 86. In the course of the proceedings Spain argued that the reservation contained in paragraph 2 (d) of Canada's declaration might be thought to have the characteristics of an "automatic reservation" and thus be in breach of Article 36, paragraph 6, of the Statute. It is clear from the Court's interpretation of the reservation as set out above that it cannot be regarded as having been drafted in terms such that its application would depend upon the will of its author. The Court has had full freedom to interpret the text of the reservation, and its reply to the question whether or not it has jurisdiction to entertain the dispute submitted to it depends solely on that interpretation.
[p. 467] 87. In the Court's view, the dispute between the Parties, as it has been identified in paragraph 35 of this Judgment, had its origin in the amendments made by Canada to its coastal fisheries protection therefrom. Equally, the Court has no doubt that the said dispute is very largely concerned with these facts. Having regard to the legal characterization placed by the Court upon those facts, it concludes that the dispute submitted to it by Spain constitutes a dispute "arising out of" and "concerning" "conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area" and "the enforcement of such measures". It follows that this dispute comes within the terms of the reservation contained in paragraph 2 (d) of the Canadian declaration of 10 May 1994. The Court consequently has no jurisdiction to adjudicate upon the present dispute.
[p. 471-473 S.O. Schwebel] 4. If Spain means to maintain that a reservation is ineffective in so far as it excludes measures or actions by the declarant State that are illegal under international law, I cannot agree. As the Court's Judgment acknowledges, the very purpose, or one of the purposes, of States in making reservations may be to debar the Court from passing upon actions of the declarant State that may be or are legally questionable. If States by their reservations could withhold jurisdiction only where their measures and actions are incontestably legal, and not withhold jurisdiction where their measures or actions are illegal or arguably illegal, much of the reason for making reservations would disappear.
[p. 472 S.O. Schwebel] 7. But if it were to be accepted, arguendo, that the foregoing contentions of Spain are correct, and that, by reason of Canada's interpreting its reservation to apply to any vessel fishing in the NAFO Regulatory Area, the reservation lacks validity and is "a nullity" and "can apply to nothing", it does not follow that the Court has jurisdiction over Spain's cause of action. On the contrary, it follows that the Court is altogether without jurisdiction since the nullity or ineffectiveness of reservation 2 (d) entails the nullity or ineffectiveness of the Canadian declaration as a whole.
8. Before filing its current declaration of 10 May 1994, Canada was bound by an anterior declaration of 10 September 1985. That declaration contained the following clause, which is reproduced in the declaration of 10 May 1994:
"(3) The Government of Canada also reserves the right at any time, by means of a notification addressed to the Secretary-General of the United Nations, and with effect as from the moment of such notification, either to add to, amend or withdraw any of the foregoing reservations, or any that may hereafter be added."
9. In implementation of the foregoing reservation, Canada added to its declaration of 10 September 1985 what appears in its declaration of 10 May 1994, namely and solely, reservation 2 (d). But it did not do this by way of transmitting an amendment to the earlier declaration which remained in force. Rather, in paragraph 1 of its declaration of 10 May 1994, Canada gave notice of termination of its acceptance of the Courts compulsory jurisdiction made on 10 September 1985. In paragraph 2, it declared the acceptance by Canada of the Courts jurisdiction over all disputes other than those specified in subparagraphs (a), (b), (c), and (d). Since subparagraphs (a), (b) and (c) are found in exactly the same terms in the 1985 declaration, it is clear that the only reason of Canada for terminating that declaration, and for making a new declaration, was to add the provisions of Subparagraph (d). Moreover, those provisions do not comprise routine recitations, such as "without special agreement" and "on condition of reciprocity", which duplicate those of the Statute. Subparagraph 2 (d) introduces an entirely new, specific and purposeful reservation. It follows that the reservation contained in subparagraph 2 (d) is not only an important but an essential provision of Canada's declaration, but for which, or without which, no new declaration would have been made.
10. The Court has accepted "the close and necessary link that always exists between a jurisdictional clause and reservations to it" (Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 33). Yet there may be cases of jurisdictional adherence where that link may be severed. One such has been suggested above, where a provision is redundant. Severability has been applied by other Court's or committees in respect of certain human rights conventions. While venturing no opinion on the tenability of severability in such circumstances, those are not the circumstances now before the Court. When, as in this case, the reservation has been treated by the declarant State as an essential one but for which - or without which - the declaration would not have been made, the Court is not free to treat the reservation as invalid or ineffective, while treating the remainder of the declaration to be in force. If reservation 2 (d) falls or fails, so must the Canadian declaration of 10 May 1994 fall or fail. If the Spanish argument is accepted on the results to be attached to Canada's interpretation of the reservation, it follows that there is no basis whatever in this case for the jurisdiction of the Court.
[pp. 479-480 S.O. Oda] 10. It is clear given the basic principle that the Court's jurisdiction is based on the consent of sovereign States, that a declaration to accept the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute, and any reservations attached thereto, must, because of the declaration's unilateral character, be interpreted not only in a natural way and in context, but also with particular regard for the intention of the declarant State. Any interpretation of a respondent State's declaration against the intention of that State will contradict the very nature of the Court's jurisdiction, because the declaration is an instrument drafted unilaterally.
There may well be occasions when a respondent State seeks to interpret restrictively the scope of an applicant State's acceptance of the Court's jurisdiction, especially if one considers that a respondent State's obligation to comply with the Court's jurisdiction greatly depends on the scope of the applicant State's acceptance of the Court's jurisdiction (cf., Article 36, paragraph 2, of the Statute), but this is, of course, not the situation in the present case.
11. Once Canada had excluded from the Court's jurisdiction certain disputes - namely, "disputes arising out of and concerning conservation and management measures" - the meaning of the reservation should, as I have explained above, be interpreted according to the intention of Canada. I am at a loss to understand why the Court should have felt it necessary to devote so much time to its interpretation of the wording of that reservation.
In particular, I do not understand why the Court should have wished to consider whether the expression "conservation and management measures" in Canada's reservation 2 (d) ought to be interpreted according to an allegedly established and normative concept of "conservation and management measures". I feel particularly that paragraph 70 of the Judgment has been drafted under a misunderstanding of the subject, namely the law of the sea.
[pp. 492-493 S.O. Kooijmans] 12. A State which is free to terminate its acceptance of the Court's compulsory jurisdiction at any time, by the same token is legally free to limit the scope of that acceptance. The question which in my opinion must be put has, therefore, no legal purport but seems nevertheless legitimate. The question which presents itself in the present case (but not for the first time) is: how far can a State go in strengthening the system of compulsory jurisdiction by depositing a declaration of acceptance while at the same time making reservations which impair its effectiveness?
13. The optional clause system was set up as a compromise between those States that favoured a comprehensive system of compulsory judicial settlement and (a minority of) other States which felt that this was not (yet) desirable and therefore not achievable. A State which has accepted the compulsory jurisdiction by depositing a declaration of acceptance indicates thereby that it considers judicial settlement to be the most appropriate method of third party settlement for legal disputes if such disputes cannot be solved amicably. It may subject this acceptance to certain conditions and reservations thereby moving into the direction of those States which found a comprehensive system a bridge too far. By limiting the scope of the Courts jurisdiction in an excessive way, the credibility of the System itself is affected; as a result the declarant State's sincerity in supporting the idea of compulsory jurisdiction is implicitly attenuated as well.
14. In the past this attitude of certain States which limited the Court's jurisdiction in a drastic way has led to laments similar to that of Professor Waldock quoted earlier. A completely different but nevertheless comparable problem presents itself, however, when a State accepts the Court's jurisdiction in a rather generous way, but at a given moment by modifying its declaration deprives the Court of jurisdiction over an anticipated dispute. The confidence in the judicial system and the Court exemplified by the willingness to submit a wide range of conceivable but not imminent legal disputes to judicial settlement is to a certain extent neutralized by the exemption from the Courts jurisdiction of an anticipated and therefore probably imminent dispute.
15. The optional clause system is a fragile system. The high expectations of the founders of the Permanent Court of International Justice have not come true. The prospects of a comprehensive system of compulsory jurisdiction reached their peak in the 1930s but at present it may at best be called a beckoning ideal. Nevertheless, an increasing number of States is finding its way to the Court and also the number of States which have deposited a declaration of acceptance is slowly but steadily increasing. Under these circumstances it would in my opinion not have been beyond the Court's mandate to draw attention to the fragility of the system of compulsory jurisdiction which in the form of the optional clause system is an integral and essential part of the Statute and to the risks to which it is exposed. This all the more so since in its recent Judgment in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, the Court emphasized - be it on a strictly legal basis - the importance of that system.
[pp. 500-501 S.O. Weeramantry] 17. Once a State has entered the consensual system, submission to the basic rules of international law inevitably follows, and there can be no contracting out of the applicability of those rules. Once within the system, the rules of international law take effect, and apply to the entirety of the matter before the Court, irrespective of State approval. It has been argued before us that the greater power of total abstention or total withdrawal always includes the less. That proposition is unimpeachable, but at the same time can make no difference to the dominance of international law within the system once it is entered.
18. Though, regrettably, there are still many areas of international activity which are not reached by the writ of international law, one area where legality rules is within the consensual system.
19. It scarcely needs emphasis that the basic principles of international law permeate the entirety of that limited domain, and that the natural freedom to make reservations to the acceptance of that jurisdiction cannot extend to excluding the operation within it of the fundamentals of international law. The preservation of the integrity of that legal territory, within the limits in which it functions, imposes upon those who enter it certain constraints in the best interests of all users, and in order to preserve the inviolability of international law.
20. Illustrations of the proposition that, once within the system, the declarant State must submit to the rules and procedures prevalent therein, are not difficult to find. Examples include the undoubted principle that it is for the Court, and not for litigating States, to decide on its jurisdiction. That compétence de la compétence is a matter exclusively for the Court to determine is a principle which is well entrenched in the Court's Statute (Art. 36 (6)) and jurisprudence1. Indeed, the principle that an international tribunal is the master of its own jurisdiction can be described as a fundamental principle of international law2, and as the Court observed in Nottebohm, "Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration"3.
21. Likewise, it is the Court that determines its rules of procedure, and not the States that appear before it. Parties coming before the Court must accept the Court's rules of procedure and must submit to them, for the act of submission to the Court's jurisdiction implies a submission to the Court's procedural rules, and to the principle that the Court, and not the parties, is the master of its own procedure.
22. So, also, any matter that arises for adjudication within optional clause territory would be governed strictly by the rules of the United Nations Charter and the Statute of the Court. One cannot contract out of them by reservations, however framed. The basic principles of international law hold sway within this haven of legality, and cannot be displaced at the wish of the consenting State.
[pp. 502-504 S.O. Weeramantry] 24. Where, as in this case, there is a general submission to the Court's jurisdiction, followed by particular exceptions, the general part states the principle underlying the declaration, namely, the principle of submission. That general part sets the framework within which the Court's jurisdiction is accepted. It constitutes, inter alia, a submission to the general Corpus of international law and, in particular, to its ruling principles. The reservations constitute exceptions - in this case ratione materiae - to that jurisdiction. They do not constitute exceptions to the ruling principles of the Corpus of international law.
25. If, then, a State should assert that another State has sought to impose upon the applicant State a submission to the unilateral exercise of its penal jurisdiction on the high seas, to violate the basic principle of freedom of the high seas, to violate the peremptory norm of international law proscribing the use of force, to violate thereby a fundamental principle of the United Nations Charter, to violate the well-established principle of the complainant State's exclusive sovereignty on the high seas over vessels carrying its national flag, to endanger the lives of its seamen by a violation of universally accepted conventions relating to the safety of lives at seas - can all these alleged fundamental violations of international law, which would engage the jurisdiction of the Court under the general principle of submission, be swept away by the mere assertion that all these were done as a measure of conservation of fisheries resources? Reservations do not constitute a vanishing point of legality within the consensual system.
...
29. To hold that a breach of such basic obligations is removed from the Court's jurisdiction by the reservation would be to denude the Court of an essential part of the basic jurisdiction conferred upon it by the declaration of the States concerned.
30. To approach this problem in another way, if a reservations clause should expressly state that any act which originates as a conservation measure is free of Court jurisdiction, even though it amounts to an unauthorized use of force against a sovereign State, one can be in little doubt that such a clause would be held to be incompatible with the declaration. Quite clearly, a result which cannot be achieved by express declaration, cannot be achieved by judicial interpretation of terms which are less than express, and I do not think a reservations clause can be so construed as to achieve such an unacceptable result. To borrow the language Sir Hersch Lauterpacht used in Certain Norwegian Loans, regarding another reservations clause4, this result would be "both novel and, if accepted, subversive of international law"5.
31. There may in some circumstances be difficulty in determining the classification of a particular piece of conduct which, while literally falling within a reservations clause, also amounts to such a violation of basic international law principles as to fall within the general consensual jurisdiction granted to the Court. However, there are cases which clearly fall within one category or the other, such as a violation of the peremptory norm against aggression. In such cases, the result must follow inexorably that parties who have consented to a régime of legality cannot opt out of the very foundations of that régime of legality to which they have consented. In my view, the present case is one such, which falls clearly within the ambit of the general submission rather than the particular reservation.
32. Speaking in general terms, and not in the context of this particular case, a State may not, therefore, be able, under cover of a reservation relating to a specified kind of activity, to exempt itself from the scrutiny of basic illegalities that occur within that area of action.
[pp. 505-507 S.O. Weeramantry] 37. There is a presumption of good faith in all State actions and, hence, in regard to the declarations which a State may make under Article 36. Consequently, if one were interpreting the intention of Canada in making this declaration, one would attribute to Canada the intention of using terms in conformity with their legal meaning.
38. Another approach to the question is to apply the usual rule of interpretation that, in interpreting a legal document, one must construe its terms in accordance with legality rather than in violation thereof. The conservation and enforcement measures which Canada contemplated must therefore be interpreted to mean such measures as are in accordance with the law, and not measures which are in violation thereof. I cite in this connection an observation from Oppenheim's International Law which sets out the law applicable to the interpretation of treaties in a manner no doubt equally applicable to the interpretation of other international legal documents:
"Account is taken of any relevant rules of international law not only as constituting the background against which the treaty's provisions must be viewed, but in the presumption that the parties intend something not inconsistent with the generally recognised principles of international law, or with previous treaty obligations towards third states.6"
Even more explicitly, and in reference to texts emanating from governments, this Court observed in
"It is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it.7 "
39. One would thus, even without the benefit of treaty definitions, tend to construe "conservation and management measures" as those taken in accordance with law. Reference may usefully be made in this connection to such treaty definitions as that contained in Article 1 (1) (b) of the United Nations Agreement on the Conservation and Management of Straddling Fish Stocks of 1995, which expressly defines the expression "conservation and management measures" as meaning
"measures to conserve and manage one or more species of living marine resources that are adopted and applied consistent with the relevant rules of international law as reflected in the Convention and this Agreement" (emphasis added).
Such definitions reinforce the natural conclusion that when expressions such as "conservation and management measures" occur in a legal document, they must be given a meaning which is consistent with legality. Such expressions in other publications, such as a scientific or environmental journal, may well carry other connotations but, in a solemn legal document emanating from a State, they can carry only such a meaning as is consistent with law.
40. If legality be a requisite of the meaning of the expression, at least a prima facie case exists that such assertions as breach of essential parts of the modern law of the sea (such as the freedom of fishing and navigation, and the principle of exclusive State jurisdiction over ships flying the national flag), and of the peremptory norm of international law against the threat or use of force, are assertions which, if substantiated, take this case out of the ambit of the reservations clause. This is not to speak of assertions of a series of specific acts committed outside Canada's 200-mile zone, including the use of water cannon and the cutting of trawl net cables which, according to Spain, have had the effect of endangering the safety of life at sea in violation of international regulations and covenants. These Canadian actions were, moreover, the subject of a Note Verbale by the Delegation of the European Commission in Canada, protesting, inter alia, at the arrest of a vessel in international waters by a State other than the flag State - an act which they alleged is illegal, both under the NAFO Convention and under customary international law, and "goes far beyond the question of fisheries conservation"8.
41. I stress that there is no finding as yet on any of these matters. Yet, so long as the possibility is open that they may be proved, it seems to me that the Court cannot hold that it is manifestly without jurisdiction. That situation may well be reached when the facts are known. Then and only then would the Court be able to pronounce that it lacks jurisdiction to hear the dispute before it. Until such time, the Court must hold itself available to determine the dispute if the circumstances which bring it into operation are satisfied.
42. The foregoing considerations make it clear that a proper construction of the reservation relates it to legal and not illegal actions taken in pursuance of conservation and enforcement measures.
[pp. 512-513 S.O. Weeramantry] 65. There could well be a range of possible interpretations of a declaration, and it seems to me that the interests of justice are best served by taking a broader view where that is consistent with the terms of the declaration. Thus construed, these submissions to the jurisdiction can afford the Court the basis for building up a growing body of jurisprudence, as well as for increasing the confidence of States in the reach and the value of international adjudication. Decisions which tend to diminish that jurisdiction in its formative stage may well inhibit the growth of the potentially vigorous sapling of international adjudication9, and deter parties, who might otherwise approach the Court for a resolution of their disputes, from doing so.
66. All of these principles make no encroachments whatsoever on the undoubted right of every sovereign State in its own unfettered discretion to determine whether it will or will not enter the judicial enclave created by the Statute. The discussions attending the acceptance of this clause show how careful the drafters were to ensure the preservation of State autonomy in this regard, for the imposition of compulsory jurisdiction, in however small a measure, was seen as a significant encroachment upon State autonomy.
[pp. 518-519 D.O. Bedjaoui] 8. The case would have been perfectly simple if the duty of the Court had been to confine itself to ascertaining the meaning of the expression "conservation and management measures" contained in the reservation, and to affirming that "the enforcement of those measures" against the Spanish fishing vessel Estai was precisely covered by the terms of that reservation, thus preventing the Court from entertaining any claim in this regard. It is absolutely essential, however, that attention be focused on another, far more important term of the reservation, that which places Canada's action, in geographical terms, "in the NAFO Regulatory Area", that is to say outsite the 200-mile limit. And indeed the Estai was boarded some 245 miles off the Canadian coast. If in the Canadian reservation we simply substitute for the words "in the NAFO Regulatory Area" the expression "beyond Canada's 200-mile exclusive economic zone", then it immediately becomes clear that the Court is dealing here with a reservation of an unusual, not to say audacious, nature. Hence it became incumbent upon the Court to verify whether such a reservation could be accepted without difficulty under the optional clause system.
9. Article I (2) of the NAFO Convention contains a crystal-clear definition which leaves no doubt in this regard when it provides that:
"The area referred to in this Convention as 'the Regulatory Area' is that part of the Convention Area which lies beyond the areas in which coastal States exercise fisheries jurisdiction." (Emphasis added).
It is in no sense a distortion of the Canadian reservation to recast it in terms of its true meaning, making it accessible to the reader, who may not be aware of the precise significance of the expression "NAFO Regulatory Area" and will certainly be in a better position to understand the object of the reservation, whose field of application is "the high seas". The object of the reservation is to signal urbi et orbi that Canada claims special jurisdiction over the high seas. The Court cannot interpret or accept this reservation in the same way as it would interpret or accept an ordinary reservation, since, without any need for a consideration of the merits, its terms prima facie disclose a violation of a basic principle of international law. This is an issue which the Court cannot simply ignore by restricting itself to an external and superficial interpretation of the reservation. It cannot be right for the Court to content itself in this case with a purely formal view of the reservation, disregarding its material content - a content which does not require an investigation involving examination of the merits, since it is abundantly clear that the reservation affects a traditionally established right.
[p. 533 D.O. Bedjaoui] 43. However, a State's freedom to attach reservations or conditions to its declaration must be exercised in conformity with the Statute and Rules of Court, with the Charter of the United Nations, and more generally with international law and with what I may venture to call "l'ordre public international". Just as the acts of a State, and more generally its conduct, in whatever area of international relations, must conform to existing international legal norms, so the formulation of a reservation, which is no more than one element of such conduct, must also comply with these norms.
[pp. 536-538 D.O. Bedjaoui] 50. I therefore regret that the Court did not reject, or even hold null and void, a reservation whose obvious purpose, when read together with a piece of domestic legislation, was to permit encroachment upon an essential freedom of international law, both past and present, without fear of judicial intervention. Canada - admittedly with legitimate concern for the conservation of fishery resources - unfortunately yielded to temptation and took a regrettable legislative initiative with a view to an operation on the high seas, believing it could escape judicial sanction by simultaneously notifying the international community of a new reservation adopted for purposes it feared might be illegal.
Such a reservation could not and should not be accepted by the Court.
51. The Canadian reservation (d) is damaging to the optional clause "system". A better and perfectly clear position would have been as follows: either Canada should have withdrawn its declaration completely in 1994, provisionally and for the period required for its fisheries conservation policy, or the Court should now, in its present Judgment, in 1998, have rejected reservation (d). The situation created by the maintenance of the declaration subject to the reservation represents the least satisfactory solution for all concerned: Canada, other declarant States and the International Court of Justice.
52. The backbone of the optional clause "system" consists in good faith among declarant States. Upon this principle depends the freedom of a State to formulate a reservation. If, for reasons of domestic or international policy, which may of course be perfectly legitimate, a declarant State finds itself in difficulty as a result of the terms of its declaration, it should temporarily withdraw that declaration for the period required by the political action which it contemplates, rather than attach to the declaration - I am tempted to say encumber and undermine it - a reservation intended to cover a purpose which might very well be regarded as unlawful. It may not on the one hand set out to accept the Courts jurisdiction for a wide variety of disputes, given the broad terms of its declaration, while on the other seeking simultaneously to escape judicial scrutiny (which its declaration has clearly demonstrated that it wishes to accept) in respect of a specific class of acts protected by its reservation where it doubts their legality.
53. First, this situation - stemming directly from reservation (d) - places the consistency of the declarant State's conduct under internal "strain". Next, it undermines the optional clause "system" from within, risking its implosion, since it robs the system of the good faith which is its very life-blood. According to a maxim of French civil law, "donner et retenir ne vaut" (you cannot both give and take back). A declarant State cannot take away with one hand what it has given with the other. It cannot swear fealty to international justice by submitting itself to the latter's verdict in respect of those acts where it considers it has behaved correctly, while shunning that same justice in the case of those acts whose legality it fears may be questionable. It is not possible for a declarant State to remodel the philosophy of the clause "system" in this way, still less to bend the "system" to suit its own conflicting requirements, or to mix two incompatible aims.
54. But Canada is not the only victim of its own choice - a choice which tarnishes the bright image of a State committed for the last 70 years to the ideal of international justice. Nor is it only the clause "system" which suffers. The Court itself, in holding that it lacks jurisdiction, lays itself open to a degree of damage. The saying is that "lack of jurisdiction does not imply legality", i.e., the Court in no way endorses Canada's conduct by declaring that it lacks jurisdiction in regard to that conduct. That is true, but psychologically the impact is disastrous. Was there really no other way than to embarrass the Court, which clearly discerns illegality in Canada's conduct on the high seas, but must nonetheless play Pontius Pilate and wash its hands of the case? This is an unwelcome situation for a court which knows that it must render justice but cannot do so.
55. This is not the end of the harm caused by reservation (d) . Declarant States also suffer. A State is of course free to formulate reservations; from this the Court proceeded to the conclusion that, had it refused to recognize the reservation - on the basis of which it accepted the Respondent's claim that it had no jurisdiction - the clause "system" would have been severely prejudiced. To disregard a declarant State's inviolable right to make reservations would be to undermine the structure of the system and discourage States wishing in the future to make a declaration of acceptance. This, it was said, would be the speedy ruin of the clause "system".
56. This argument fails on two accounts. First, the idea that States will be discouraged - stopped in their tracks in their rush to make a declaration - because, for once, a judgment of the Court has rejected an incompatible and potentially hazardous reservation, seems to me pure fantasy. Unfortunately, more than two thirds of today's States. for reasons which I to some extent understand, flatly reject the idea of making a declaration and, whatever the Court does, will probably never accept its compulsory jurisdiction, despite the blessing bestowed by the Court to a quite unreasonable degree upon the right to make reservations, and the overwhelming enthusiasm displayed by the Judgment for the Canadian reservation in particular.
The second point is even more important : we should not consider merely the position of States which have yet to accede to the optional clause "system". We must not forget those States which have already made a declaration and which participate in the clause "system". Is it right for these States, which through the "system" are working for stability, foreseeability and security in legal relations, that other declarant States should hastily formulate a reservation whenever they encounter a problem? Is this the best they can hope for in their legitimate expectations for the security of their relations with other declarant States? Does this not jeopardize the stability of the entire optional clause "system" ?
[pp. 539-540 D.O. Bedjaoui] 59. It seems to me that the Applicant was reluctant to take its criticism of the Canadian reservation (d) to its logical conclusion. In its final submissions it did not go so far as to claim that the reservation was a "nullity". Should we welcome this caution, on the argument - as is sometimes proposed - that nullity of the reservation would have entailed that of the entire declaration, which would have confirmed even more forcefully the Courts lack of jurisdiction in this case?
60. Let me begin by saying that, all in all, I would have preferred a situation in which the Court had taken the clearer - and possibly sounder - course of founding its lack of jurisdiction on the nullity of the declaration as a whole, rather than on reservation (d) alone.
In any case, it is far from certain that the nullity of a reservation entails ipso facto that of the entire declaration; common sense, for one thing, tells us otherwise. A reservation restricts the field of consent given by the declaration. A field with ill-defined boundaries is still a field. But most importantly, case-law, doctrine and State practice are in accord that, looking beyond the sui generis nature of a declaration, the principles and rules peculiar to bilateral or multilateral acts, i.e., to treaties, should be applied mutatis mutandis to this unilateral act. And treaty law, as codified in 1969, enshrines in Article 44 of the Vienna Convention - admittedly with certain exceptions - the principle of separability of the various provisions contained in a treaty. I really cannot see why a declaration should wholly escape this principle.
61. This issue has in fact been raised in a number of cases, including the Norwegian Loans and Interhandel cases, and some judges have evoked and accepted the principle of separability (cf. Norwegian Loans, I.C.J. Reports 1957, p. 55-59; Interhandel, I.C.J. Reports 1959, pp. 57, 77-78, 116-117).
At the regional level too, the European Court of Human Rights, for example, has found occasion to apply the principle of separability by striking down reservations in respect of certain provisions in the European Convention for the Protection of Human Rights and Fundamental Freedoms, without invalidating in their totality declarations of acceptance of the jurisdiction of the Strasbourg Court in respect of disputes concerning the Convention (cf. Loizidou v. Turkey, Preliminary Objections, Judgment of 23 March 1995).
By way of comparison, it should also be observed that the principle of separability is fully accepted in international commercial arbitration, in so far as treatment of the arbitration clause is deemed to be independent of that of the other provisions in the agreement.
[p. 549 D.O. Bedjaoui] 90. Thus once again we find that the definition is not confined to technical elements but also incorporates the very important element of conformity with international law, which constitutes the prerequisite for the legal characterization of conservation and management measures. In Paragraph 70 the Judgment divorces the technical aspects from the element of conformity with public international law, dismissing the latter on the pretext that it raises the problem of the legality of such measures, which the Court cannot consider in the present phase. This reductionist approach is totally unjustified. The element of conformity does indeed raise the problem of the legality of the measures, but that is absolutely no reason for excluding it from the definition, at a time when a very substantial body of international instruments, including the 1995 United Nations Convention mentioned above, demonstrates that the international legislator recognizes such conservation and management measures - which are moreover referred to as "international" in light of various factors, both technical and legal. The fact that the latter raise an issue of legality is totally irrelevant to whether or not they should be included in the definition, which here serves simply to identify the measures in question.
91. What is more, the Court's approach to this issue consists in a simple assertion - and this is undoubtedly the weakest point in its Judgment - that "the authority from which such measures derive, the area affected by them, and the way in which they are to be enforced do not belong to the essential attributes intrinsic to the very concept of conservation and management measures". In this way the Court quietly disposes of the entire subject-matter of the dispute.
[p. 562 D.O. Ranjeva] 23. Paragraph 70 of the Judgment restricts the definition of "conservation and management measures" to their technical and factual dimension, resulting in the Court giving its own definition, one at variance with that expressly provided in the only two directly relevant international instruments: the United Nations Agreement on Straddling Stocks of 1995 and the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. This approach is unacceptable: the Court did not confine itself to interpreting positive law, but created law.
[pp. 568-569 D.O. Ranjeva] 39. In the present case, the problem derives from the unilateral nature of the reservation in the declaration; the Judgment concludes that in these circumstances the intention of the author of the declaration is paramount and, hence, that substantial, not to say exclusive, importance should be accorded to the respondent Party's domestic legislation. As a result, the definition is restricted to its material aspect, even for purposes of characterization of the facts in international law.
From the standpoint of international law, domestic legislation is of the same juridical nature as the facts submitted for consideration by the international forum, which is bound by the law of the parties. It was therefore necessary for the Court to establish the pertinent facts with precision for the purpose of settling the preliminary dispute; but it was not enough to consider that aspect alone, for this was to misconstrue the unilateral nature of a reservation to compulsory jurisdiction. The reservation is unilateral in origin but international in its effects, and in consequence pertains both to domestic law, as the Judgment sufficiently demonstrates, and also to international law, an issue which the Judgment avoids resolving or even contemplating; and that is unacceptable.
40. A declaration to which a reservation is attached, while perfectly valid under the Court's Statute - as is the Canadian declaration in this case - cannot have the effect of conferring upon the author of the reservation sole responsibility for determining whether the condition for the Court's exercise of its jurisdiction is met. The provisions of Article 36, paragraph 6, prohibit the Court from affording one of the parties unfettered discretion to interpret a declaration made by that party in the free exercise of its discretion.
In endorsing a unilateral interpretation of the reservation and espousing a material definition of conservation and management measures, the Court has failed to appreciate the nature of the network of relationships constituted by the various declarations of acceptance under Article 36, paragraph 2, of the Statute. The relations between the litigating parties come into being at the time when the conditions formulated by the respondent - including any reservation - are accepted by the applicant when it files its application. From that point in time, we are no longer dealing with a single, unilateral intention, that of the respondent, but with the common intention of the two parties, as formed at the moment when the intention of the author of the reservation meets that of the applicant State, an event which creates the jurisdictional link between the litigating parties. Consequently, when faced with a common intent concealing an underlying divergence of views with regard to the meaning of conservation and management measures, the Court cannot lightly lay aside the traditional rules for the interpretation of treaties.
41. A common intent is not, however, in itself sufficient to create legal obligations. This would be the case where the parties to an agreement did not intend to establish a mutual legal relationship and sought to exclude their common intent from the area governed by the law. For purposes of legal characterization, how can the existence of a common intent as to the generally accepted meaning of a particular concept be established, otherwise than by reference to the accepted means of expression of international opinio juris - international law? Thus, a common intent can have effectively been formed only if each party has shaped its consent to fit the definition of conservation and management measures in international law. Consequently, it is by reference to its definition in international law that this notion must be interpreted for the purpose of settling the preliminary dispute in this case. That definition comprises two elements, one ratione materiae, the other ratione loci.
The nature of the issue would have been different if the Canadian reservation had provided for the exclusive competence of the author of the declaration to interpret international law, but there is no such provision. It is accordingly for the Court to define the conservation and management measures in question on the basis of international law.
However, the Court cannot answer the fundamental question raised by the preliminary dispute (is the dispute presented by the Applicant in its Application covered by the terms of the Respondent's declaration and reservation?) until it has examined the merits of the dispute. Thus it is necessary to examine the content of the measures and the practice of States in order to ascertain whether these were conservation and management measures within the meaning of the 1982 Convention. It follows that the objection does not possess an exclusively preliminary character. In answering the above question in the affirmative, the Judgment accepts the hypothetical claims on the merits of a respondent which seeks immunity for the measures it takes and the acts it performs, irrespective of their legality.
In conclusion, I consider that:
(1) the passages in the Judgment concerning the subject of the dispute have no direct connection with the question with which it is for the Court to deal at this preliminary stage of the proceedings;
(2) Canada's objection does not possess an exclusively preliminary character and should be joined to the merits.
[pp. 575-576 D.O. Vereshchetin] 11. In case of the optional clause jurisdiction (or so-called compulsory jurisdiction), a State is absolutely free to join or not join the optional clause system and to limit or not limit its consent to the Court's jurisdiction by certain conditions and reservations. This does not mean, however, that the role of the Court in the assessment of a State's reservation/condition to its declaration of acceptance of the optional clause may be reduced solely to the establishment of the intention/will of the State concerned or, for that matter, that the above intention/will must always be conclusive for purposes of a decision on the Court's jurisdiction. The Court would be failing in its duties of an "organ and guardian" of international law should it accord to a document the legal effect sought by the State from which it emanates, without having regard to the compatibility of the said document with the basic requirements of international law.
Certainly, a State making a reservation sometimes does so because it "lack[s] confidence as to the compatibility of certain of its actions with international law" (para. 54 of the Judgment) and for that reason wishes to evade the scrutiny of its conduct by the Court. However, it is one thing when the legality of certain actions may be seen as doubtful, and quite a different thing when the actions whose examination by the Court a State seeks to avoid, by making a reservation, are clearly contrary to the Charter of the United Nations, the Statute of the Court or to erga omnes obligations under international law. Being confronted with such a dilemma, it is for the Court to draw a distinction between these two different legal situations, which may lead to different conclusions as to the validity or admissibility of the reservation in question.
A State is not absolutely free to make any reservation or condition it pleases to its optional declaration deposited under Article 36, paragraph 2, of the Statute. For example, it is uncontested that the Court cannot give effect to a condition imposing certain terms on the Court's procedure which run counter to its Statute or Rules. As Judge Armand-Ugon rightly argued in the Interhandel case, "[t]he rules of substance and procedure fixed by the Statute must be regarded as immutable: neither the Court nor the parties can break them." (Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 93, dissenting opinion of Judge Armand-Ugon.) Equally, in my view, the Court cannot give effect to a reservation which expressly exempts from its jurisdiction the examination of conduct manifestly inconsistent with the basics of international law. An objection to the Court's jurisdiction based on a reservation tainted with such a defect must be rejected by the Court as inadmissible. Recognition by the Court of the operation of a reservation of this kind might be viewed as tantamount to legal endorsement of what in fact should be considered as an abuse of the right of a State not to be sued without its consent before an international tribunal. Generally, reservations and conditions must not undermine the very raison d'etre of the optional clause system.
[pp. 579-580 D.O. Vereshchetin] 19. In the process of interpretation, following the jurisprudence of the Court, "due regard" should also be given to the intention of the State author of the declaration/reservation at the time when such declaration/reservation was made. "Due regard" does not mean that this factor should be controlling and definitive for the outcome of the interpretation by the Court, but it must certainly play an important role in ascertaining the purpose of the legal instrument. The purpose intended by the State author must be primarily sought in the wording of the document itself. In some cases, the Court has found "a decisive confirmation of the intention" of the declarant State in the text itself of the examined declaration/reservation. (See case concerning Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 107.)
20. As a general premise, the Court should proceed from the presumption that the intent was to remain within the orbit of international law. The purpose of the declaration/reservation must be presumed as legal. The Permanent Court of International Justice stressed that the Court cannot presume an abuse of rights (Certain German Interests in Polish Upper Silesia Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7, p. 30). The present Court in the Right of Passage case stated that:
"It is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it." (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 142.)
The Court cannot impute to a State bad faith, an intent by way of a reservation to cover a violation of international law.
21. Basing itself on the presumed lawfulness of Canada's intent, the Court cannot read into the text of the reservation of Canada an intention to violate the fundamental principle of the freedom of the high seas and at the same time to avoid review of this conduct by the Court. Rather, it should seek to interpret the reservation as consistent with international law and, therefore, to construe the words "conservation and management measures" in the sense accepted in recent multilateral agreements (see supra para. 16) or, at the very least in a sense having some justification in international law.
[pp. 635-636 D.O. Torres Bernárdez] 136. I therefore consider that, when faced with a reservation contrary to the Statute, the Court is entitled to disregard it, for no State has the right either to distort the nature of the judicial process by inserting antistatutory reservations in a declaration under the optional clause system, or to abuse the good faith and expectations of the other declarant States. There remains the less well-studied question of a possible restriction on the freedom to make reservations which breach fundamental principles or norms of the United Nations Charter or of general international law. I believe that, in this area too, there exist restrictions, but here my conclusions require qualification, given the principle of consent to the jurisdiction of the Court, which also forms part of the United Nations Charter and of the Statute of the Court.
137. It might be that in some instances a reservation of this kind ought to be disregarded but not in others. For example, would it be lawful to exclude by reservation a structural provision such as Article 103 of the United Nations Charter? Or the powers and attributions of the Security Council under the Charter? Or the principle of the sovereign equality of States? As to general international law, there might also be reservations which, by reason of their object or purpose, could be void. I am thinking, for example, of reservations made with the intention of promoting a war of aggression, genocide, the slave trade, or acts of piracy on the high seas, and so forth. There further remains the particular question that might arise on account of the existence of rules of jus cogens, for, in the final analysis, declarations amount to agreements on jurisdiction with each of the other declarant States.
138. Any State harbouring such an intention must refrain from making a declaration or do so only in respect of one or more specific categories of dispute to the exclusion of all others, as it is perfectly entitled to do. What it is not entitled to do in regard to the other declarant States is to undermine the optional clause system, that is to say, to commit an abuse of rights by depositing a declaration that is misleading in its scope and wording, while reserving the right, when the time comes, to invoke interpretations that are at variance with the Statute, with the United Nations Charter or with general international law. States are entitled to accept or not to accept the optional clause system and to insert conditions and reservations in declarations, but not to overstep the bounds of the principles of good faith and mutual trust underlying the system. In exercising its power to determine its own jurisdiction, the Court should have no hesitation in exercising such supervision. The present Judgment declines to do so. For me this is just as serious as its own redefinition of the subject of the dispute submitted to it by Spain on 28 March 1995.
139. The Judgment refers to the question of reservations being invalid or inoperative by reason of their possible incompatibility with the Statute, with the United Nations Charter and with international law. As drafted, paragraph 2 (d) of Canada's declaration does not present me with any problem of incompatibility. Nor, moreover, does the reservation in paragraph 2 (c) contain any subjective or automatic reservation of national jurisdiction that would prevent the Court from exercising its power to determine its own jurisdiction pursuant to Article 36, paragraph 2, of the Statute of the Court. In my view, the reservation in paragraph 2 (d) of Canada's declaration does not fall as such within the category of those reservations which could be regarded prima facie as being excluded from the freedom to make reservations enjoyed by declarant States. The question raised by Spain concerned a different issue, namely the interpretation of a reservation in a manner contrary to the Statute, the United Nations Charter or to international law. Spain's argument, with which I agree, was that in the event of doubt as between two possible interpretations of a declaration, one must, as a general principle, interpret the declaration, including its reservations, in accordance with the Statute of the Court, with the United Nations Charter and with international law. The question of the incompatibility of the Canadian reservation as such, or even of its possible invalidity, was not raised by the Applicant and the Judgment does not deal with it. However, the Judgment falls into the trap of a self-judging approach to the interpretation of reservations, for it has effectively allowed Canada's purported intended effect to govern its interpretation of the reservation, inasmuch as, according to the Judgment, that intended effect is the one which the Respondent claims in the present incidental proceedings to have had in mind when it made its declaration in 1994.
[pp. 643-644 D.O. Torres Bernárdez] 157. For the Judgment, right from the very outset of the interpretative process, it is the political or internal psychological reasons which led Canada to deposit the 1994 declaration that comprise the true subject-matter of the interpretation. It is no longer a matter of interpreting the declaration qua unilateral international instrument, or Canada's consent as embodied in the deposited declaration and ascertained by interpretation, but in truth of interpreting the aims of the Canadian Government at the time when it made its declaration. This is the point we have reached in the interpretation of declarations under the optional clause some eighty years after the adoption of the first Statute. It would be hard to strike a more devastating blow at legal security, and at the operation of the optional clause system.
158. The Judgment thus accepts that what the Court must interpret is the "underlying intention" of which Canada spoke, but which the Court defines even more vaguely and subjectively than did Canada in its Counter-Memorial and oral argument. Once the Judgment takes this as the subject-matter of its interpretation, and given that the Court evidently has the requisite jurisdiction to interpret the Canadian declaration, then anything is possible, for the interpretative process is no longer subject to the constraints imposed by international law on the interpretation of international instruments. Thus what we are faced with here is a free interpretation of Canada's purported "underlying intention".
159. I cannot accept such an approach to the interpretation of declarations under the optional clause system. Even if the Court is the interpreter, the interpretation of declarations must be carried out on the basis of their text, the declarant State's intention being ascertained by the application of the normative rules of interpretation, which reflect the current state of international law and have, moreover, been formulated by States after taking due account of the Court's jurisprudence on the subject. If the approach to the interpretation of declarations adopted in this Judgment were to become confirmed in the future, then, in order to know where they stood, declarant States would in every case have to enquire into the political or other aims or reasons which had led each of them to accept the Courts jurisdiction through the deposit of a declaration.
160. The technique used by the Judgment in support of the method of interpretation which it applies consists in bringing the principle of consent to jurisdiction into the interpretative process, as if it were a principle which was also an element in the interpretation of declarations. In other words, by creating a vicious circle: that which has to be proved by interpretation (the meaning and scope of the declarant State's consent) becomes an integral part of the demonstration, that is to say of the interpretative process to be carried out by the interpreter. This is in effect to confuse two elements which are, however, quite distinct, namely, on the one hand, the principle of consent to jurisdiction and, on the other, the interpretation of the instrument in which that consent is manifested. This trend was already perceptible in some opinions of judges (especially from about 1994 onwards) on the interpretation of the compromissory clauses in certain treaties. The majority in the present case now extend this solution to the interpretation of Canada's declaration of 10 May 1994, even though the declarations here, both of the Respondent and of the Applicant, are declarations of acceptance of the compulsory jurisdiction of the Court, which may be characterized, notwithstanding the reservations they contain, as wide or general.
161. It is in the approach to interpretation applied by the Judgment to Canada's declaration and in its redefinition of the subject of the dispute submitted by Spain that the fundamental reasons for this dissenting opinion are to be found.
[pp. 666-667 D.O. Torres Bernárdez] 224. In my view, the legally material intention is that embodied in Canada's declaration, including the reservation in subparagraph 2 (d), and that intention must be ascertained by applying the rules for the interpretation of international instruments laid down by international law and, in particular, all of the interpretative elements accepted by those rules which are applicable to the circumstances of the case, namely : the principle of good faith; the rule that words must be given their ordinary meaning, in their context, in the light of the object and purpose of the declaration; the relevant rules of international law applicable in the relations between the parties together with all relevant circumstances as supplementary means of interpretation.
225. As the Judgment says, "it is the declaration in existence that alone constitutes the unity to be interpreted" (paragraph 45 of the Judgment). However, the Judgment does not apply this rule. I too recognize that the reservation in subparagraph 2 (d) must not be interpreted as restricting the scope of a prior more general acceptance, for example that of Canada's declaration of 10 October 1985. That declaration was abrogated and replaced by a new one, that of 1994. However, what I do say is that the declaration of 10 May 1994, which was in force at the time when Spain filed its Application, must be interpreted by reference to its text in accordance with international law and not by reference to such political or other reasons that Canada may have had when it made the declaration and deposited it with the Secretary-General of the United Nations.
226. What counts for purposes of the interpretation which we have to make is not these reasons, or any other motives that the declarant may have had, nor the unilateral and sovereign nature of the acts of drafting and deposit, nor even the fact that a particular reservation has or has not been included, but the intention manifested in solemn written form in the instrument made, deposited, registered and published, including all of its reservations and conditions, which is the sole legally material intention notified to other States, including Spain.
[pp. 670-671 D.O. Torres Bernárdez] 237. My position on the role of good faith in the interpretation and application of the Canadian declaration concurs with that assigned to that role by the rules of interpretation of international law: that is, a role analogous to the one it plays in the interpretation of treaties. Thus, good faith has the function of helping to ascertain Canada's intention as expressed in the declaration that Canada itself freely drafted, made and deposited; for the legal obligation assumed by Canada in relation to other declarant States accepting the same obligation is that to be found in the declaration, and nowhere else.
238. Canada is solely responsible for the wording of the declaration deposited by it in 1994 in exercise of its sovereignty. In these circumstances, good faith must play a fundamental role in the interpretation and application of the declaration. Otherwise, faced with an application by a declarant State, the respondent declarant State could always reply that its intention consisted in truth not in that expressed in its declaration, but in subjective considerations - political or other - which might, moreover, change over the course of time.
239. The role of the principle of good faith in the interpretation of unilateral declarations is not open to question by anyone. It is even more fundamental than in the case of the interpretation of treaties, precisely because every declaration is an act solely attributable to the declarant State.
[p. 721 D.O. Torres Bernárdez] 385. My purpose in taking account, in the present context, of the international law of the sea has nothing to do with the merits of the case, namely the conformity or non-conformity of the Canadian measures with that law. The interpretation of the reservation and its silence on the subject are my sole reason for having turned to general international law, where I find that that law does not recognize measures such as those taken by Canada in this case in 1995 against Spanish vessels in the NAFO Regulatory Area as "conservation and management measures".
386. General international law also tells us that the content or factual object of the measures is not the only criterion to be taken into account in determining the existence of a "conservation and management measure" under international law. Other criteria come into play here, namely the maritime space concerned, whether or not the measures are unilateral, whether or not they are discriminatory, whether or not the specific measures taken aim at conservation, and so on. The FAO and United Nations Agreements referred to above simply serve to confirm the general international law of the sea on this subject.
387. I cannot therefore accept the conclusions of the Judgment on this issue as representing a natural and reasonable manner of construing the text of the reservation in the context of the declaration, having regard also to the intention of the declarant State as reflected in the supplementary means of interpretation submitted to the Court by the Parties.
[pp. 729-730 D.O. Torres Bernárdez] 412. As regards the use of force, as with the other aspects of the dispute, the task of the present incidental proceedings should be to determine whether such a form of enforcement of conservation and management measures is or is not excluded by the reservation in the Canadian declaration, the declaration being totally silent about force and its use. The declaration as a whole also tells us that in 1994 Canada gave its consent to the jurisdiction in regard to all disputes other than those enumerated in the reservations contained in the declaration itself (paras. 2 (a) to (d)).
413. In these circumstances, the use of force to enforce the measures contemplated in the reservation in subparagraph (d) cannot simply be taken for granted, since the international legal order contains a general prohibition on the use of force by States in international relations. One formulation of this general prohibition of the use of force, recognized by Canada itself as a peremptory norm, is to be found in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (I.C.J. Reports 1996, p. 247, para. 48). The Respondent has given no adequate explanation of why its declaration of 10 May 1994, including the reservation in subparagraph (d), is silent about the use of force.
414. To this initial contribution to the interpretation of the Canadian reservation, international law adds another which follows directly from the general law of the sea. The high seas are a maritime area reserved for peaceful purposes (Article 88 of the Montego Bay Convention), where no State is entitled to use force in order to enforce measures of conservation and management of living resources against vessels in that area flying the flag of another State. There is not a single provision in the Convention which permits any conclusion to the contrary. And these are rules of international law which, as customary or general law, are applicable between Canada and Spain.
415. A declarant State may, by way of reservation, exclude principles and
rules of international law in any sphere of international relations in
connection with its consent to the jurisdiction of the Court, but, clearly, it
must say so in its declaration, either expressly or by necessary implication,
since the silence of the declaration deposited operates not against, but in
favour of, the international law in force, notwithstanding the conclusions to
the contrary in this respect in the present Judgment.
In the present case, there also exists in relation to the area of the high
seas in question a multilateral treaty regime concerning the management and
conservation of the living resources of the area, that of the NAFO
Convention of 1978, to which the fishing vessels of the two Parties are
subject - a convention which the Canadian reservation expressly mentions for the
purpose of delimiting its geographical scope. Under this particular treaty
regime too, force may not be used in order to enforce measures of conservation
and management of resources against foreign vessels, in the absence of agreement
between the parties concerned (this is the position set out in document NAFO/FC
Doc. 96.1 mentioned in Paragraph 70 of the Judgment).
| 1 | Footnote omitted |
| 2 | Footnote omitted |
| 3 | Footnote omitted |
| 4 | Footnote omitted |
| 5 | Footnote omitted |
| 6 | Footnote omitted |
| 7 | Footnote omitted |
| 8 | Footnote omitted |
| 9 | Footnote omitted |
