PART ONE
THE INTERNATIONALLY WRONGFUL ACT OF A STATE
CHAPTER I
General principles
Article 1 – Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsibility of that
State.
Article 2 – Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of an action or
omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.
Article 3 – Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is governed by
international law. Such characterization is not affected by the characterization of the same act
as lawful by internal law.
CHAPTER II
Attribution of conduct to a State
Article 4 – Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of the State, and whatever its
character as an organ of the central government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the
internal law of the State.
Article 5 – Conduct of persons or entities exercising elements of governmental
authority
The conduct of a person or entity which is not an organ of the State under article 4 but
which is empowered by the law of that State to exercise elements of the governmental
authority shall be considered an act of the State under international law, provided the person
or entity is acting in that capacity in the particular instance.
Article 6 – Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be
considered an act of the former State under international law if the organ is acting in the
exercise of elements of the governmental authority of the State at whose disposal it is placed.
Article 7 – Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to exercise
elements of the governmental authority shall be considered an act of the State under
international law if the organ, person or entity acts in that capacity, even if it exceeds its
authority or contravenes instructions.
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Article 8 – Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or
under the direction or control of, that State in carrying out the conduct.
Article 9 – Conduct carried out in the absence or default of the official authorities
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact exercising elements of the
governmental authority in the absence or default of the official authorities and in
circumstances such as to call for the exercise of those elements of authority.
Article 10 – Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes the new government of a
State shall be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a
new State in part of the territory of a pre-existing State or in a territory under its
administration shall be considered an act of the new State under international law.
3. This article is without prejudice to the attribution to a State of any conduct, however
related to that of the movement concerned, which is to be considered an act of that State by
virtue of articles 4 to 9.
Article 11 – Conduct acknowledged and adopted by a State as its own
Conduct which is not attributable to a State under the preceding articles shall nevertheless
be considered an act of that State under international law if and to the extent that the State
acknowledges and adopts the conduct in question as its own.
CHAPTER III
Breach of an international obligation
Article 12 – Existence of a breach of an international obligation
There is a breach of an international obligation by a State when an act of that State is not
in conformity with what is required of it by that obligation, regardless of its origin or
character.
Article 13 – International obligation in force for a State
An act of a State does not constitute a breach of an international obligation unless the
State is bound by the obligation in question at the time the act occurs.
Article 14 – Extension in time of the breach of an international obligation
1. The breach of an international obligation by an act of a State not having a continuing
character occurs at the moment when the act is performed, even if its effects continue.
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2. The breach of an international obligation by an act of a State having a continuing
character extends over the entire period during which the act continues and remains not in
conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event
occurs when the event occurs and extends over the entire period during which the event
continues and remains not in conformity with that obligation.
Article 15 – Breach consisting of a composite act
1. The breach of an international obligation by a State through a series of actions or
omissions defined in aggregate as wrongful, occurs when the action or omission occurs
which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first of the
actions or omissions of the series and lasts for as long as these actions or omissions are
repeated and remain not in conformity with the international obligation.
CHAPTER IV
Responsibility of a State in connection with the act of another State
Article 16 – Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an internationally
wrongful act by the latter is internationally responsible for doing so if:
(a) That State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) The act would be internationally wrongful if committed by that State.
Article 17 – Direction and control exercised over the commission of an
internationally wrongful act
A State which directs and controls another State in the commission of an internationally
wrongful act by the latter is internationally responsible for that act if:
(a) That State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) The act would be internationally wrongful if committed by that State.
Article 18 – Coercion of another State
A State which coerces another State to commit an act is internationally responsible for
that act if:
(a) The act would, but for the coercion, be an internationally wrongful act of the coerced
State; and
(b) The coercing State does so with knowledge of the circumstances of the act.
Article 19 – Effect of this chapter
This chapter is without prejudice to the international responsibility, under other
provisions of these articles, of the State which commits the act in question, or of any other
State.
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CHAPTER V
Circumstances precluding wrongfulness
Article 20 – Consent
Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the extent that the act remains within
the limits of that consent.
Article 21 – Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure
of self-defence taken in conformity with the Charter of the United Nations.
Article 22 – Countermeasures in respect of an internationally wrongful act
The wrongfulness of an act of a State not in conformity with an international obligation
towards another State is precluded if and to the extent that the act constitutes a
countermeasure taken against the latter State in accordance with chapter II of Part Three.
Article 23 – Force majeure
1. The wrongfulness of an act of a State not in conformity with an international obligation
of that State is precluded if the act is due to force majeure, that is the occurrence of an
irresistible force or of an unforeseen event, beyond the control of the State, making it
materially impossible in the circumstances to perform the obligation.
2. Paragraph 1 does not apply if:
(a) The situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the State invoking it; or
(b) The State has assumed the risk of that situation occurring.
Article 24 – Distress
1. The wrongfulness of an act of a State not in conformity with an international obligation
of that State is precluded if the author of the act in question has no other reasonable way, in a
situation of distress, of saving the author’s life or the lives of other persons entrusted to the
author’s care.
2. Paragraph 1 does not apply if:
(a) The situation of distress is due, either alone or in combination with other factors, to
the conduct of the State invoking it; or
(b) The act in question is likely to create a comparable or greater peril.
Article 25 – Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness
of an act not in conformity with an international obligation of that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and
(b) Does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.
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2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:
(a) The international obligation in question excludes the possibility of invoking necessity;
or
(b) The State has contributed to the situation of necessity.
Article 26 – Compliance with peremptory norms
Nothing in this chapter precludes the wrongfulness of any act of a State which is not in
conformity with an obligation arising under a peremptory norm of general international law.
Article 27 – Consequences of invoking a circumstance precluding wrongfulness
The invocation of a circumstance precluding wrongfulness in accordance with this
chapter is without prejudice to:
(a) Compliance with the obligation in question, if and to the extent that the circumstance
precluding wrongfulness no longer exists;
(b) The question of compensation for any material loss caused by the act in question.
PART TWO
CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE
CHAPTER I
General principles
Article 28 – Legal consequences of an internationally wrongful act
The international responsibility of a State which is entailed by an internationally wrongful
act in accordance with the provisions of Part One involves legal consequences as set out in
this Part.
Article 29 – Continued duty of performance
The legal consequences of an internationally wrongful act under this Part do not affect the
continued duty of the responsible State to perform the obligation breached.
Article 30 – Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
(a) To cease that act, if it is continuing;
(b) To offer appropriate assurances and guarantees of non-repetition, if circumstances so
require.
Article 31 – Reparation
1. The responsible State is under an obligation to make full reparation for the injury
caused by the internationally wrongful act.
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2. Injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a State.
Article 32 – Irrelevance of internal law
The responsible State may not rely on the provisions of its internal law as justification for
failure to comply with its obligations under this Part.
Article 33 – Scope of international obligations set out in this Part
1. The obligations of the responsible State set out in this Part may be owed to another
State, to several States, or to the international community as a whole, depending in particular
on the character and content of the international obligation and on the circumstances of the
breach.
2. This Part is without prejudice to any right, arising from the international responsibility
of a State, which may accrue directly to any person or entity other than a State.
CHAPTER II
Reparation for injury
Article 34 – Forms of reparation
Full reparation for the injury caused by the internationally wrongful act shall take the
form of restitution, compensation and satisfaction, either singly or in combination, in
accordance with the provisions of this chapter.
Article 35 – Restitution
A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation.
Article 36 – Compensation
1. The State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good by
restitution.
2. The compensation shall cover any financially assessable damage including loss of
profits insofar as it is established.
Article 37 – Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by restitution
or compensation.
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2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret,
a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form
humiliating to the responsible State.
Article 38 – Interest
1. Interest on any principal sum due under this chapter shall be payable when necessary in
order to ensure full reparation. The interest rate and mode of calculation shall be set so as to
achieve that result.
2. Interest runs from the date when the principal sum should have been paid until the date
the obligation to pay is fulfilled.
Article 39 – Contribution to the injury
In the determination of reparation, account shall be taken of the contribution to the injury
by wilful or negligent action or omission of the injured State or any person or entity in
relation to whom reparation is sought.
CHAPTER III
Serious breaches of obligations under peremptory
norms of general international law
Article 40 – Application of this chapter
1. This chapter applies to the international responsibility which is entailed by a serious
breach by a State of an obligation arising under a peremptory norm of general international
law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by
the responsible State to fulfil the obligation.
Article 41 – Particular consequences of a serious breach of an obligation under this
chapter
1. States shall cooperate to bring to an end through lawful means any serious breach
within the meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the
meaning of article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and to
such further consequences that a breach to which this chapter applies may entail under
international law.
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PART THREE
THE IMPLEMENTATION OF THE INTERNATIONAL
RESPONSIBILITY OF A STATE
CHAPTER I
Invocation of the responsibility of a State
Article 42 – Invocation of responsibility by an injured State
A State is entitled as an injured State to invoke the responsibility of another State if the
obligation breached is owed to:
(a) That State individually; or
(b) A group of States including that State, or the international community as a whole, and
the breach of the obligation:
(i) Specially affects that State; or
(ii) Is of such a character as radically to change the position of all the other States to
which the obligation is owed with respect to the further performance of the obligation.
Article 43 – Notice of claim by an injured State
1. An injured State which invokes the responsibility of another State shall give notice of
its claim to that State.
2. The injured State may specify in particular:
(a) The conduct that the responsible State should take in order to cease the wrongful act,
if it is continuing;
(b) What form reparation should take in accordance with the provisions of Part Two.
Article 44 – Admissibility of claims
The responsibility of a State may not be invoked if:
(a) The claim is not brought in accordance with any applicable rule relating to the
nationality of claims;
(b) The claim is one to which the rule of exhaustion of local remedies applies and any
available and effective local remedy has not been exhausted.
Article 45 – Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) The injured State has validly waived the claim;
(b) The injured State is to be considered as having, by reason of its conduct, validly
acquiesced in the lapse of the claim.
Article 46 – Plurality of injured States
Where several States are injured by the same internationally wrongful act, each injured
State may separately invoke the responsibility of the State which has committed the
internationally wrongful act.
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Article 47 – Plurality of responsible States
1. Where several States are responsible for the same internationally wrongful act, the
responsibility of each State may be invoked in relation to that act.
2. Paragraph 1:
(a) Does not permit any injured State to recover, by way of compensation, more than the
damage it has suffered;
(b) Is without prejudice to any right of recourse against the other responsible States.
Article 48 – Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another
State in accordance with paragraph 2 if:
(a) The obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b) The obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the
responsible State:
(a) Cessation of the internationally wrongful act, and assurances and guarantees of nonrepetition in accordance with article 30; and
(b) Performance of the obligation of reparation in accordance with the preceding articles,
in the interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles
43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under
paragraph 1.
CHAPTER II
Countermeasures
Article 49 – Object and limits of countermeasures
1. An injured State may only take countermeasures against a State which is responsible
for an internationally wrongful act in order to induce that State to comply with its obligations
under Part Two.
2. Countermeasures are limited to the non-performance for the time being of international
obligations of the State taking the measures towards the responsible State.
3. Countermeasures shall, as far as possible, be taken in such a way as to permit the
resumption of performance of the obligations in question.
Article 50 – Obligations not affected by countermeasures
1. Countermeasures shall not affect:
(a) The obligation to refrain from the threat or use of force as embodied in the Charter of
the United Nations;
(b) Obligations for the protection of fundamental human rights;
(c) Obligations of a humanitarian character prohibiting reprisals;
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(d) Other obligations under peremptory norms of general international law.
2. A State taking countermeasures is not relieved from fulfilling its obligations:
(a) Under any dispute settlement procedure applicable between it and the responsible
State;
(b) To respect the inviolability of diplomatic or consular agents, premises, archives and
documents.
Article 51 – Proportionality
Countermeasures must be commensurate with the injury suffered, taking into account the
gravity of the internationally wrongful act and the rights in question.
Article 52 – Conditions relating to resort to countermeasures
1. Before taking countermeasures, an injured State shall:
(a) Call on the responsible State, in accordance with article 43, to fulfil its obligations
under Part Two;
(b) Notify the responsible State of any decision to take countermeasures and offer to
negotiate with that State.
2. Notwithstanding paragraph 1(b), the injured State may take such urgent
countermeasures as are necessary to preserve its rights.
3. Countermeasures may not be taken, and if already taken must be suspended without
undue delay if:
(a) The internationally wrongful act has ceased; and
(b) The dispute is pending before a court or tribunal which has the authority to make
decisions binding on the parties.
4. Paragraph 3 does not apply if the responsible State fails to implement the dispute
settlement procedures in good faith.
Article 53 – Termination of countermeasures
Countermeasures shall be terminated as soon as the responsible State has complied with
its obligations under Part Two in relation to the internationally wrongful act.
Article 54 – Measures taken by States other than an injured State
This chapter does not prejudice the right of any State, entitled under article 48, paragraph
1 to invoke the responsibility of another State, to take lawful measures against that State to
ensure cessation of the breach and reparation in the interest of the injured State or of the
beneficiaries of the obligation breached.
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LAW OF THE SEA
Anglo-Norwegian Fisheries Case
ICJ Reports, 1951, p.116
(Straight baselines in the measurement of territorial sea; the persistent objector)
The historical facts laid before the Court establish that as the result of complaints from
the King of Denmark and of Norway, at the beginning of the seventeenth century, British
fishermen refrained from fishing in Norwegian coastal waters for a long period, from 1616-
1618 until 1906.
In 1906 a few British fishing vessels appeared off the coasts of Eastern Finnmark. From
1908 onwards they returned in greater numbers. These were trawlers equipped with improved
and powerful gear. The local population became perturbed, and measures were taken by the
Norwegian Government with a view to specifying the limits within which fishing was
prohibited to foreigners.
The first incident occurred in 1911 when a British trawler was seized and condemned for
having violated these measures. Negotiations ensued between the two Governments. These
were interrupted by the war in 1914. From 1922 onwards incidents recurred. Further
conversations were initiated in 1924. In 1932, British trawlers, extending the range of their
activities, appeared in the sectors off the Norwegian coast west of the North Cape, and the
number of warnings and arrests increased. On July 27th, 1933, the United Kingdom
Government sent a memorandum to the Norwegian Government complaining that in
delimiting the territorial sea the Norwegian authorities had made use of unjustifiable baselines. On July 12th, 1935, a Norwegian Royal Decree was enacted delimiting the Norwegian
fisheries zone north of 66″ 28.8′ North latitude.
The United Kingdom made urgent representations in Oslo in the course of which the
question of referring the dispute to the Permanent Court of International Justice was raised.
Pending the result of the negotiations, the Norwegian Government made it known that
Norwegian fishery patrol vessels would deal leniently with foreign vessels fishing a certain
distance within the fishing limits. In 1948, since no agreement had been reached, the
Norwegian Government abandoned its lenient enforcement of the 1935 Decree; incidents then
became more and more frequent. A considerable number of British trawlers were arrested and
condemned. It was then that the United Kingdom Government instituted the present
proceedings.
The Norwegian Royal Decree of July 12th, 1935, concerning the delimitation of the
Norwegian fisheries zone sets out in the preamble the considerations on which its provisions
are based. In this connection it refers to “well-established national titles of right”, “the
geographical conditions prevailing on the Norwegian coasts”, “the safeguard of the vital
interests of the inhabitants of the northernmost parts of the country”; it further relies on the
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Royal Decrees of February 22nd, 1812, October 16th, 1869, January 5th, 1881, and
September 9th, 1889.
The subject of the dispute is clearly indicated under point 8 of the Application instituting
proceedings: “The subject of the dispute is the validity or otherwise under international law of
the lines of delimitation of the Norwegian fisheries zone laid down by the Royal Decree of
1935 for that part of Norway which is situated northward of 66″ 28.8′ North latitude.” And
further on: “…. the question at issue between the two Governments is whether the lines
prescribed by the Royal Decree of 1935 as the base-lines for the delimitation of the fisheries
zone have or have not been drawn in accordance with the applicable rules of international
law”.
Although the Decree of July 12th, 1935, refers to the Norwegian fisheries zone and does
not specifically mention the territorial sea, there can be no doubt that the zone delimited by
this Decree is none other than the sea area which Norway considers to be her territorial sea.
The Norwegian Government does not deny that there exist rules of international law to
which this delimitation must conform. It contends that the propositions formulated by the
United Kingdom Government in its “Conclusions” do not possess the character attributed to
them by that Government. It further relies on its own system of delimitation which it asserts
to be in every respect in conformity with the requirements of international law.
The coastal zone concerned in the dispute is of considerable length. It lies north of
latitude 66″ 28.8′ N., that is to say, north of the Arctic Circle, and it includes the coast of the
mainland of Norway and all the islands, islets, rocks and reefs, known by the name of the
“skjaergaard” (literally, rock rampart), together with all Norwegian interna1 and territorial
waters.
Along the coast are situated comparatively shallow banks, veritable under-water terraces
which constitute fishing grounds where fish are particularly abundant; these grounds were
known to Norwegian fishermen and exploited by them from time immemorial. Since these
banks lay within the range of vision, the most desirable fishing grounds were always located
and identified by means of the method of alignments at points where two lines drawn between
points selected on the coast or on islands intersected.
In these barren regions the inhabitants of the coastal zone derive their livelihood
essentially from fishing.
Such are the realities which must be borne in mind in appraising the validity of the United
Kingdom contention that the limits of the Norwegian fisheries zone laid down in the 1935
Decree are contrary to international law.
The Parties being in agreement on the figure of 4 miles for the breadth of the territorial
sea, the problem which arises is from what base-line this breadth is to be reckoned. The
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Conclusions of the United Kingdom are explicit on this point: the base-line must be lowwater mark on permanently dry land which is a part of Norwegian territory, or the proper
closing line of Norwegian interna1 waters.
The Court has no difficulty in finding that, for the purpose of measuring the breadth of
the territorial sea, it is the low-water mark as opposed to the high-water mark, or the mean
between the two tides, which has generally been adopted in the practice of States. This
criterion is the most favourable to the coastal State and clearly shows the character of
territorial waters as appurtenant to the land territory. The Court notes that the Parties agree as
to this criterion, but that they differ as to its application.
The Parties also agree that in the case of a low-tide elevation (drying rock) the outer edge
at low water of this low-tide elevation may be taken into account as a base-point for
calculating the breadth of the territorial sea.
The Court finds itself obliged to decide whether the relevant low water mark is that of the
mainland or of the “skjaergaard”. Since the mainland is bordered in its western sector by the
“skjaergaard”, which constitutes a whole with the mainland, it is the outer line of the
“skjaergaard” which must be taken into account in delimiting the belt of Norwegian territorial
waters. This solution is dictated by geographic realities.
Three methods have been contemplated to effect the application of the low-water mark
rule. The simplest would appear to be the method of the tracé parallèle, which consists of
drawing the outer limit of the belt of territorial waters by following the coast in all its
sinuosities. This method may be applied without difficulty to an ordinary coast, which is not
too broken. Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or
where it is bordered by an archipelago such as the “skjaergaard” along the western sector of
the coast here in question, the base-line becomes independent of the low-water mark, and can
only be determined by means of a geometrical construction. In such circumstances the line of
the low-water mark can no longer be put forward as a rule requiring the coastline to be
followed in all its sinuosities. Nor can one characterize as exceptions to the rule the very
many derogations which would be necessitated by such a rugged coast: the rule would
disappear under the exceptions. Such a coast, viewed as a whole, calls for the application of a
different method; that is, the method of base-lines which, within reasonable limits, may depart
from the physical line of the coast.
The principle that the belt of territorial waters must follow the general direction of the
coast makes it possible to fix certain criteria valid for any delimitation of the territorial sea;
these criteria will be elucidated later. The Court will confine itself at this stage to noting that,
in order to apply this principle, several States have deemed it necessary to follow the straight
base-lines method and that they have not encountered objections of principle by other States.
This method consists of selecting appropriate points on the low-water mark and drawing
straight lines between them. This has been done, not only in the case of well-defined bays, but
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also in cases of minor curvatures of the coastline where it was solely a question of giving a
simpler form to the belt of territorial waters.
It has been contended, on behalf of the United Kingdom, that Norway may draw straight
lines only across bays. The Court is unable to share this view. If the belt of territorial waters
must follow the outer line of the “skjaergaard”, and if the method of straight baselines must be
admitted in certain cases, there is no valid reason to draw them only across bays, as in Eastern
Finnmark, and not also to draw them between islands, islets and rocks, across the sea areas
separating them, even when such areas do not fall within the conception of a bay. It is
sufficient that they should be situated between the island formations of the “skjaergaard”,
inter fauces terrarum.
The Court now comes to the question of the length of the baselines drawn across the
waters lying between the various formations of the “skjaergaard”. Basing itself on the analogy
with the alleged general rule of ten miles relating to bays, the United Kingdom Government
still maintains on this point that the length of straight lines must not exceed ten miles.
In this connection, the practice of States does not justify the formulation of any general
rule of law. The attempts that have been made to subject groups of islands or coastal
archipelagoes to conditions analogous to the limitations concerning bays (distance between
the islands not exceeding twice the breadth of the territorial waters, or ten or twelve sea
miles), have not got beyond the stage of proposals.
Furthermore, apart from any question of limiting the lines to ten miles, it may be that
several lines can be envisaged. In such cases the coastal State would seem to be in the best
position to appraise the local conditions dictating the selection.
Consequently, the Court is unable to share the view of the United Kingdom Government,
that “Norway, in the matter of base-lines, now claims recognition of an exceptional system”.
As will be shown later, all that the Court can see therein is the application of general
international law to a specific case.
Thus the Court, confining itself for the moment to the Conclusions of the United
Kingdom, finds that the Norwegian Government in fixing the base-lines for the delimitation
of the Norwegian fisheries zone by the 1935 Decree has not violated international law.
It does not at all follow that, in the absence of rules having the technically precise
character alleged by the United Kingdom Government, the delimitation undertaken by the
Norwegian Government in 1935 is not subject to certain principles which make it possible to
judge as to its validity under international law. The delimitation of sea areas has always an
international aspect; it cannot be dependent merely upon the will of the coastal State as
expressed in its municipal law. Although it is true that the act of delimitation is necessarily a
unilateral act, because only the coastal State is competent to undertake it, the validity of the
delimitation with regard to other States depends upon international law.
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In this connection, certain basic considerations inherent in the nature of the territorial sea,
bring to light certain criteria which, though not entirely precise, can provide courts with an
adequate basis for their decisions, which can be adapted to the diverse facts in question.
Among these considerations, some reference must be made to the close dependence of the
territorial sea upon the land domain. It is the land which confers upon the coastal State a right
to the waters off its coasts. It follows that while such a State must be allowed the latitude
necessary in order to be able to adapt its delimitation to practical needs and local
requirements, the drawing of base-lines must not depart to any appreciable extent from the
general direction of the coast.
Another fundamental consideration, of particular importance in this case, is the more or
less close relationship existing between certain sea areas and the land formations which divide
or surround them. The real question raised in the choice of base-lines is in effect whether
certain sea areas lying within these lines are sufficiently closely linked to the land domain to
be subject to the regime of internal waters. This idea, which is at the basis of the
determination of the rules relating to bays, should be liberally applied in the case of a coast,
the geographical configuration of which is as unusual as that of Norway.
Finally, there is one consideration not to be overlooked, the scope of which extends
beyond purely geographical factors: that of certain economic interests peculiar to a region, the
reality and importance of which are clearly evidenced by a long usage.
Norway puts forward the 1935 Decree as the application of a traditional system of
delimitation, a system which she claims to be in complete conformity with international law.
The Norwegian Government has referred in this connection to an historic title, the meaning of
which was made clear by Counsel for Norway at the sitting on October 12th 1951 : “The
Norwegian Government does not rely upon history to justify exceptional rights, to claim areas
of sea which the general law would deny ; it invokes history, together with other factors, to
justify the way in which it applies the general law.” This conception of an historic title is in
consonance with the Norwegian Government’s understanding of the general rules of
international law. In its view, these rules of international law take into account the diversity of
facts and, therefore, concede that the drawing of base-lines must be adapted to the special
conditions obtaining in different regions. In its view, the system of delimitation applied in
1935, a system characterized by the use of straight lines, does not therefore infringe the
general law; it is an adaptation rendered necessary by local conditions.
The Court must ascertain precisely what this alleged system of delimitation consists of,
what is its effect in law as against the United Kingdom, and whether it was applied by the
1935 Decree in a manner which conformed to international law.
The 1869 Statement of Reasons brings out all the elements which go to make up what the
Norwegian Government describes as its traditional system of delimitation: base-points
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provided by the islands or islets farthest from the mainland, the use of straight lines joining up
these points, the lack of any maximum length for such lines. The judgment of the Norwegian
Supreme Court in the St. Just case upheld this interpretation and added that the 1812 Decree
had never been understood or applied “in such a way as to make the boundary follow the
sinuosities of the coast or to cause its position to be determined by means of circles drawn
round the points of the Skjzrgaard or of the mainland furthest out to sea-a method which it
would be very difficult to adopt or to enforce in practice, having regard to the special
configuration of this coast”. Finally, it is established that, according to the Norwegian system,
the base-lines must follow the general direction of the coast, which is in conformity with
international law.
In the light of these considerations, and in the absence of convincing evidence to the
contrary, the Court is bound to hold that the Norwegian authorities applied their system of
delimitation consistently and uninterruptedly from 1869 until the time when the dispute arose.
From the standpoint of international law, it is now necessary to consider whether the
application of the Norwegian system encountered any opposition from foreign States.
Norway has been in a position to argue without any contradiction that neither the
promulgation of her delimitation Decrees in 1869 and in 1889, nor their application, gave rise
to any opposition on the part of foreign States. Since, moreover, these Decrees constitute, as
has been shown above, the application of a well-defined and uniform system, it is indeed this
system itself which would reap the benefit of general toleration, the basis of an historical
consolidation which would make it enforceable as against all States.
The general toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than sixty years the United Kingdom Government
itself in no way contested it. It would appear that it was only in its Memorandum of July 27th,
1933, that the United Kingdom made a forma1 and definite protest on this point.
The United Kingdom Government has argued that the Norwegian system of delimitation
was not known to it and that the system therefore lacked the notoriety essential to provide the
basis of an historic title enforceable against it. The Court is unable to accept this view. As a
coastal State on the North Sea, greatly interested in the fisheries in this area, as a maritime
Power traditionally concerned with the law of the sea and concerned particularly to defend the
freedom of the seas, the United Kingdom could not have been ignorant of the Decree of 1869
which had at once provoked a request for explanations by the French Government. Nor,
knowing of it, could it have been under any misapprehension as to the significance of its
terms, which clearly described it as constituting the application of a system.
Norway’s attitude with regard to the North Sea Fisheries (Police) Convention of 1882 is
a further fact which must at once have attracted the attention of Great Britain. There is
scarcely any fisheries convention of greater importance to the coastal States of the North Sea
or of greater interest to Great Britain. Norway’s refusal to adhere to this Convention clearly
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raised the question of the delimitation of her maritime domain, especially with regard to bays,
the question of their delimitation by means of straight lines of which Norway challenged the
maximum length adopted in the Convention. Having regard to the fact that a few years before,
the delimitation of Sunnmore by the 1869 Decree had been presented as an application of the
Norwegian system, one cannot avoid the conclusion that, from that time on, all the elements
of the problem of Norwegian coastal waters had been clearly stated. The steps subsequently
taken by Great Britain to secure Norway’s adherence to the Convention clearly show that she
was aware of and interested in the question.
The Court notes that in respect of a situation which could only be strengthened with the
passage of time, the United Kingdom Government refrained from formulating reservations.
The notoriety of the facts, the general toleration of the international community, Great
Britain’s position in the North Sea, her own interest in the question, and her prolonged
abstention would in any case warrant Norway’s enforcement of her system against the United
Kingdom. The Court is thus led to conclude that the method of straight lines, established in
the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that
even before the dispute arose, this method had been consolidated by a constant and
sufficiently long practice, in the face of which the attitude of governments bears witness to
the fact that they did not consider it to be contrary to international law.
