Fisheries Case (United Kingdom v. Norway) (1951)

It is the source of the straight baseline method, which is now Article 7 of the Convention on the Law of the Sea. It is also a leading case on historical consolidation and on the effect of a State's failure to protest, which is the doctrinal root of the persistent objector rule.

After complaints from the King of Denmark and of Norway at the beginning of the seventeenth century, British fishermen stayed out of Norwegian coastal waters from 1616 to 1618 until 1906. In 1906 a few British trawlers appeared off Eastern Finnmark, and from 1908 they returned in greater numbers with improved and powerful gear. The local population was disturbed, and Norway began specifying the limits within which fishing was prohibited to foreigners.

A British trawler was seized and condemned in 1911. Negotiations were interrupted by the war of 1914. Incidents recurred from 1922. In 1932 British trawlers extended their range west of the North Cape and warnings and arrests increased. On 27 July 1933 the United Kingdom sent a memorandum complaining that Norway had used unjustifiable baselines. On 12 July 1935 a Norwegian Royal Decree delimited the fisheries zone north of 66 degrees 28.8 minutes north latitude, selecting base-points among the islands and islets of the skjaergaard, the coastal rock rampart, and joining them by straight lines with no maximum length. Norway enforced the Decree leniently pending negotiations, abandoned that leniency in 1948, and the United Kingdom brought the case.

1. Is there a rule of international law limiting the length of straight baselines, and in particular a ten-mile rule?
2. Is the validity of delimitation a matter for the coastal State alone?
3. Was the Norwegian system contrary to international law, and was it in any event opposable to the United Kingdom?

The Norwegian Government, in fixing the baselines by the 1935 Decree, had not violated international law, and the method of straight lines was enforceable against the United Kingdom.

No ten-mile rule. The United Kingdom argued by analogy with bays that straight lines must not exceed ten miles. The Court refused: "the practice of States does not justify the formulation of any general rule of law." Attempts to subject groups of islands or coastal archipelagoes to conditions analogous to bays had "not got beyond the stage of proposals." And where several lines can be envisaged, "the coastal State would seem to be in the best position to appraise the local conditions dictating the selection."

Nor was Norway claiming an exception. The Court could not share the view that Norway now claimed "recognition of an exceptional system"; all it could see was the application of general international law to a specific case.

Delimitation is unilateral in act, international in validity. This is the sentence to quote in any answer on baselines: "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."

The three governing considerations. Absent a technically precise rule, the Court identified criteria which, though not entirely precise, give courts an adequate basis and can be adapted to diverse facts.

1. The land dominates the sea. The territorial sea is closely dependent on the land domain; it is the land which confers upon the coastal State a right to the waters off its coasts. Hence, while latitude must be allowed for practical needs and local requirements, "the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast." 2. The link to the land domain. The real question is "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." The idea underlies the rules on bays and should be liberally applied where the geography is as unusual as Norway's. 3. Economic interests. A consideration extending beyond purely geographical factors, namely "certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage."

All three survive, almost word for word, in Article 7 of the 1982 Convention.

Historic title, properly understood. Counsel for Norway put the point with care and the Court adopted it: Norway "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." History is used to show that an application of the general rules is the right one for this coast, not to claim a privilege outside them.

Consistency of the system. The 1869 Statement of Reasons disclosed the elements of the traditional system: base-points on the outermost islands and islets, straight lines joining them, and no maximum length. The Norwegian Supreme Court in the St Just case had upheld that reading and had rejected any boundary following the sinuosities of the coast. In the absence of convincing evidence to the contrary, the Court held that Norway had applied the system "consistently and uninterruptedly from 1869 until the time when the dispute arose."

Toleration and the failure to protest. Neither the promulgation of the 1869 and 1889 Decrees nor their application had provoked opposition from foreign States. Since the Decrees applied 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 United Kingdom said it had not known of the system. The Court rejected this. As a North Sea coastal State greatly interested in these fisheries, a maritime Power traditionally concerned with the law of the sea, the United Kingdom could not have been ignorant of the 1869 Decree, which had at once provoked a request for explanations from France; nor could it have misunderstood terms which clearly described a system. Norway's refusal to adhere to the North Sea Fisheries (Police) Convention of 1882, a convention of the first importance to Great Britain, raised the question of Norwegian delimitation squarely, and British efforts to secure Norwegian adherence show she was aware of and interested in it.

The conclusion is the classic statement of the point: "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."

• For a baselines question, give the three considerations, then show that each is now in Article 7 of the 1982 Convention: general direction of the coast in paragraph 3, the close link to the land domain in paragraph 3, and economic interests evidenced by long usage in paragraph 5.
• For a custom question, this is the case on acquiescence by silence: notoriety plus toleration plus prolonged abstention from protest produced opposability. The negative inference is the persistent objector rule: a State that does protest, early and consistently, is not bound.
• Do not overstate the holding. The Court did not say a coastal State may draw whatever lines it likes. It said the act is unilateral but its validity depends on international law.
• Contrast with North Sea Continental Shelf, decided eighteen years later, where the Court refused to find that a widely used method had become law. Here a system became opposable through toleration; there a practice failed for want of opinio juris.