Fishing Rights and Customary International Law

Introduction

• Case revolves around fishing rights in the North Sea.
• Importance tied to how international law is made.

Making of International Law

• No International Parliament to make and impose laws.
• United Nations General Assembly resembles a world parliament but lacks direct legislative power.
• Ways international law is made:
  • Multilateral treaties (negotiated, but require country sign-ups).
  • Bilateral treaties (agreements between two countries).
  • Customary international law (historically evolved practices between peoples and kingdoms).

Historical Context

• Great Britain and Norway as close neighbors with seafaring traditions.
• Early 1600s: Norway and Britain agree only Norwegians would fish near Norway's coast.
• Early 20th century: Typical coastal territorial waters extend 4 nautical miles from the low-water mark.
• Norway's complex coastline with fjords and skerries (rocky outcrops).

The Dispute

• Norway considers skerries part of the mainland, measuring 4 miles from these, extending territorial waters.
• 1906: British fishermen fish close to Norwegian coast, claiming to be in international waters.
• Norway disputes, leading to a case in the International Court of Justice.

Court's Decision-Making Process

Three-Step Process to Identify Customary International Law

1. Historical Evidence
   • Reviewing historical records for evidence of customary practices.
   • Norway shown to follow the same boundary practice since mid-19th century.
2. Openness and Peacefulness
   • Custom must be practiced openly and peacefully, not kept secret or enforced defiantly.
   • Evidence of Norway maintaining its policy in diplomatic relations (e.g., with France).
3. Objections from Other Nations
   • Consideration whether neighboring countries ever objected.
   • No consistent objections noted, e.g., France’s acceptance since 1869.

Outcome

• Court recognized Norway’s practice of measuring territorial waters from the skerries as customary international law.
• Established a method to derive customary international law:
  • Evidence of long-standing practice.
  • Open and peaceful practice.
  • Lack of consistent objections from other nations.

Broader Impact

• Case set key rules for identifying customary international law.
• These rules remain relevant for future international law disputes.

Conclusion

• The formal system of international law has stabilized over the past century.
• Rules from the North Sea Fisheries case guide the identification of customary international law.

Thank you.