Anglo Norwegian Fisheries Case (Summary on Customary International 

Law)
Case Name: Anglo Norwegian Fisheries Case (UK vs Norway)
Year of Decision: 1951. 

The Court was asked to decide, amongst others, the validity, under international law, of the
methods used to delimit Norway’s territorial sea/ fisheries zone. We will not discuss the
technical aspects of the judgment relating to the delimitation, but focus on the Court’s
conclusions relating to customary international law.

Facts:

The United Kingdom requested the court to decide if Norway had used a legally acceptable
method in drawing the baseline from which it measured its territorial sea. The United Kingdom
argued that customary international law did not allow the length of a baseline drawn across a bay
to be longer than ten miles. Norway argued that its delimitation method was consistent with
general principles of international law.

Issue:
Whether or not the customary international law would apply in the case?

Ruling:

No, The Customary law rule would not apply in this case. In the formation of customary rule,
the Court referred to (1) positive State practice and (2) lack of contrary State practice as a
confirmation of an existing rule of customary international law.

In this case even if the customary law rule existed on the 10 mile rule, the 10-mile rule would
appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to
apply it to the Norwegian Coast. In this case also, the Court appears to support the idea that an
existing customary law rule would not apply to a state if it objected to any outside attempts to
apply the rule to itself, at the initial stages and in a consistent manner, and if other states did not
object to her resistance, this is what we call Persistent Objector Rule.

Thus, the fact that this consistent and sufficiently long practice took place without any objection
to the practice from other states (until the time of dispute) indicated that states did not consider
the Norweigan system to be contrary to international law.
The court ruled that it would not apply to a state if (1) it objected to the application of the rule to
itself (2) at the initial stages and (3) in a consistent manner. The Anglo Norwegian Fisheries
Case, thus, supports the Asylum Case (Peru vs Colombia) in articulating what we now call the
persistent objector rule.

In this case, The Court upheld the Norwegian method of delimitation of the territorial sea and its
fixing of actual baselines.) On the other hand, where there is no practice which goes against an
alleged rule of customary law, it seems that a small amount of practice is sufficient to create a
customary rule, even though the practice involves only a small number of states and has lasted
for only a short time.

Customary international law does not recognize the rule according to which belts of
territorial waters of coastal states is to be measured.

As noted by the ICJ in the Fisheries case, minor inconsistencies (that is, a small amount of
practice which goes against the rule in question) do not prevent the creation of a customary
rule,50 although in such cases the rule in question probably needs to be supported by a large
amount of practice, in order to outweigh the conflicting practice in question.51 (The Fisheries
case concerned British claims against Norway for introducing national legislation on exclusive
fishing rights in the waters surrounding Norway’s entire coastline north of the Arctic Circle.

The Court held that the fact that this consistent and sufficiently long practice took place without
any objection to the practice from other States (until the time of dispute) indicated that these
States did not consider the Norwegian system to be “contrary to international law”.

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.
Findings of the Court
1. The formation of customary law
The Court referred to (1) positive State practice and (2) lack of contrary State practice  as a
confirmation of an existing rule of customary international law (see p. 17 and 18). There was no
mention of opinio juris in this early judgment.
In the following passage, the Court considered expressed dissent by States regarding a particular
practice to be detrimental to the existence of an alleged general rule. Yet, the Court did not
examine further whether these States adopted a contrary practice because, for example, (1) they
were claiming an exception to the rule (see the Nicaragua jurisprudence) or (2) because
they believed that the said rule did not possess the character of customary law.
“In these circumstances the Court deems it necessary to point out that although the ten-mile rule
has been adopted by certain States both in their national law and in their treaties and
conventions, and although certain arbitral decisions have applied it as between these States,
other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the
authority of a general rule of international law.”

 Customary international law does not recognize the rule according to which belts of
territorial waters of coastal states is to be measured.

1.1. The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned
ten-mile rule,
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has
always opposed any attempt to apply it to the Norwegian coast.”
In this case, the Court appears to support the idea that an existing customary law rule would not
apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages and
(3) in a consistent manner. The Anglo Norwegian Fisheries Case, thus, supports the Asylum
Case (Peru vs Colombia) in articulating what we now call the persistent objector rule.
a. Initial objection
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in
spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance
would not appear to me to have acquired the force of international law. Still less would it appear
to have any foundation in reality…”
The Court held that “Language of this kind can only be construed as the considered expression
of a legal conception regarded by the Norwegian Government as compatible with international
law”.  Thus, the Court held that Norway had refused to accept the rule as regards to it in 1870. 
b. Sustained objection
The Court also went on to hold that Norway had followed the principles of delimitation that it
considered a part of its system in a consistent and uninterrupted manner from 1869 until the time
of the dispute.
In establishing consistent practice, the Court held that “…too much importance need not be
attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom
Government claims to have discovered in Norwegian practice.”
c.  No objection by other States
The Court held that the 10-mile rule did not form a part of the general law and, in any event,
could not bind Norway because of the latter’s objections. Next, the Court inquired whether the
Norwegian system of delimitation was nevertheless contrary to international law. To do so, the
Court relied on state practice once more.
“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… 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.”
 
1.2. Contrary State practice of Norway? 
In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e.
that its practice was not contrary to international law). It emphasized that its practice – even if it
was a deviation from the general practice – was in conformity with international law (see page
21).
  “In its (Norway’s) 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 held that the fact that this consistent and sufficiently long practice took place without
any objection to the practice from other States (until the time of dispute) indicated that these
States did not consider the Norwegian system to be “contrary to international law”.
“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 consistent 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.”
2. Relationship between international and national law
The Court alluded to the relationship between national and international law in delimitation of
maritime boundaries. In delimitation cases, States “must be allowed the latitude necessary in
order to be able to adapt its delimitation to practical needs and local requirements…” The Court
would also consider “…certain economic interests peculiar to a region, the reality and
importance of which are clearly evidenced by a long usage.” However, while the act of
delimitation can be undertaken by the State, its legal validity depends on 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. (p. 20)”
Further reading:
T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in
International Law’, 26 Harvard International Law Journal, 1985, p. 457,
J. Charney, ‘The Persistent Objector Rule and the Development of Customary International
Law’, 56 BYIL, 1985, p. 1.
“In fact, the two international court of justice cases which appear to support the persistent
objector rule both arose in circumstances where the new rule itself was in substantial doubt.
Thus, it was significantly easier for the objector to maintain its status. No case is cited for a
circumstance in which the objector effectively maintained its status after the rule became well
accepted in international law. In fact, it is unlikely that such a status can be maintained din light
of the realities of the international legal system. This is certainly the plight that befell the US,
The UK and Japan in the law of the sea. Their objections to expanded coastal state jurisdiction
were ultimately to no avail, and they have been forced to accede to 12-mile territorial seas and
the 200-mile exclusive economic zone. “
Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp. 236 –
239.
  “The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At issue
was whether Norway had used a legally acceptable method in drawing the baseline from which
it measured its territorial sea. The United Kingdom argued that CIL did not allow the length of a
baseline drawn across a bay to be longer than ten miles. Again, as with the Asylum Case, the
primary holding of the case was that the alleged CIL rule did not exist. In the alternative, the
court briefly remarked that, had the rule existed, it would not have applied against Norway
because Norway had “always opposed any attempt to apply it to the Norwegian coast.”This
language is often cited in support of the persistent objector doctrine, but it could just as easily be
read to support the Default View of CIL, since there is nothing in this language that suggests
that Norway’s opposition must have occurred prior to the establishment of the alleged rule of
CIL. The arguments of the parties do not resolve this uncertainty: although the United Kingdom
appears to have supported something like the modern persistent objector doctrine, at least for
rights historically exercised by a state (while asserting that Norway had not met its
requirements),Norway (which prevailed in the case) appears to have supported something closer
to the Default View.
  The Asylum and Fisheries decisions provide no more than passing and ambiguous support for
the doctrine. State practice since those decisions is also relatively unhelpful, since there have
been essentially no instances in which states have invoked the doctrine. As Professor Stein
reported in a 1985 article, his research had “failed to turn up any case where an author
provided even one instance of a state claiming or granting an exemption from a rule on the basis
of the persistent objector principle—excepting of course the Asylum and Fisheries cases
themselves.”
The Anglo-Norwegian Fisheries Case
Info: 1540 words (6 pages) Law Essay
Published: 3rd Jul 2019
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Since 1911 British trawlers had been seized and condemned for violating measures taken by the
Norwegian government specifying the limits within which fishing was prohibited to foreigners.
In 1935, a decree was adopted establishing the lines of delimitation of the Norwegian fisheries
zone.
On 24th September 1949 the government of the United Kingdom filed the registry of the
international court of justice an application instituting proceedings against Norway. The subject
of the proceeding was the validity, under international law, of the lines of delimitation of the
Norwegian fisheries zone as set forth in a Decree of 12th July 1935.
The application referred to the declaration by which the united Kingdom and Norway had
accepted the compulsory jurisdiction of the International Court of Justice in accordance with
article 36 (2) of its statute.
The parties involved in this case were Norway and the United Kingdom, of Great Britain and
Northern Ireland. The implementation of the Royal Norwegian Decree of the 1935 was met with
resistance from the United Kingdom. The decree covers the drawing of straight lines, called
“baselines” 4 miles deep into the sea. This 4 miles area is reserved fishing exclusive for
Norwegian nationals. Under article 36(2) both UK and Norway were willing to accept the
jurisdiction of the ICJ on this case and with no appeal. The issues that constitute the case were
submitted to the court and the arguments presented by both countries. The issues claims the court
to: declare the principles of international law applicable in defining the baselines by reference to
which Norwegian government was entitled to delimit a fisheries zone and exclusively reserved to
its nationals; and to define the said “base lines” in the light of the arguments of the parties in
order to avoid further legal difference; and secondly to award damages to the government of the
United Kingdom in respect of all interferences by the Norwegian authorities with British fishing
vessels outside the fisheries zone, which in accordance with ICJ’s decision, the Norwegian
government may be entitled to reserve for its nationals.
The United Kingdom argued that;
 Norway could only draw straight lines across bays
 The length of lines drawn on the formations of the Skaergaard fjord must not exceed 10
nautical miles( the 10 Mile rule)
 That certain lines did not follow the general direction of the coast or did not follow it
sufficiently , or they did not respect certain connection of sea and land separating them
 That the Norwegian system of delimitation was unknown to the British and lack the
notoriety to provide the basis of historic title enforcement upon opposable to by the
United Kingdom
The Kingdom of Norway argued;
 That the base lines had to be drawn in such a way as to respect the general direction of
the coast and in a reasonable manner.
The case was submitted to the International Court of Justice by the government of the United
Kingdom. The government of United Kingdom wants the ICJ to declare the validity of the base
lines under international law and receive compensation for damages caused by Norwegian
authorities as to the seizures of British Fishing vessels.
The judgment of the court first examines the applicability of the principles put forward by the
government of the UK, then the Norwegian system, and finally the conformity of that system
with international law. The first principle put forward by the UK is that the baselines must be
low water mark, this indeed is the criterion generally adopted my most states and but differ as to
its application. (Johnson 154). The court considered the methods of drawing the lines but, the
court rejected the “trace Parallele” which consists of drawing the outer limits of the belt
following the coast and all its sinuosity. The court also rejected the “courbe tangent” (arcs of a
circle) and it is not obligatory under international law to use these methods of drawing the lines.
The court also paid particular attention to the geographical aspect of the case. The geographical
realities and historic control of the Norwegian coast inevitably contributed to the final decision
by the ICJ. The coast of Norway is too indented and is an exception under international law from
the 3 miles territorial waters rule. The fjords, Sunds along the coastline which have the
characteristic of a bay or legal straits should be considered Norwegian for historical reasons that
the territorial sea should be measured from the line of low water mark. So it was agreed on the
outset of both parties and the court that Norway had the right to claim a 4 mile belt of territorial
sea. The court concluded that it was the outer line of the Skaergaard that must be taken into
account in admitting the belt of the Norwegian territorial waters. (Johnson 154- 158). “There is
one consideration not to be overlooked, the scope of which extends beyond geographical factors.
That of certain economic interests peculiar to a region, the reality and importance of which are
clearly evidenced by a long usage” (Johnson 160)
The law relied upon mainly international Law of the sea; how far a state can modify its territorial
waters and its control over it, exclusively reserving fishing for its nationals. In this case, rules
that are practiced for instance how long a baseline should be. Only a 10 mile long straight line
is allowed and this has been the practice by most states however it is different in the case of
Norway because of Norway’s geographic indentation, islands and islets.
The international customary law has been a law of reference in the court arguments. Judge Read
from Canada asserts that Customary international law does not recognize the rule according to
which belts of territorial waters of coastal states is to be measured. More so public international
law has been relied upon in this case. It regulates relation between states; the United Kingdom
and Norway.
Maritime Law
Coastline Rule
The judgment was rendered in favor of Norway on the 18th December 1951. By 10 votes to 2 the
court held that the method employed in the delimitation of the fisheries zone by the Royal
Norwegian decree of the 12th July 1935 is not contrary to international law. By 8 votes to 4
votes the court also held that the base lines fixed by this decree in application are not contrary to
international law. However there are separate opinions and dissenting opinions from the judges
in the court.
Judge Hackworth declared that he concurred with the operative part of the judgment because he
considered that the Norwegian government had proved the existence of historic title of the
disputed areas of water.
Judge Alvarez from Chile relied on the evolving principles of the law of nations applicable to the
law of the sea.
 States have the right to modify the extent of the of their territorial sea
 Any state directly concerned may object to another state’s decision as to the extent of its
territorial sea
 International status of bays and straits must be determined by the coastal state directly
concerned with due regard to the general interest and
 Historic rights and concept of prescription in international law.
Judge Hsu Mo from china opinions diverge from the court’s with regards to conformity with
principles of international law to the straight lines drawn by the Decree of 1935. He allowed
possibility in certain circumstances, for instance, belt measured at low tide, Norway’s geographic
and historic conditions. But drawing the straight lines as of the 1935 degree is a moving away
from the practice of the general rule. (Johnson 171)
The dissenting opinions from judge McNair rested upon few rules of law of international waters.
Though there are exceptions, in case of bays, the normal procedure to calculate territorial waters
in from the land, a line which follows the coastline. Judge McNair rejected the argument upon
which Norway based its decree including:
 Protecting Norway’s economic and other social interests
 The UK should not be precluded from objecting the Norwegian system embodied in the
Decree because previous acquiescence in the system and
 An historic title allowing the state to acquire waters that would otherwise have the status
of deep sea. Judge McNair concluded that the 1935 decree is not compatible with
international law.(Johnson173)
Furthermore, Judge Read from Canada was unable to concur with parts of the judgment. Read
rejected justification by Norway for enlarging her maritime domain and seizing and condemning
foreign ships (Johnson 173);
 Sovereignty of the coastal state is not the basis for Norway to claim 4 mile belt from
straight base lines
 Customary international law does not recognize the rule according to which belts of
territorial waters of coastal states is to be measured.
 Norwegian system cannot be compatible with international law.