¹ For the Canadian reservation, see Multilateral Treaties Deposited with the Secretary-General <http://www.un.org>. For the CFPA amendments of May 12,1994, see R.S.C., ch. C–33 (1985), reprinted in 33ILM 1383 (1994), United Nations, Law of the Sea Bull., NO. 26, Oct. 1994, at 20, and Judgment, paras. 15–18, 22. It may be noted that enactment by Canada on June 26, 1970, of its Arctic Waters Pollution Prevention Act, reprinted in 9 ILM 543 (1970), and fisheries legislation, id. at 553, had been preceded on April 7, 1970, by a new reservation by Canada to its optional clause declaration, id. at 598.

² Canada is the only coastal state party, while the European Union is among 14 distant-water fishing parties to the NAFO Convention of Oct. 24, 1978, 1978 O.J. (L 378) 1 (entered into force Jan. 1, 1979).

³ By means of two Notes Verbales to Canada of March 27 and April 7, 1995, Spain reiterated its claims that Canada’s actions not only were in breach of general international law, but also endangered the efforts of the international community to secure broader fisheries cooperation. 1 Memorial of Spain, Annexes 3–4 (1995).

⁴ Quoted in Application of Spain, Annex 4 (1995), and 1 Memorial of Spain, supra note 3, Annex 9; see Judgment, para. 20.

⁵ After Spain filed its Memorial (on September 29, 1995) and Canada filed its Counter-Memorial (on February 29,1996) on the jurisdiction of the Court, Spain asked for permission to file a Reply. Canada opposed the request. In its Order of May 8, 1996, by a vote of 15-2, the Court found itself to be sufficiently informed, at this stage, of the contentions of fact and law on which the parties were relying, and therefore decided not to authorize the filing of a Reply and a Rejoinder.

⁶ 34 ILM 1260 (1995). See Judgment, para. 21.

⁷ Parallel to the proceedings before the Court and diplomatic activity pursued within the United Nations system, NAFO agreed in September 1995 to apply (as of January 1, 1996) to all NAFO members new stringent control and enforcement measures, most of which were adopted in the Canada-EC agreement, supra note 6, Annex I, as part of the settlement of the “turbot war.” See 34 ILM at 1264. The sharing of turbot quotas on the Nose and Tail of the Grand Banks was also resolved in line with that agreement. In addition, work was initiated on two proposals advocated by Canada and the European Union with respect to effective dispute settlement procedures within the NAFO system. See UN Doc. A/50/98-S/1995/252; IMO Doc. MSC 65/25, at 77, & Add.2, and Annexes 46 (Spain), 47 (Canada) (1995); Report of the 17th NAFO General Council, NAFO/GC Doc. 95/5 (1995); Report of the 18th NAFO General Council, NAFO/GC Doc. 96/9, at 13–17 (1996); Report of the 20th NAFO General Council, NAFO/GC Doc. 98/7, at 64–69 (1998). These developments were closely intertwined with the preparation and adoption, as well as the subsequent implementation and application, of the milestone Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, reprinted in 34 ILM 1542 (1995) [hereinafter Straddling Stocks Agreement]. As of November 30, 1998, the Agreement had been signed by 58 states and the European Community, and it had been ratified by 18 states (including the United States). See UN, Law of the Sea Bull., No. 38, 1998, at 20.

⁸ Judgment, para. 29.

⁹ See id., paras. 29–32 and jurisprudence cited therein.

¹⁰ Id., paras. 33–35. See also paras. 63, 87.

¹¹ Id., para. 27. The dichotomy was rooted in Spain’s contention that the present dispute could not concern the management and conservation of fish stocks, because these matters fell outside the jurisdiction of the EU member states as a result of their having transferred their competence over fisheries to the European Union. See ICJ Docs. CR 98/9, at 13, 35–39, CR 98/12, at 44–53, CR 98/13, at 11–12, 25–28, and CR 98/14 (trans. 1998).

¹² Judgment, para. 46 (quoting Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nig.), Judgment, paras. 25, 30 (June 11, 1998)).

¹³ Id., paras. 47–49 (quoting Anglo-Iranian Oil Co. case (UK v. Iran) (Jurisdiction), 1952 ICJ Rep. 93, 104, 105,107 (July 22); Certain Norwegian Loans (Fr. v. Nor.), Judgment, 1957 ICJ Rep. 9, 27 (July 6); and Aegean Sea Continental Shelf (Greece v. Turk.), Judgment, 1978 ICJ Rep. 3, 69 (Dec. 19)).

¹⁴ Id., paras. 43, 51–52.

¹⁵ Id., para. 54.

¹⁶ Id. (quoting Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 418 (Nov. 26)). It was their disagreement on this point—especially in a context where the reservation clearly contemplated the illegal acts challenged on the merits—that particularly prompted Vice-President Weeramantry and Judges Bedjaoui, Ranjeva and Vereshchetin and Judge ad hoc Torres Bernárdez (designated by Spain) to dissent.

¹⁷ Id., para. 54. See Separate Opinion of President Schwebel, para. 4, adding that: “If States by their reservations could withhold jurisdiction only where their measures or 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.” See also Separate Opinion of Judge Koroma; and Separate Opinion of Judge Kooijmans, para. 10, noting that when the law is in a state of flux, settlement of disputes by means other than judicial settlement may be more satisfactory for all states concerned, and that the Judgment, para. 56, refers in this respect to the principle of free choice of means contained in Article 33 of the United Nations Charter.

¹⁸ Judgment, paras. 55–56. See also paras. 60, 79, 85. According to the Court, the language from Right of Passage over Indian Territory (Preliminary Objections) relied on by Spain is concerned with a possible retroactive effect of a reservation and does not detract from this principle. Judgment, para. 53 (quoting Case concerning Right of Passage over Indian Territory (Port. v. India) (Preliminary Objections)., 1957 ICJ Rep. 125, 142 (Nov. 26) (“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”)).

¹⁹ In his separate opinion, President Schwebel adds that, when the reservation has been treated by the declarant state as an essential one but for 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 as being in force. If paragraph 2(d) falls or fails, so must the entire 1994 Canadian declaration. Accordingly, if the Spanish argument is accepted on the results to be attached to Canada’s interpretation of this reservation, it follows that there is no basis whatever in this case for the jurisdiction of the Court. Separate Opinion of President Schwebel, paras. 9–10.

²⁰ Judgment, para. 70, invoking the 1982 UN Law of the Sea Convention, the 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Nov. 24,1993, reprinted in 33 ILM 968 (1994), the 1995 UN Straddling Stocks Agreement, supra note 7, and other examples of treaty and legislative practice. See Separate Opinion of Judge Oda, paras. 8–15.

²¹ President Schwebel supplements this finding with the reflection in his separate opinion that if it were accepted, arguendo, that Spain is correct that Canada’s interpretation of its reservation as applicable to any vessel fishing in the NAFO Regulatory Area deprives the reservation of validity and makes it “a nullity,” it would not follow that the Court has jurisdiction over Spain’s cause of action. On the contrary, in his view it would mean that the Court is altogether without jurisdiction since the nullity or ineffectiveness of paragraph 2(d) would entail the nullity or ineffectiveness of the Canadian declaration as a whole. See Separate Opinion of President Schwebel, para. 7.

²² The conclusion that the lawfulness of the acts that the reservation seeks to exempt from ICJ jurisdiction has no relevance to the interpretation of the terms of that reservation also led the Court to hold that it had no reason to reject Canada’s objection to jurisdiction in preliminary proceedings on the grounds that the objection did not possess, in the circumstances of the case, an exclusively preliminary character.

²³ Judgment, para. 86.

²⁴ In this regard, President Schwebel observes that its proceedings and the resultant Judgment more than amply demonstrate that the Court freely considered whether it has jurisdiction, and that it concluded, for the reasons meticulously set out in the Judgment, which have nothing to do with “self-judging” reservations, that it does not. Separate Opinion of President Schwebel, para. 5.

²⁵ See Judgment, paras. 87–88 (citing cases). See also Separate Opinion of Judge Oda, paras. 17–21.

²⁶ Judgment, paras. 23–88.

²⁷ See Peter H. F. Bekker, Case note, 92 AJIL 751 (1998).

²⁸ See Shabtai Rosenne, The Law and Practice of the International Court, 1920–1996, at 727–836 (1997). For the list of 60 states that had made optional clause declarations as of August 1998, see Report of the International Court of Justice, 1 August 1997-31 July 1998, UN Doc. A/53/4, at 4 (1998) <http://www.icj-cij.org>. Two more declarations have been deposited, one by Guinea prior to its instituting a new case against Congo, see ICJ Communiqué No. 98/46 (Dec. 30,1998), and one by Yugoslavia prior to its instituting new cases against (separately) the United States and nine other NATO members, see ICJ Communiqués No. 99/17 (Apr. 29, 1999) and No. 99/18 (May 4, 1999), On the Legality of Use of Force (Provisional Measures), Orders (June 2, 1999), of which those in cases against the United States and Spain ordered tfieir removal from the ICJ General List, see ICJ Communiqués No. 99/23-–99/33 (June 2, 1999) <http://www.icj-cij.org>.

²⁹ See Bernard H. Oxman, The Rule of Law and the United Nations Convention on the Law of the Sea, in Contemporary International Law Issues: Conflicts and Convergence 309, 312–13 (1996), and in 7 Eur. J. Int’l L. 353, 357–58 (1996).