MEMORIAL ON THE MERITS SUBMITTED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY MEMORIAL ON THE MERITS 141 INTRODUCTION 1. This Meiiiorial on the nierits of the dispiite is siibiiiitted Io the Court in pursuance of the Order made by the Court on 15 February 1973, in the Fisheries Jurisdiction case (Federul Repi,blic of Cermui~yv. IceIaird). 2. The subject-niatter of the dispute as defined in the Application of 5 June 1972 institutine oroceedines on behalf of the Federal Reoiiblic of Gerinanv against the ~epiblicof lciland, is the legality or otherwise of the extension br lceland of its exclusive fisheriesjurisdiction to 50 nautical miles froni the piesent baselines. This extension had been put into elfect on I September 1972 by the Lcelandic Rcgiilations No. 18911972 issued by the lcelandic Minister for Fisheries on 14 July 1972. The Reg~ilationsNo. 18911972 together with an English translation notified bv the Governnient of lceland have heen reprodiiced in Annex A to this ~emorial. In the Application of 5 June 1972 the Governnient of the Fedcral Repiiblic of Germany has asked the Court to adjiidge and declare: (u) that the unilateral extension by lcelnnd of ifs zone of exclusive fisheries jurisdiction to 50 nautical iiiiles froni the present basclines, Io be effective from I September 1972, which has been decided iipon by the Parlianient (Althing) and the Government of Iceland and coniiiiunicated by the Minister for Foreign AlTairs of lceland to the Federal Republic of Germany by aide-niémoire handed to its Ambassador in Reykjavik on 24 February 1972, would have no basis in international law and could therefore not be opposed to the Federdl Repiiblic of Germany and to its fishine- vessels:.-. -. , (b) that if lcelaRd, as a coastal State specially dependent on coastal fisheries, establishes a need for s~ecialfisheries conservation measures in the waters adjacent to its cbast but beyond the excliisive fisheries zone provided for by the Exchange of Notes of 1961, such conservation measures, as Far as they would affect fisheries of the Federal Republic of Germanv iiiav. not~~~~ he taken. under international law. on the basis of a unilaterai extension by lceland of ils fisheries jurisdiction, but only on the basis of an agreement between the Federal Republic of Germany and Iceland concluded either bilaterally or within a multilateral frame- work. In the Judgment delivered by the Court on 2 February 1973 the Court found that it has jurisdiction to enterlain the Application filed by the Governnient ~~~ ~ of the Federal Reuublic~ ~ of Ciermanv on 5 . -- -~ ~,~~~ ~ Jiine~ ~ 1972~~ - and to deal with the merits of the dispute. 3. By Order made on 15 February 1973 the Court fixed 1 August 1973 as ~ ~~~ the lime-limit for the filineu of~~ the~~ Memorial of the Government of the Federal Republic of Germany on the merits. Accordingly and in cornpliance with Article 42 of the Rules of Court this Menlorial places before the Court a stdtement of the facts relevant Io the merits of the dispute. a statement of the law to be considered in relation thereto, and the submissions of the Govern- ment of the Federal Republic of Germany arising out of those facts and those principles of law. This Memorial is divided into the following parts: 142 FlSHERlES JURlSDlCTlON Part 1 contains the history of the dispute up to the date of the Application and also an account of subsequent events which is intended to bring the story as near as possible up to the date on which this Memorial will be filed. Part II deals with the aspect of conservation and presents the facts concerning the need for conservation of the fishery resources in the area in dispute and records and evaluates the measures taken in this respect. Part 111 deals with the utilization made by hoth parties of the fishery re- sources in the area in dispute and their dependence thereon. Parr IV contains a statement of the history and development of the rules of law relevant to.the dispute and a stütement of what in the view of the Government of the Federal Republic of Germany represents the law governing the dispute. Part V deals with the responsibility of the Republic of Iceland for the damage which has already been inflicted by Icelandic coastal patrol boats on the ships of the Federal Republic, their personnel and their equipment or which may in future be inflicted on them. Part VI sets out the formal submissions to the Court. MEMORIAL ON THE MERlTS PART 1 HISTORY OF TH13 DISPUTE 4. In order to put the interests which are at stake in this dispute, into the right perspective, il iiiz~ybc helpful to star! ivilh the history of German and lcelandic fishing in the waters around Iceland. A. Traditional German Fishing ln the Waters Around Iceland 5. The rich fishing groiinds in the area of the high sea around lceland the richness of which is due to the Gulf Stream, the shallowness of the waters above Iceland's continental shelf and othcr no1 yet fully known hydrological and biological factors, has attracted fishernien since the Middle Ages. blainlv British and Dutch fishcrnien. but also Norweaian.-, Danish and Ger- man fisheriiien sailed for fishing inthesc waters. Permanent support and trading stations were foonded by the nationals of these nations in Iceland; the ~anseatictowns Brcmen. ~iinbur~.and Lübeck also entertained such pcrnianent stations in lccltind at tha<tinie. Fishing by lcelandcrs was under- taken only on a very sniall scale and was mainly confined to fishing by sinall boats forhonic consoiiiotion. lcelandic fisheries rcmained insienifirant in the following time, especialiy since the Danish Crown to which 1ceï:ind belonged, esiablished a nionopoly for the trade with foreipn nations in 1612 and closed the foreien tradinc stations. It was not beforc-1787 when the foreisn trade rnonopoiy \vas abolished, that fishing by lcelanders was undertaken on a larger scale, but never rcachcd the proportions of other nations' fishingefiorts in these waters 6. Fishing vessels of the North Sea States have been continuously fishing in the waters of the high sea around lceland during the following ccntiiries: lcelanders were content with sinall-boat fishing in the vicinity of the Coast. This siliiation prevailcd iintil the end of the 19th century although steamboat and trawling had nlrcady changed the fishing techniques and allowed niore efficient and long-distance fishing. It was no1 before 1900 that the first Icc- landic traiuler went into service; the number of lcelandic trawlers rcniained small until the First World War (1911: 10; 1914: 20 trawlers). Geriiian tra\i.lcrs started fishing in the lcelandic Area alrcady at the end of the last centory. Since thcn, parallel to the general dcvelopiiient of modern fisheries. ciitches by German trawlers in the lceland Area gradiially increased and transgressed alrcady thc 100,000 tons level iii 1936. Since that time catches by Gcrnian trawlers in the Icelaiidic Area rcinained rclatively stable at a lcvel between 100,000 and 120,000 tons, with the exception of the years 1952, 1953 and 1954, when catches from the lceland Area went up to 200,000 tons in the averare. Table No. 1 (sce. o.. 144) lists the catches bv German trawlers fr<ini 1893-1571Ttic figiirciof thi, i:thlc ihon tliiii Ccrrna"'li~tiing\~circl~hx\c beeri coiisi:inil!. fijhinp in ihc iiaicr,;iroiinJ Icïl~nJsincc ilie hc~inningofihe 20ili ccniiirv. 1)iiriiic ihe u;ir xirs 191 5-1918 and 19.10-1945 Cerm:in tr;i!rlcis coiild not fish in these waters: the low catches beiween 1946and 1949 aredue to the fact that il took soiiie time for the Gerinan fishing industry to rccover from the heavy losscs during the war. The relative stability of the total TABLE NO. I. CATCHES BY GERMAN TRAWLEHS OF ALL SPECIES (FOR HUMAN CONSUMPTION) IN THE FISHINC CROUNDS AROUND ICELAND (in merric Iofis) 1 quantity caught per annuin by German fishing vessels in the lcelandic Area is evidence of the fact that the quantity of fresh Fish taken from these fishing grounds is needed to supplcinent the fresh fish landings froni other fishing- grounds which can be reached by fresh-fish 1r;iwlers or snialler boats (pri- marily from the North Sea), in order to satisfy the deriiand for fresh fish in the German market. On the averase about neÿrly two-thirds of the demand in fresh fish and aboi11 one-third of the total deniand in fish for huliian consumption (fresh and frozen fish) is met by I~indingsfrom the lceland Area. 7. The followinç nations participate in the fishing in the "lcelandic Area", i.e., the statistical ;ires Va as defined by the International Council for the Exploration of the Sea ([CES): in the first place lccland which had gradually -- 1 From 1893 to 1967 the catch figures represeni the "landed weight of iced fish because the fish was gencrally transparted in ice; al1 oihcr landings siich as salted fish or froren fish wcre converted IO "landed weight of iced fish. Since 1968 the figures represent the "round frcsh weight" which is the weight of thc whole fish al the very moment when ii is caitght. The "round fresh weight" is of coiirsc higher than the "landed iveighr of iced lish" for rnostly thc iced fish is giiried and has lori on the average 5 percent. alifs wcight due Io pressiire in icc during the transport. MEMORIAL ON THE MERITS 145 increased ifs share in the total catch of al1 species (shellfish no1 included) by al1 countries in the "lceland Area" (1960: 55%; 1971: 61 %), and in the second place, listed in the order of the percentage of their respective shares: United Kingdoni (1971: 21 %), Federal Republic of Germany (1971: 13x1, Faroe Islands (1971: 1.5%), Belgium (1971: 1.4%).