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6 The Role of the International Court of Justice in the Settlement of Natural Resource Disputes
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6 The Role of the International Court of Justice in the Settlement of Natural Resource Disputes • Maritime Delimitation and Fishery Disputes • Natural Resources in the Settlement of Territorial Disputes • Disputes over Water Management • Natural Resources and Armed Conflict • Aborted Cases on Natural Resource Disputes • Assessment Not every dispute over natural resources leads to violent conflict. A number of conflicts have been resolved by peaceful means through negotiation, mediation, or judicial processes. As a complement to the previous chapter, this chapter examines the role natural resources have played in the decisions of the International Court of Justice, the principal judicial organ of the United Nations. The main functions of the court are to adjudicate disputes between states (so-called contentious cases) and to give advisory opinions requested by other principal organs of the UN or specialized agencies. As is demonstrated in this chapter, natural resources play a distinctive role in the jurisprudence of the ICJ. Sometimes they are treated as factors that could influence the outcome of maritime delimitation, sometimes as features that have a bearing on the course of land boundaries. In other cases they implicitly determine questions of title to territory or are explicitly part of the subject matter of the dispute. Thus, one thing is certain: natural resources have often determined the outcome of the court’s decisions. Maritime Delimitation and Fishery Disputes The question of access to natural resources has figured most prominently in maritime delimitation cases or in cases where the court had to pronounce upon the legality of 190 Development without Destruction unilaterally established maritime boundaries. Access to natural resources played a role in one of the earliest cases on the docket of the court, the Fisheries case (1951), where the court was asked to determine whether the method Norway used to delimit its fishery zone was in accordance with international law at that time. The proceedings were instituted by the United Kingdom, which protested Norway’s method of delimitation because it impinged upon the interests of the British trawlers fishing in the area. In assessing the legality of Norway’s method of delimitation, the court took account of the importance of access to natural resources. In view of the court, “there is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage.”1 The court had in mind especially the fishery resources on which the Norwegian coastal population depended. In the end, the court concluded that the method Norway used to delimit its fishery zone was not contrary to international law. Access to marine resources played an even stronger role in a similar dispute that emerged two decades later, in 1972: the Fisheries Jurisdiction Cases, in which the United Kingdom and Germany asked the court to determine the legality of Iceland ’s zone of exclusive fisheries jurisdiction that extended fifty nautical miles from the shore. The United Kingdom and Germany, whose trawlers were most seriously affected by Iceland’s unilateral extension of its fishery jurisdiction, asked the court to declare that Iceland’s actions had no foundation in international law. In 1974, the court delivered its judgments on the merits, in which it observed that in order to reach an equitable solution of the dispute it was necessary that the preferential fishing rights of Iceland, as a state specially dependent on coastal fisheries, be reconciled with the traditional fishing rights of the United Kingdom and Germany.2 In the view of the court, neither right was absolute: The preferential rights of coastal states were limited by the extent of their special dependence on the fisheries and by their obligation to take account of the rights of other states and conservation principles, whereas the established rights of other fishing states were limited by the special dependence of coastal states on fisheries and their obligation to take account of the rights of other states as well as conservation principles.3 According to the court, this meant that all three states had an obligation to take full account of each other’s rights and of any fishery conservation measures, the need for which was shown to exist in those waters. The court particularly noted that: It is one of the advances in maritime international law, resulting from the intensification of fishing, that the former laissez faire treatment of the living resources of the sea in the high seas has been...