|I. || Substantive International Law - First Part|
|2. || SOURCES OF INTERNATIONAL LAW|
|2.1. || General Questions|
|2.1.5. ||Relation between the Sources of International Law|
Maritime Delimitation in the Area
between Greenland and Jan Mayen,
Judgment of 11 September 1992,
Judgment, I.C.J. Reports 1993, p. 38
[pp. 58-59] 46. The fact that it is the 1958 Convention which
applies to the continental shelf delimitation in this case does not mean that
Article 6 thereof can be interpreted and applied either without reference to
customary law on the subject, or wholly independently of the fact that a fishery
zone boundary is also in question in these waters. The Anglo-French Court of
Arbitration in 1977 placed Article 6 of the 1958 Convention in the perspective
of customary law in the much-quoted passage of its Decision, that:
"the combined 'equidistance-special circumstances rule', in effect,
gives particular expression to a general norm that, failing agreement, the
boundary between States abutting on the same continental shelf is to be
determined on equitable principles" (United Nations, Reports of
International Arbitral Awards (RIAA), Vol. XVIII, p. 45, para. 70).
If the equidistance-special circumstances rule of the 1958 Convention is, in
the light of this 1977 Decision, to be regarded as expressing a general norm
based on equitable principles, it must be difficult to find any material
difference - at any rate in regard to delimitation between opposite coasts -
between the effect of Article 6 and the effect of the customary rule which also
requires a delimitation based on equitable principles. The Court in the case
concerning the Continental Shelf (Libyan Arab Jamahirya/Malta),
where it was asked only to delimit the continental shelf boundary, expressed the
"even though the present case relates only to the delimitation of the
continental shelf and not ot that of the exclusive economic zone, the principles
and rules underlying the latter concept cannot be left out of consideration";
that "the two institutions - continental shelf and exclusive economic
zone - are linked together in modern law"; and that the result is "that
greater importance must be attributed to elements, such as distance from the
coast, which are common to both concepts" (I.C.J. Reports 1985, p.
33, para. 33).
[pp. 134-135 S.O. Shahabuddeen] The extent to which the
interpretation and application of a treaty must take account of the subsequent
evolution of the law has been much debated 1. That such account must be taken
at any rate in the case of jurisdictional and law-making treaty provisions seems
clear (Aegean Sea Continental Shelf I.C.J. Reports 1978, pp. 32-34,
paras. 77-80; and, ibid., pp. 68-69, and footnote 1 to p. 69, Judge de
Castro, dissenting). More particularly, later developments in customary
international law do need to be taken into account in applying the provisions of
the 1958 Convention (Anglo-French Arbitration, 1977, RIAA, Vol.
XVIII, p. 37, para. 48. And see Gulf of Maine, I.C.J. Reports 1984, p.
291, para. 83).
Thus, account must be taken of the fact that Article 76 of the 1982
Convention has introduced a new definition of the outer limit of the continental
shelf. There is little dispute that this replaces the different definition set
out in Article l of the 1958 Convention (Tunisia/Libya, I.C.J. Reports 1982,
pp. 114-115, paras. 52-53, Judge Jiménez de Aréchaga, separate
opinion). But exactly how this has come about is less clear. Differences between
two rules relating to the same matter may sometimes be resolved by regarding the
rules as being really complementary to each other (Electricity Company of
Sofia and Bulgaria, P.C.I.J., Series A/B, No. 77, pp. 75 ff.; and see, ibid.,
pp. 136 ff., Judge De Visscher, separate opinion). In case of irreconciable
conflict (as in this case), an integrated legal system would provide some method
of determining which rule ultimately prevails; for the same facts cannot at one
and the same time be subject to two contradictory rules. Judge Anzilotti did not
seem to entertain that possibility when he said,
"[i]t is clear that, in the same legal system, there cannot at the same
time exist two rules relating to the same facts and attaching to these facts
contradictory consequences ..." (ibid., p. 90, separate opinion.
And see, ibid., p. 105, Judge Urrutia, dissenting. Cf. I.C.J.
Pleadings, Nuclear Tests, Vol. I, p. 238, Mr. Elihu Lauterpacht, Q.C.).
How has the problem been resolved in this case? The substitution of the 1982
definition of the continental shelf for the 1958 definition could not have come
about through a treaty displacement, since the 1982 Convention is not in force.
Could it have come about through the customary international law effect of the
new definition on the old? At least in relation to the normal continental shelf
of 200 miles (which is what this opinion is concerned with), the better view
would seem to be that the new limit operates at the level of customary
international law. If the 1958 rule is regarded solely as a treaty rule, the
position is that "a later custom ... prevails over an earlier treaty ..."
(Paul Reuter, Introduction to the Law of Treaties, 1989,
pp. 107-108, para. 216). But, of course, the same rule may exist
autonomously under customary international law as well as under conventional
international law 2. The limit prescribed by Article l of the 1958 Convention
was regarded as being also expressive of customary international law (Tunisia/Libya,
I.C.J. Reports 1982, p. 74, para. 101, referring to the North Sea cases).
Considered on this basis, it would clearly be superseded by the different limit
prescribed by later customary international law as expressed in Article 76 of
the 1982 Convention.
Thus, whether the limit prescribed by Article 1 of the 1958 Convention is
treated solely as a treaty rule or also as a rule of customary international
law, it falls to be regarded as having been modified by Article 76 of the 1982
Convention applying as customary international law. Both Parties in fact
proceeded on the basis that the applicable limit is 200 miles in accordance with
contemporary customary international law.
But I do not consider that there has been any modification of the
delimitation provisions of the 1958 Convention. In the North Sea cases,
the Court said, "Articles l and 2 of the Geneva Convention do not appear to
have any direct connection with inter-State delimitation as such" (I.C.J.
Reports 1969, p. 40, para. 67). The delimitation procedures of Article 6
were not dependent on the particular outer limits fixed for the continental
shelf. Subsequent changes in those limits should not affect the continued
applicability of the procedures. No doubt, as remarked above, any application of
the delimitation principles of the 1958 Convention would have to take account of
the evolution of the law relating to the subject-matter to which the application
is directed; but I cannot see that this calls for any modification of the
delimitation principles themselves.
|1||Footnote omitted. |
|2||Footnote omitted. |