| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.9. | Specific Treaties |
| 7.9.8. | Convention on the Continental Shelf of 1958 |
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Maritime Delimitation in the Area
between Greenland and Jan Mayen,
Judgment, I.C.J. Reports 1993, p. 38
[pp. 48-52] 23. Denmark and Norway concluded an Agreement on 8
December 1965 concerning the delimitation of the continental shelf. The
authentic text of that Agreement was in the Danish and Norwegian languages: the
Court was supplied with an English translation of the Agreement, which has not
been questioned. The Parties however disagree as to the meaning and the effect
of this Agreement. The Preamble and Article 1 of the Agreement read as follows:
"The Government of the Kingdom of Denmark and the Government of the
Kingdom of Norway, having decided to establish the common boundary between the
parts of the continental shelf over which Denmark and Norway respectively
exercise sovereign rights for the purposes of the exploration and exploitation
of natural resources, have agreed as follows:
Article 1
The boundary between those parts of the continental shelf over which Norway
and Denmark respectively exercise sovereign rights shall be the median line
which at every point is equidistant from the nearest points of the baselines
from which the breadth of the territorial sea of each Contracting Party is
measured."
Article 2 provides that "In order that the principle set forth in
Article 1 may be properly applied, the boundary shall consist of straight lines"
which are then defined by eight points, enumerated with the relevant geodetic
co-ordinates and as indicated on the chart thereto annexed; the lines so defined
lie in the Skagerrak and part of the North Sea, between the mainland territories
of Denmark and Norway.
24. It is clear that the Agreement contains no provision for the definition
of the position of a median line specifically between Greenland and Jan Mayen.
Norway's contention is however that the Agreement is a general one between the
two countries to treat the median line as the line of delimitation of all
continental shelf boundaries between them and that the Agreement is accordingly
unrestricted in its area of operation. Denmark on the other hand, contends that
it is not an Agreement of such a general application, but one relating
exclusively to the Skagerrak and part of the North Sea. It submits that this
limitation is evident from the terms of Article 2 of the Agreement, which
provides that "the boundary shall consist of straight lines" passing
through eight points in the Skagerrak and part of the North Sea.
25. Norway accordingly contends that the text of Article 1 is general in
scope, unqualified and without reservation, and that the natural meaning of that
text must be "to establish definitively the basis for all boundaries which
would eventually fall to be demarcated" between the Parties. In its view
Article 2, which admittedly relates only to the continental shelves of the two
mainlands, "is concerned with demarcation". Norway deduces
that the Parties are and remain committed to the median line principle of the
1965 Agreement, and that as and when the need for a more precise definition of a
continental shelf boundary between them in another area might arise, they are
bound to "demarcate" or delineate any such boundary on that basis.
Moreover since no reference is to be found in the 1965 Agreement to special
circumstances, such as might affect the "demarcation" of their
continental shelf boundaries, Norway submits that it is to be concluded that
both Parties at that time found that there were no "special circumstances".
Denmark on the other hand argues that the object and purpose of the Agreement is
solely the delimitation in the Skagerrak and part of the North Sea on a median
line basis.
26. The Court has to pronounce upon the interpretation to be given to the
1965 Agreement. The Preamble to the Agreement states that the two Governments
have decided to establish "the common boundary" between the parts of
the continental shelf over which Denmark and Norway respectively exercise
sovereign rights for the purposes of exploration and exploitation of natural
resources. Similarly, Article 1 also refers to "the boundary between those
parts of the continental shelf ...". Consistently, the Agreement also
provides in Article 2 that "the boundary shall consist of straight lines"
passing through eight points in the North Sea. The words "the boundary"
in all these three parts of the Agreement, expressed in the singular, must refer
to the one boundary defined in Article 2. If the intention had been otherwise,
Article 2 would have been so worded as to make it clear that it is providing for
only a part of the total boundary contemplated by the Preamble and Article 1.
Considered in the light of Article 2 of the Agreement, the principle laid down
in Article 1 is valid only as regards the area mentioned in Article 2.
27. The 1965 Agreement has in any event to be read in its context, in the
light of its object and purpose. The Geneva Convention on the Continental Shelf,
adopted in 1958, defined the term. "continental shelf", in Article 1,
as referring:
"(a) to the seabed and subsoil of the submarine areas adjacent
to the coast but outside the area of the territorial sea, to a depth of 200
metres or, beyond that limit, to where the depth of the superjacent waters
admits of the exploitation of the natural resources of the said areas; (b)
to the seabed and subsoil of similar submarine areas adjacent to the coasts
of islands".
By 1965 both Parties had incorporated that definition of the continental
shelf given in the Convention into their domestic legislation (Danish Decree of
7 June 1963, Art. 2 (1); Norwegian Decree of 31 May 1963 and Law of 21 June
1963, Art. 1). Denmark has therefore argued that in 1965 the two Parties could
not have had the area between Greenland and Jan Mayen in mind as the subject of
a potential future delimitation: both Parties were asserting shelf rights under
the definition of the shelf in the 1958 Convention (200 metres depth or the
limit of exploitability). The Court considers that the object and purpose of the
1965 Agreement was to provide simply for the question of the delimitation in the
Skagerrak and part of the North Sea, where the whole sea-bed (with the exception
of the "Norwegian Trough") consists of continental shelf at a depth of
less than 200 metres, and that there is nothing to suggest that the Parties had
in mind the possibility that a shelf boundary between Greenland and Jan Mayen
might one day be required, or intended that their Agreement should apply to such
a boundary.
28. It is also appropriate to take into account, for purposes of
interpretation of the 1965 Agreement, the subsequent practice of the Parties.
The Court first notes the terms of a Press Release issued by the Ministry of
Foreign Affairs of Norway on 8 December 1965, which refers to the Agreement of
that date as "the second Agreement entered into by Norway concerning
the delimitation of the continental shelf in the North Sea" (emphasis
added) (the first having been an agreement of 10 March 1965 with the United
Kingdom). More significant is a subsequent treaty in the same field. On 15 June
1979, Denmark and Norway concluded an Agreement "concerning the
Delimitation of the Continental Shelf in the Area between the Faroe Islands and
Norway and concerning the Boundary between the Fishery Zone around the Faroe
Islands and the Norwegian Economic Zone". According to that Agreement the
continental shelf boundary between the Faroe Islands and Norway was to be "the
median line" (Art. l), and the "boundary between the fishery zone near
the Faroe Islands and the Norwegian economic zone" (Art. 4) was to follow
the boundary line which had been defined in Article 2 "in the application
of the median line principle referred to in Article l". No reference
whatever was made in the 1979 Agreement to the existence or contents of the 1965
Agreement. The Court considers that if the intention of the 1965 Agreement had
been to commit the Parties to the median line in all ensuing shelf
delimitations, it would have been referred to in the 1979 Agreement.
29. This absence of relationship between the 1965 Agreement and the 1979
Agreement is confirmed by the terms of the official communication of the latter
text to Parliament by the Norwegian Government. Proposition No. 63 (1979-1980)
to the Storting states that:
"On 8 December 1965 Norway and Denmark signed an agreement concerning
the delimitation of the continental shelf between the two States.
The agreement did not cover the delimitation of the continental shelf
boundary in the area between Norway and the Faroe Islands."
Since, as noted above, the 1965 Agreement did not contain any specific
exclusion of the Faroe Islands area, or of any other area, this statement is
consistent with an interpretation of the 1965 Agreement as applying only to the
region for which it specified a boundary line defined by coordinates and a
chart, i.e., the Skagerrak and part of the North Sea.
30. The Court is thus of the view that the 1965 Agreement should be
interpreted as adopting the median line only for the delimitation of the
continental shelf between Denmark and Norway in the Skagerrak and part of the
North Sea. It did not result in a median line delimitation of the continental
shelf between Greenland and Jan Mayen.
[p. 52] 31. The Court therefore turns to the Norwegian argument
based on the 1958 Geneva Convention on the Continental Shelf (hereafter referred
to as "the 1958 Convention"). Both Denmark and Norway are parties to
that Convention, and recognize that they remain bound by it; but they disagree
as to its interpretation and application. The 1958 Convention, which came into
force on 10 June 1964, was signed by Denmark on 29 April 1958. Subsequently,
Denmark ratified the 1958 Convention on 12 June 1963 and later Norway acceded to
it on 9 September 1971. The issue centres on the purport of Article 6, paragraph
1, of the 1958 Convention, which reads:
"Where the same continental shelf is adjacent to the territories of two
or more States whose coasts are opposite each other, the boundary of the
continental shelf appertaining to such States shall be determined by agreement
between them. In the absence of agreement, and unless another boundary line is
justified by special circumstances, the boundary is the median line, every point
of which is equidistant from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured.''
Norway contends that a delimitation of the continental shelf boundary -
specifically, a median line boundary - is already "in place" as a
result of the effect of this Article of the 1958 Convention. It considers that
the effect of the 1965 Agreement, which provides for such a boundary and omits
any mention of "special circumstances", is declaratory of the
interpretation by the Parties of the 1958 Convention, in its application to
their geographical situations, i.e., that no special circumstances were present,
or alternatively that the Parties have "renounced the proviso of Article 6"
relating to special circumstances. It will however be apparent that this
Norwegian argument rests on the contention, already rejected by the Court, that
the 1965 Agreement was intended to apply generally, to delimitation other than
that specifically provided for, in the Skagerrak and part of the North Sea.
32. Thus, in the view of the Court, the 1965 delimitation Agreement does not
constitute an agreement that there were no special circumstances, and therefore
does not have the result that, pursuant to Article 6, paragraph 1, of the 1958
Convention, the median line would be the boundary.
