| II. | Substantive International Law - Second Part |
| 2. | LAW OF THE SEA |
| 2.2. | Determination of Maritime Boundaries |
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Maritime Delimitation in the Area
between Greenland and Jan Mayen,
Judgment, I.C.J. Reports 1993, p. 38
[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.
[p. 56] 40. To sum up, the Agreement entered into between the
Parties on 8 December 1965 cannot be interpreted to mean, as contended by
Norway, that the Parties have already defined the continental shelf boundary as
the median line between Greenland and Jan Mayen. Nor can the Court attribute
such an effect to the provision of Article 6, paragraph 1, of the 1958
Convention, so as to conclude that by virtue of that Convention the median line
is already the continental shelf boundary between Greenland and Jan Mayen. Nor
can such a result be deduced from the conduct of the Parties concerning the
continental shelf boundary and the fishery zone. In consequence, the Court does
not consider that a median line boundary is already" "in place",
either as the continental shelf boundary, or as that of the fishery zone.
[pp. 56-58] 41. ... The Parties also differ on the question whether
what is required is one delimitation line or two lines, Denmark asking for "a
single line of delimitation of the fishery zone and continental shelf area",
and Norway contending that the median line constitutes the boundary for
delimitation of the continental shelf, and constitutes also the boundary for the
delimitation of the fishery zone, i.e., that the two lines would coincide, but
the two boundaries would remain conceptually distinct. In the pleadings of the
Parties, and especially in the oral argument of Norway, some importance has been
attached to this difference between the ways in which the Parties have submitted
their dispute to the Court; particularly the absence of any agreement of the
Parties, of the kind to be found in the Special Agreement in the case concerning
Delimitation of the Maritime Boundary in the Gulf of Maine Area, to ask
the Court what was "the course of the single maritime boundary that divides
the continental shelf and fishery zones of Canada and the United States of
America" (I.C.J. Reports 1984, p. 253).
42. At first sight it might be thought that asking for the drawing of a
single line and asking for the drawing of two coincident lines amounts in
practical terms to the same thing. There is, however, in Norway's view, this
important difference, that the two lines, even if coincident in location, stem
from different strands of the applicable law, the location of the one being
derived from the 1958 Convention, and the location of the other being derived
from customary law.
43. There is no agreement between the Parties for a single maritime
boundary; the situation is thus quite different from that in the Gulf of
Maine case. The Chamber of the Court was requested by the Special Agreement
in that case to effect a single-line, dual-purpose delimitation; it indicated
that in its view, on the basis of such an agreement, a delimitation valid for
both continental shelf and the superjacent water column
"can only be carried out by the application of a criterion, or
combination of criteria, which does not give preferential treatment to one of
these two objects to the detriment of the other, and at the same time is such as
to be equally suitable to the division of either of them" (ibid., p.
327, para. 194).
The Chamber decided that Article 6 of the 1958 Convention could not, because
of the Parties' agreement to ask for a single maritime boundary, be applied for
the determination of such a boundary. It observed that in such a case Article 6
has no "mandatory force even between States which are parties to the
Convention" (ibid., p. 303, para. 124). The Court in the present
case is not empowered - or constrained - by any such agreement for a single
dual-purpose boundary.
44. Furthermore, the Court has already found, contrary to the contention of
Norway, that there is not a continental shelf boundary already "in place".
The Court accordingly does not have to express any view on the legal situation
which would have arisen if the continental shelf had been delimited, but the
fishery zones had not. It is sufficient for it to note, as do the Parties, that
the 1958 Convention is binding upon them, that it governs the continental shelf
delimitation to be effected, and that it is certainly a source of applicable
law, different from that governing the delimitation of fishery zones. The Court
will therefore examine separately the two strands of the applicable law: the
effect of Article 6 of the 1958 Convention applicable to the delimitation of the
continental shelf boundary, and then the effect of the customary law which
governs the fishery zone.
[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 Jamahiriya/Malta), where
it was asked only to delimit the continental shelf boundary, expressed the view
that
"even though the present case relates only to the delimitation of the
continental shelf and not to 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).
47. Regarding the law applicable to the delimitation of the fishery zone,
there appears to be no decision of an international tribunal that has been
concerned only with a fishery zone; but there are cases involving a single
dual-purpose boundary asked for by the parties in a special agreement, for
example the Gulf of Maine case, already referred to, which involved
delimitation of "the continental shelf and fishery zones" of the
parties. The question was raised during the hearings of the relationship of such
zones to the concept of the exclusive economic zone as proclaimed by many States
and defined in Article 55 of the 1982 United Nations Convention on the Law of
the Sea. Whatever that relationship may be, the Court takes note that the
Parties adopt in this respect the same position, in that they see no objection,
for the settlement of the present dispute, to the boundary of the fishery zones
being determined by the law governing the boundary of the exclusive economic
zone which is customary law; however the Parties disagree as to the
interpretation of the norms of such customary law.
48. Denmark and Norway are both signatories of the 1982 United Nations
Convention on the Law of the Sea, though neither has ratified it, and it is not
in force. There can be no question therefore of the application, as relevant
treaty provisions, of that Convention. The Court however notes that Article 74,
paragraph 1, and Article 83, paragraph 1, of that Convention provide for the
delimitation of the continental shelf and the exclusive economic zone between
States with opposite or adjacent coasts to be effected
"by agreement on the basis of international law, as referred to in
Article 38 of the Statute of the International Court of Justice, in order to
achieve an equitable solution".
That statement of an "equitable solution" as the aim of any
delimitation process reflects the requirements of customary law as regards the
delimitation both of continental shelf and of exclusive economic zones.
[pp. 59-61] 49. Turning first to the delimitation of the continental
shelf, since it is governed by Article 6 of the 1958 Convention, and the
delimitation is between coasts that are opposite, it is appropriate to begin by
taking provisionally the median line between the territorial sea baselines, and
then enquiring whether "special circumstances" require "another
boundary line". Such a procedure is consistent with the words in Article 6,
"In the absence of agreement, and unless another boundary line is justified
by special circumstances, the boundary is the median line."
50. Judicial decisions on the basis of the customary law governing
continental shelf delimitation between opposite coasts have likewise regarded
the median line as a provisional line that may then be adjusted or shifted in
order to ensure an equitable result. The Court, in the Judgment in the case
concerning the Continental Shelf (Libyan Arab Jamahiriya/ Malta) already
referred to (paragraph 46 above), in which it took particular account of the
Judgment in the North Sea Continental Shelf cases, said:
"The Court has itself noted that the equitable nature of the
equidistance method is particularly pronounced in cases where delimitation has
to be effected between States with opposite coasts." (I.C.J. Reports
1985, p. 47, para. 62.)
It then went on to cite the passage in the Judgment in the North Sea
Continental Shelf cases where the Court stated that the continental shelf
off, and dividing, opposite States "can ... only be delimited by means of a
median line" (I.C.J. Reports 1969, p. 36, para. 57; see also p. 37,
para. 58). The Judgment in the Libya/Malta case then continues:
"But it is in fact a delimitation exclusively between opposite coasts
that the Court is, for the first time, asked to deal with. It is clear that, in
these circumstances, the tracing of a median line between those coasts, by way
of a provisional step in a process to be continued by other operations, is the
most judicious manner of proceeding with a view to the eventual achievement of
an equitable result." (I.C.J. Reports 1985, p. 47, para. 62.)
51. Denmark has, it is true, disputed the appropriateness of drawing an
equidistance line even provisionally as a first step in the delimitation
process; and to this end it has recalled previous decisions of the Court: the
case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)
(I.C.J. Reports 1982, p. 79, para. 110); the case concerning Delimitation
of the Maritime Boundary in the Gulf of Maine Area (I.C.J. Reports 1984, p.
297, para. 107); and indeed the case concerning the Continental Shelf
(Libyan Arab Jamahiriya/Malta) (I.C.J. Reports 1985, p. 37, para. 43). These
cases were, as already observed (paragraph 45 above), not governed by Article 6
of the 1958 Convention, which specifically provides that the median line be
employed "unless another boundary line is justified by special
circumstances". The 1977 Anglo-French Court of Arbitration, on the other
hand, when applying Article 6 of the 1958 Convention to the delimitation between
opposite coasts in the Atlantic region, after observing that "the
obligation to apply the equidistance principle is always one qualified by the
condition 'unless another boundary line is justified by special circumstances'"
(RIAA, Vol. XVIII, p. 45, para. 70), began by employing the equidistance
method, and then adjusting the result in the light of special circumstances,
namely the existence of the Scilly Isles (ibid., pp. 115-116, para.
248). In this respect it observed that
"it seems to the Court to be in accord not only with the legal rules
governing the continental shelf but also with State practice to seek the
solution in a method modifying or varying the equidistance method rather than to
have recourse to a wholly different criterion of delimitation" (ibid.,
p. 116, para. 249).
In any event, all that need be said of the decisions cited by Denmark is
that the Court considered that the provisional drawing of an equidistance line
was not a necessary or obligatory step in every case; yet in two of the cases
mentioned (Gulf of Maine and the Libya/Malta case), where the
delimitation was between opposite coasts, it was found entirely appropriate to
begin with such a provisional line. Thus, in respect of the continental shelf
boundary in the present case, even if it were appropriate to apply, not Article
6 of the 1958 Convention, but customary law concerning the continental shelf as
developed in the decided cases, it is in accord with precedents to begin with
the median line as a provisional line and then to ask whether "special
circumstances" require any adjustment or shifting of that line.
[pp. 61-62] 52. Turning now to the delimitation of the fishery
zones, the Court must consider, on the basis of the sources listed in Article 38
of the Statute of the Court, the law applicable to the fishery zone, in the
light also of what has been said above (paragraph 47) as to the exclusive
economic zone. Of the international decisions concerned with dual-purpose
boundaries, that in the Gulf of Maine case - in which the Chamber
rejected the application of the 1958 Convention, and relied upon the customary
law - is here material. After noting that a particular segment of the
delimitation was one between opposite coasts, the Chamber went on to question
the adoption of the median line "as final without more ado", and drew
attention to the "difference in length between the respective coastlines of
the two neighbouring States which border on the delimitation area" and on
that basis affirmed "the necessity of applying to the median line as
initially drawn a correction which, though limited, will pay due heed to the
actual situation" (I.C.J. Reports 1984, pp. 334-335, paras. 217,
218).
53. This process clearly approximates to that followed by the Court in
respect of the Libya/Malta case in determining the continental shelf
boundary between opposite coasts. It follows that it is also an appropriate
starting-point in the present case; not least because the Chamber in the Gulf
of Maine case, when dealing with the part of the boundary between opposite
coasts, drew attention to the similarity of the effect of Article 6 of the 1958
Convention in that situation, even though the Chamber had already held that the
1958 Convention was not legally binding on the Parties. It thus appears that,
both for the continental shelf and for the fishery zones in this case, it is
proper to begin the process of delimitation by a median line provisionally
drawn.
[pp. 62-64] 56. Although it is a matter of categories which are
different in origin and in name, there is inevitably a tendency towards
assimilation between the special circumstances of Article 6 of the 1958
Convention and the relevant circumstances under customary law, and this if only
because they both are intended to enable the achievement of an equitable result.
This must be especially true in the case of opposite coasts where, as has been
seen, the tendency of customary law, like the terms of Article 6, has been to
postulate the median line as leading prima facie to an equitable result. It
cannot be surprising if an equidistance-special circumstances rule produces much
the same result as an equitable principles-relevant circumstances rule in the
case of opposite coasts, whether in the case of a delimitation of continental
shelf, of fishery zone, or of an all-purpose single boundary. There is a further
finding of the Anglo-French Court of Arbitration to this effect when, after
referring to the rule in Article 6, and to the rule of customary law based upon
equitable principles and "relevant" circumstances, it said that the
double basis on which the parties had put their case,
"confirms the Court's conclusion that the different ways in which the
requirements of 'equitable principles' or the effects of 'special circumstances'
are put reflect differences of approach and terminology rather than of substance"
(RIAA, Vol. XVIII, p. 75, para. 148).
57. There has been much argument in the present case, both under the heading
of "special circumstances" and that of "relevant circumstances",
as to what circumstances are juridically relevant to the delimitation process.
It may be useful to recall the much-cited statement from the Court's Judgment in
the North Sea Continental Shelf cases:
"In fact, there is no legal limit to the considerations which States
may take account of for the purpose of making sure that they apply equitable
procedures, and more often than not it is the balancing-up of all such
considerations that will produce this result rather than reliance on one to the
exclusion of all others. The problem of the relative weight to be accorded to
different considerations naturally varies with the circumstances of the case."
(I.C.J. Reports 1969, p. 50, para. 93.)
It is to be noted that the Court in 1969 was addressing the task of States
in negotiation; indeed the entire 1969 Judgment was necessarily thus as a result
of the terms of the special agreement by which the cases were taken to the
Court. In the Libya/Malta case the Court added the following caveat:
"Yet although there may be no legal limit to the considerations which
States may take account of, this can hardly be true for a court applying
equitable procedures. For a court, although there is assuredly no closed list of
considerations, it is evident that only those that are pertinent to the
institution of the continental shelf as it has developed within the law, and to
the application of equitable principles to its delimitation, will qualify for
inclusion. Otherwise, the legal concept of continental shelf could itself be
fundamentally changed by the introduction of considerations strange to its
nature." (I.C.J. Reports 1985, p. 40, para. 48.)
58. A court called upon to give a judgment declaratory of the delimitation
of a maritime boundary, and a fortiori a court called upon to effect a
delimitation, will therefore have to determine "the relative weight to be
accorded to different considerations" in each case; to this end, it will
consult not only "the circumstances of the case" but also previous
decided cases and the practice of States. In this respect the Court recalls the
need, referred to in the Libya/Malta case, for "consistency and a
degree of predictability" (I.C.J. Reports 1985, p. 39, para. 45).
[pp. 66-70] 64. Prima facie, a median line delimitation between
opposite coasts results in general in an equitable solution, particularly if the
coasts in question are nearly parallel. When, as in the present case,
delimitation is required between opposite coasts which are insufficiently far
apart for both to enjoy the full 200-mile extension of continental shelf and
other rights over maritime spaces recognized by international law, the median
line will be equidistant also from the two 200-mile limits, and may prima facie
be regarded as effecting an equitable division of the overlapping area. However,
as the Court observed, in relation to the continental shelf, in 1969, judicial
treatment of maritime delimitation does not involve the sharing-out of something
held in undivided shares:
"Delimitation is a process which involves establishing the boundaries
of an area already, in principle, appertaining to the coastal State and not the
determination de novo of such an area. Delimitation in an equitable
manner is one thing, but not the same thing as awarding a just and equitable
share of a previously undelimited area, even though in a number of cases the
results may be comparable, or even identical." (North Sea Continental
Shelf, I.C.J. Reports 1969, p. 22, para. 18.)
Thus the law does not require a delimitation based upon an endeavour to
share out an area of overlap on the basis of comparative figures for the length
of the coastal fronts and the areas generated by them. The task of a tribunal is
to define the boundary line between the areas under the maritime jurisdiction of
two States; the sharing-out of the area is therefore the consequence of the
delimitation, not vice versa.
65. It is of course this prima facie equitable character which constitutes
the reason why the equidistance method, endorsed by Article 6 of the 1958
Convention, has played an important part in the practice of States. The
application of that method to delimitations between opposite coasts produces, in
most geographical circumstances, an equitable result. There are however
situations - and the present case is one such - in which the relationship
between the length of the relevant coasts and the maritime areas generated by
them by application of the equidistance method, is so disproportionate that it
has been found necessary to take this circumstance into account in order to
ensure an equitable solution. The frequent references in the case-law to the
idea of proportionality - or disproportion - confirm the importance of the
proposition that an equitable delimitation must, in such circumstances, take
into account the disparity between the respective coastal lengths of the
relevant area.
66. One of the factors which the Court in the North Sea Continental
Shelf cases indicated as to be taken into consideration in order to achieve
an equitable solution was referred to by the Court as:
"the element of a reasonable degree of proportionality, which a
delimitation carried out in accordance with equitable principles ought to bring
about between the extent of the continental shelf areas appertaining to the
coastal State and the length of its coast measured in the general direction of
the coastline" (I.C.J. Reports 1969, p. 54, para. 101(D) (3)).
The Anglo-French Court of Arbitration in 1977, which was applying the 1958
Convention, recalled, in reference to "an alleged principle of
proportionality by reference to length of coastlines" (RIAA, Vol.
XVIII, p. 115, para. 246), that "it is ... a factor to be taken into
account in appreciating the effects of geographical features on the equitable or
inequitable character of a delimitation ..." (ibid., p. 57, para.
99) and that "it is disproportion rather than any general principle of
proportionality which is the relevant criterion or factor" (ibid., p.
58, para. 101). The relevance of this factor was reaffirmed by the Court in
other cases involving continental shelf delimitation: Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Judgment (I.C.J. Reports 1982, pp. 43-44,
para. 37); Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment
(I.C.J. Reports 1985, pp. 43-44, para. 55); and by the Chamber in the Gulf
of Maine case in the context of a single maritime boundary for the
continental shelf and the fishery zones. In that case the Chamber observed:
"a maritime delimitation can ... not be established by a direct
division of the area in dispute proportional to the respective lengths of the
coasts belonging to the parties in the relevant area, but it is equally certain
that a substantial disproportion to the lengths of those coasts that resulted
from a delimitation effected on a different basis would constitute a
circumstance calling for an appropriate correction" (Delimitation of
the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984,
p. 323, para. 185).
67. The practical implementation of the principle may sometimes be
complicated, as in the Libya/Malta case, by the presence of claims of
third States, or by difficulties in defining with sufficient precision which
coasts and which areas are to be treated as relevant. Such problems do not arise
in the present case. The possible claims of Iceland appear to be fully covered
by the 200-mile line (BCD on sketch-map No. 1, p. 45 above) which the Parties
are treating as the southern limit of the delimitation requested of the Court.
It is appropriate to treat as relevant the coasts between points E and F and
between points G and H on sketch-map No. 1, in view of their role in generating
the complete course of the median line provisionally drawn which is under
examination. The question for the Court is thus the following. The difference in
length of the relevant coasts is striking. Regard being had to the effects
generated by it, does this disparity constitute, for purposes of the 1958
Convention, a "special circumstance", and as regards the delimitation
of the fishery zones a "relevant circumstance" for purposes of the
rules of customary law, requiring an adjustment or shifting of the median line?
68. A delimitation by the median line would, in the view of the Court,
involve disregard of the geography of the coastal fronts of eastern Greenland
and of Jan Mayen. It is not a question of determining the equitable nature of a
delimitation as a function of the ratio of the lengths of the coasts in
comparison with that of the areas generated by the maritime projection of the
points of the coast (cf. Continental Shelf (Libyan Arab Jamahiriya/Malta),
I.C.J. Reports 1985, p. 46, para. 59), nor of "rendering the situation
of a State with an extensive coastline similar to that of a State with a
restricted coastline" (North Sea Continental Shelf I.C.J.
Reports 1969, pp. 49-50, para. 91). Yet the differences in length of the
respective coasts of the Parties are so significant that this feature must be
taken into consideration during the delimitation operation. It should be
recalled that in the Gulf of Maine case the Chamber considered that a
ratio of 1 to 1.38, calculated in the Gulf of Maine as defined by the Chamber,
was sufficient to justify "correction" of a median line delimitation (I.C.J.
Reports 1984, p. 336, paras. 221-222). The disparity between the lengths of
coasts thus constitutes a special circumstance within the meaning of Article 6,
paragraph 1, of the 1958 Convention. Similarly, as regards the fishery zones,
the Court is of the opinion, in view of the great disparity of the lengths of
the coasts, that the application of the median line leads to manifestly
inequitable results.
69. It follows that, in the light of the disparity of coastal lengths, the
median line should be adjusted or shifted in such a way as to effect a
delimitation closer to the coast of Jan Mayen. It should, however, be made clear
that taking account of the disparity of coastal lengths does not mean a direct
and mathematical application of the relationship between the length of the
coastal front of eastern Greenland and that of Jan Mayen. As the Court has
observed:
"If such a use of proportionality were right, it is difficult indeed to
see what room would be left for any other consideration; for it would be at once
the principle of entitlement to continental shelf rights and also the method of
putting that principle into operation. Its weakness as a basis of argument,
however, is that the use of proportionality as a method in its own right is
wanting of support in the practice of States, in the public expression of their
views at (in particular) the Third United Nations Conference on the Law of the
Sea, or in the jurisprudence." (Continental Shelf (Libyan Arab
Jamahiriya/Malta), I.C.J. Reports 1985, p. 45, para. 58.)
70. Nor do the circumstances require the Court to uphold the claim of
Denmark that the boundary line should be drawn 200 miles from the baselines on
the coast of eastern Greenland, i.e., a delimitation giving Denmark maximum
extension of its claim to continental shelf and fishery zone. The result of such
a delimitation would be to leave to Norway merely the residual part (the polygon
ABFEA on sketch-map No. 1, p. 45 above) of the "area relevant to the
delimitation dispute" as defined by Denmark. The delimitation according to
the 200-mile line calculated from the coasts of eastern Greenland may from a
mathematical perspective seem more equitable than that effected on the basis of
the median line, regard being had to the disparity in coastal lengths; but this
does not mean that the result is equitable in itself, which is the objective of
every maritime delimitation based on law. The coast of Jan Mayen, no less than
that of eastern Greenland, generates potential title to the maritime areas
recognized by customary law, i.e., in principle up to a limit of 200 miles from
its baselines. To attribute to Norway merely the residual area left after giving
full effect to the eastern coast of Greenland would run wholly counter to the
rights of Jan Mayen and also to the demands of equity.
71. At this stage of its analysis, the Court thus considers that neither the
median line nor the 200-mile line calculated from the coasts of eastern
Greenland in the relevant area should be adopted as the boundary of the
continental shelf or of the fishery zone. It follows that the boundary line must
be situated between these two lines described above, and located in such a way
that the solution obtained is justified by the special circumstances
contemplated by the 1958 Convention on the Continental Shelf, and equitable on
the basis of the principles and rules of customary international law.
[pp. 71-72] 75. As has happened in a number of earlier maritime
delimitation disputes, the Parties are essentially in conflict over access to
fishery resources: this explains the emphasis laid on the importance of fishing
activities for their respective economies and on the traditional character of
the different types of fishing carried out by the populations concerned. In the
Gulf of Maine case, which concerned a single maritime boundary for
continental shelf and fishery zones, the Chamber dealing with the case
recognized the need to take account of the effects of the delimitation on the
Parties' respective fishing activities by ensuring that the delimitation should
not entail "catastrophic repercussions for the livelihood and economic
well-being of the population of the countries concerned" (I.C.J.
Reports 1984, p. 342, para. 237). In the light of this case-law, the Court
has to consider whether any shifting or adjustment of the median line, as
fishery zone boundary, would be required to ensure equitable access to the
capelin fishery resources for the vulnerable fishing communities concerned.
76. It appears to the Court that the seasonal migration of the capelin
presents a pattern which, north of the 200-mile line claimed by Iceland, may be
said to centre on the southern part of the area of overlapping claims,
approximately between that line and the parallel of 72· North latitude, and
that the delimitation of the fishery zone should reflect this fact. It is clear
that no delimitation in the area could guarantee to each Party the presence in
every year of fishable quantities of capelin in the zone allotted to it by the
line. It appears however to the Court that the median line is too far to the
west for Denmark to be assured of an equitable access to the capelin stock,
since it would attribute to Norway the whole of the area of overlapping claims.
For this reason also the median line thus requires to be adjusted or shifted
eastwards.
[pp. 73-74] 79. Denmark considers as also relevant to the
delimitation the major differences between Greenland and Jan Mayen as regards
population and socio-economic factors. It has pointed out that Jan Mayen has no
settled population, as only 25 persons temporarily inhabit the island for
purposes of their employment (paragraph 15 above); indeed, in Denmark's view,
Jan Mayen cannot sustain and has not sustained human habitation or economic life
of its own. As already noted (paragraph 14 above) the total population of
Greenland is 55,000, of which some 6 per cent live in East Greenland. As regards
socio-economic factors, Denmark has emphasized the importance for Greenland of
fishing and fisheries-related activities, which constitute the mainstay of its
economy; Norwegian fishing interests in the waters surrounding Jan Mayen are
however the interests of mainland Norway, not of Jan Mayen as such, where there
are no fishermen. Denmark has also relied on what it refers to as the "cultural
factor", the attachment of the people of Greenland to their land and the
surrounding sea, in the light of which it would, Denmark contends, be difficult
if not impossible for the Greenlanders to accept that the sea area within the
200-mile zone off their coast should be curtailed in deference to the interests
of the people of a remote and highly developed industrial State.
80. Although Denmark has employed the terminology of Article 121, paragraph
3, of the 1982 United Nations Convention on the Law of the Sea, which provides
that "rocks which cannot sustain human habitation or economic life of their
own shall have no exclusive economic zone or continental shelf", it does
not argue that Jan Mayen has no entitlement to continental shelf or fishery
zones, but that when maritime boundaries are to be established between that
island and the territories of Iceland and Greenland, the island of Jan Mayen
cannot be accorded full effect, but only partial effect, a contention which the
Court has already found unacceptable (paragraph 70 above). Nor, in the view of
the Court, does the "cultural factor" point to a different conclusion.
The question is whether the size and special character of Jan Mayen's
population, and the absence of locally based fishing, are circumstances which
affect the delimitation. The Court would observe that the attribution of
maritime areas to the territory of a State, which, by its nature, is destined to
be permanent, is a legal process based solely on the possession by the territory
concerned of a coastline. The Court finds relevant in the present dispute the
observations it had occasion to make, concerning continental shelf delimitation,
in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case:
"The Court does not however consider that a delimitation should be
influenced by the relative economic position of the two States in question, in
such a way that the area of continental shelf regarded as appertaining to the
less rich of the two States would be somewhat increased in order to compensate
for its inferiority in economic resources. Such considerations are totally
unrelated to the underlying intention of the applicable rules of international
law. It is clear that neither the rules determining the validity of legal
entitlement to the continental shelf, nor those concerning delimitation between
neighbouring countries, leave room for any considerations of economic
development of the States in question. While the concept of the exclusive
economic zone has, from the outset, included certain special provisions for the
benefit of developing States, those provisions have not related to the extent of
such areas nor to their delimitation between neighbouring States, but merely to
the exploitation of their resources." (I.C.J. Reports 1985, p. 41,
para. 50.)
The Court therefore concludes that, in the delimitation to be effected in
this case, there is no reason to consider either the limited nature of the
population of Jan Mayen or socio-economic factors as circumstances to be taken
into account.
[pp. 74-75] 81. Norway has argued, in relation to the Danish claim
to a 200-mile zone off Greenland, that
"the drawing of a boundary closer to one State than to another would
imply an inequitable displacement of the possibility of the former State to
protect interests which require protection".
It considers that, while courts have been unwilling to allow such
considerations of security to intrude upon the major task of establishing a
primary boundary in accordance with the geographical criteria, they are
concerned to avoid creating conditions of imbalance. The Court considers that
the observation in the Libya/Malta Judgment (I.C.J. Reports 1985,
p. 42, para. 51), that "security considerations are of course not
unrelated to the concept of the continental shelf", constituted a
particular application, to the continental shelf, with which the Court was then
dealing, of a general observation concerning all maritime spaces. In the present
case the Court has already rejected the 200-mile line. In the Continental
Shelf (Libyan Arab Jamahiriya/Malta) case, the Court was satisfied that
"the delimitation which will result from the application of the present
Judgment is ... not so near to the coast of either Party as to make questions of
security a particular consideration in the present case" (I.C.J.
Reports 1985, p. 42, para. 51).
The Court is similarly satisfied in the present case as regards the
delimitation to be described below.
[pp. 76-77] 85. So far as Bear Island is concerned, this territory
is situated in a region unrelated to the area of overlapping claims now to be
delimited. In that respect, the Court would observe that there can be no legal
obligation for a party to a dispute to transpose, for the settlement of that
dispute, a particular solution previously adopted by it in a different context.
Even if the Svalbard delimitation be treated as international, Norway is no more
bound by that solution than Denmark is bound to apply in the present dispute the
method of equidistance used to effect delimitation between Norway and Denmark in
the Skagerrak and part of the North Sea or off the Faroe Islands.
86. Denmark's argument based on the Agreements concluded between Iceland and
Norway for the delimitation of the areas south of Jan Mayen deserves particular
consideration, inasmuch as those instruments directly concern Jan Mayen itself.
By invoking against Norway the Agreements of 1980 and 1981, Denmark is seeking
to obtain by judicial means equality of treatment with Iceland. It is
understandable that Denmark should seek such equality of treatment. But in the
context of relations governed by treaties, it is always for the parties
concerned to decide, by agreement, in what conditions their mutual relations can
best be balanced. In the particular case of maritime delimitation, international
law does not prescribe, with a view to reaching an equitable solution, the
adoption of a single method for the delimitation of the maritime spaces on all
sides of an island, or for the whole of the coastal front of a particular State,
rather than, if desired, varying systems of delimitation for the various parts
of the coast. The conduct of the parties will in many cases therefore have no
influence on such a delimitation. The fact that the situation governed by the
Agreements of 1980 and 1981 shares with the present dispute certain elements
(identity of the island, participation of Norway) is of no more than formal
weight. For these reasons, the Court concludes that the conduct of the Parties
does not constitute an element which could influence the operation of
delimitation in the present case.
[p. 88 D. Ranjeva] Lastly, I regret that paragraph 55 should have
been limited to a mere description of the relation between "special
circumstances" and "relevant circumstances", without managing to
pinpoint their precise meaning, which would have brought out their inherent
unity. For it is important to specify that it is in relation to the rights of
the Parties over their maritime spaces that these circumstances can - or,
sometimes, should - be taken into account in a delimitation operation. Hence,
special or relevant circumstances appear as facts which affect the rights of
States over their maritime spaces as recognized in positive law, either in their
entirety or in the exercise of the powers relating thereto.
[p. 109 S.O. Oda] 68. It may be contended that there can be a legal
framework within which - and only within which - the content of an agreement is
justifiable under international law and that any agreement contrary to jus
cogens should be regarded as invalid. For example, an agreement obtained by
duress might be open to challenge. Except in that very general sense, there does
not in my view exist any jus cogens governing the delimitation of
overlapping maritime titles. The parties can freely negotiate and can reach an
agreement on whatever they wish, employing all possible elements and factors to
strengthen.their own position. In other words, there is no legal
constraint, hence no rule, which guides the negotiations on delimitation, even
though the negotiations should be directed "to achiev[ing] an equitable
solution". Disagreement over the points arising during the effort to reach
agreement cannot constitute a "legal dispute", because law is not
involved in choosing the line among infinite possibilities.
[pp. 109-110 S.O. Oda] 70. Whether the boundary of the continental
shelf areas and the boundary of the exclusive economic zone are or are not
identical will depend quite simply on the result of each delimitation, which can
well be different with respect to the two different areas. In the absence of an
agreement between the States concerned, one cannot presuppose a single
delimitation for two separate and independent regimes, the exclusive economic
zone and the continental shelf, although the possibility of an eventual
coincidence of the two lines may not be excluded.
71. I have however some sympathy with the Danish attitude and with the
Court's tendency to prefer a single maritime boundary, since, if the acceptance
of wider claims to coastal jurisdiction over offshore fisheries had been seen as
inevitable, those two regimes should have been amalgamated in the new law of the
sea. What is deplorable about the new order in the oceans (which was being
prepared in UNCLOS III) is the fact that an immature concept of the exclusive
economic zone has been introduced to coexist with the previously accepted
concept of the continental shelf which has been re-defined and thus transformed,
and that the concept of the exclusive economic zone has in fact had the effect
of ousting the latter concept. Article 56, paragraph 3, which provides that
"[t]he rights set out in this article [rights, jurisdiction and duties
of the coastal State in the exclusive economic zone] with respect to the seabed
and subsoil shall be exercised in accordance with Part VI [continental shelf]",
which was incorporated without discussion, seems to be an extremely
misguided provision and is difficult to understand.
72. If UNCLOS III was set upon instituting the exclusive economic zone, it
ought frankly to have first wound up the original concept of the continental
shelf. Thus the régime under the 1982 Convention remains immature in some
respects, such as the exclusive economic zone and the continental shelf. At all
events, the transformed concept of the continental shelf espoused by the 1982
Convention still remains unclear, particularly in its relation to the parallel régime
of the exclusive economic zone, and does not stand up to criticism from a purely
legal standpoint. As has already been said (para. 37 above), the continental
shelf (which should have been examined more cautiously with the introduction of
its new definition) was scarcely discussed at UNCLOS III.
73. However, in spite of all I have said, the two régimes of the
exclusive economic zone and the continental shelf exist separately and in
parallel in the 1982 United Nations Convention, hence in existing international
law, and the delimitation for each is different.
[p. 114 S.O. Oda] 88. Only in a case in which the parties in dispute
have asked the Court by agreement to effect a maritime delimitation ex aequo
et bono is it qualified to examine what factors or elements should be taken
into account as relevant, and to what degree such factors or elements should be
evaluated when it is determining the line to be drawn or indicating a concrete
line based on its own evaluation of the relevant factors and elements.
89. I must add furthermore that, if a single maritime delimitation for the
continental shelf and the exclusive economic zone is to be effected by the Court
in response to a joint request by the parties in dispute, then the parties have
to agree which factors or elements relevant to either the exclusive economic
zone or the continental shelf (or, in other words, relevant to either fishery
resources or mineral resources), are to be given priority. The Court is not
competent even as an arbitrator to decide the priority of either the exclusive
economic zone or the continental shelf unless expressly requested to do so by
the parties.
[pp.127-129 S.O. Schwebel] As noted, in this case Article 6 of the
1958 Convention has mandatory force, for the Parties and for the Court. But the
1958 Convention concerns the continental shelf; it does not govern the fishing
zone. It is agreed by the Parties and the Court alike that customary
international law governs delimitation of the fishing zone. It is also agreed
that, in this case of opposite coasts, it would make no practical sense for the
delimitation of the fishing zone to produce a line which differs from that to be
drawn for delimitation of the continental shelf.
The saving grace for the Court's Judgment in these circumstances is that the
customary law governing delimitation of the fishing zone is elastic indeed,
having been shaped by the Court's judicial and by arbitral decisions and the
porous terms of the United Nations Convention on the Law of the Sea. Under that
Convention, which is not in force, an equitable solution is to be achieved, for
the continental shelf and the exclusive economic zone, on the basis of
international law as referred to in Article 38 of the Statute of the Court.
Nothing is said in these Convention provisions of equidistance, or special
circumstances, or relevant circumstances. Permeable as the Convention's
provisions are, they exclude an equitable solution based not on international
law but considerations ex aequo et bono. The terms of Article 38 of the
Statute distinguish between the function of judicial decision in accordance with
international law which applies the sources of that law, and the power of the
Court to decide a case ex aequo et bono if the parties so agree.
Nevertheless, the authority to seek an equitable solution by the application
of a law whose principles remain largely undefined affords the Court an
exceptional measure of judicial discretion. In this Judgment, the Court's
attempted definition of that law ultimately does little more than require the
investigation of "relevant circumstances" which have to be taken into
account if an equitable result is to be achieved. Invoking "relevant
circumstances" is in accord with earlier Judgments of the Court, beginning
with the North Sea Continental Shelf cases, and is consistent with the
tenor of the debate at the Third United Nations Conference on the Law of the
Sea. If the Court draws from the cornucopia of judicial discretion afforded by
its appreciation of what circumstances are relevant the decision that the
fishing zone shall be equally apportioned in this case, it is difficult to
maintain that that exercise of discretion is more objectionable than indication
of an alternative line.
If that is so, the question then arises, should the continental shelf line
imported by the 1958 Convention - the median line - govern, or should the
fishing zone line indicated by the Court's sense of equity govern?
There is no ready answer to this conundrum. It might on the one hand be
maintained that the 1958 Convention affords anterior and harder law, unmodified
by a subsequent treaty in force. It should accordingly govern, the more so
because there are a number of continental shelf agreements and awards which are
in force which are not treated as having been reworked by the subsequent advent
of the concept of the exclusive economic zone or variants thereof or by the
lenient terms of the United Nations Convention on the Law of the Sea. On the
other hand, it might be maintained that, even if that be generally so, the real
interests at stake in this case involve the apportionment of fishing rights and
that, therefore, the Court's appreciation of fishing zone equities should govern
any apportionment of the continental shelf.
The Court avoids a choice between these approaches by maintaining that it
applies "a general norm based on equitable principles" amalgamating
the two in a formula it describes as "the equidistance-special
circumstances rule". Whether, in view of the reasoning employed in this
case by the Court, it has effectively employed that rule is debatable. But what
is clear is that the Court leavens its Judgment with a large infusion of
equitable ferment, importing as it does a search for "relevant
circumstances", and so concocts a conclusion which does not lend itself to
dissection or, for that matter, dissent. Based on large and loose approaches
such as its gross impression of the effects of differing lengths of coasts, its
desire to afford equitable access to fishing resources, and the attractions of
the symmetrical conjoinder of indicated lines of delimitation, the Court comes
up with a line which, given the criteria employed, may be as reasonable as
another. Where this leaves the law of maritime delimitation, to the extent that
such a law subsists, is perplexing.
[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 irreconcilable
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.
[p. 148 S.O. Shahabuddeen] The expression "special
circumstances" is aptly used in a provision operating as an exception to a
rule requiring the application of the equidistance method in the absence of
agreement; it is inapt if sought to be read as a reference to all relevant
circumstances in the light of which a choice is to be made among any of a number
of possible methods (including equidistance) with a view to producing the most
equitable delimitation. In the former case, the circumstances are "special"
in the sense that they create inequity if a particular delimitation method -
that of equidistance - is applied and accordingly operate to justify the putting
aside of the rule requiring the use of that method; in the latter case, the
circumstances are simply those which are "relevant" to the choice of
the most equitable method of delimitation (including equidistance as a possible
method) and not only those which justify putting aside a rule of law requiring
the use of that particular method (see Charles Valleé, "Le droit des
espaces maritimes", in Droit international public, Paris, 4th ed.,
1984, p. 375).
In effect, under Article 6, paragraph 1, of the 1958 Convention, the
equidistance method applies not because "special circumstances"
require it to apply, but because there are no "special circumstances"
to prevent it from applying. By contrast, under customary international law, the
equidistance method applies only where the "relevant circumstances"
require its application. Combining these two perspectives, one may say that,
whereas "relevant circumstances" may well require the application of
equidistance, "special circumstances" can only operate to exclude it,
and never to apply it. Hence, as compared with "relevant circumstances",
"special circumstances" are both narrower in scope and exclusionary in
effect in relation to the use of the equidistance method. Relevant circumstances
exist in all cases; special circumstances exist only in some. A question can
arise as to whether special circumstances exist, and, when it arises, it may be
resolved, by agreement or other form of determination, to the effect that such
circumstances do or do not exist. No question can ever arise as to whether
relevant circumstances exist, for they always do.
[pp. 167-168 S.O. Shahabuddeen] It seems to me that the influence on
proportionality which the concept of natural prolongation, considered in its
geophysical sense, exerted in the seminal case of 1969 continued even after
greater weight began to be placed on the purely legal aspects of the idea. It is
possible, however, to see in the evolution of the jurisprudence, culminating on
this point in the Libya/Malta case, a growing readiness, in the case of
the normal continental shelf, to come to terms with the implications of the
supersession of natural prolongation by the distance criterion and a
corresponding willingness to admit proportionality to a fuller role unrestrained
by the "definite limits" which natural prolongation had previously
imposed on recourse to it.
Even with the restraints imposed on proportionality by the fundamental
concept of natural prolongation, in none of the cases dealt with by the Court
can it persuasively be said that the Court did not in one way or another show a
concern with the question whether the delimitation line established by it would
divide the maritime areas in keeping with reasonable expectations deriving from
a comparison of coastal lengths. Whatever the methodology employed, the Court
has always seemed aware of the need to avoid a defeat of those expectations. It
is not really credible to assert that the decisive consideration in the North
Sea cases was not the fact that the three coastlines were comparable in
length. The capacity, and the duty, of the Court to satisfy such expectations
need now to be re-evaluated in the light of the evolution of the concept of
natural prolongation.
It is not a satisfactory answer to say that proportionality could result in
one State exercising jurisdiction under the nose of another. The
non-encroachment principle, extended to the continental shelf as now understood,
still remains to prevent that from happening, by setting an appropriate limit to
the extent to which proportionality can bring one State close to another (Libya/Malta,
I.C.J. Reports 1985, p. 89, para. 34, joint separate opinion). Nor is it
enough to iterate the unchallenged proposition that proportionality is not in
itself a direct principle of delimitation; there have always been, and there
still are, other considerations to be taken into account in determining a
delimitation line (ibid., p. 45, para. 58). To divide the
continental shelf in mechanical proportion to the coastal lengths would
impermissibly exclude such other considerations. Mathematical exactness is not
the aim. This is apart from the circumstance that proportionality could be
satisfied by different conceivable lines (Tunisia/Libya, I.C.J. Reports
1982, p. 258, para. 162, Judge Oda, dissenting). These various
considerations continue to place their own restraints on proportionality; and
consequently the reference in the Libya/Malta case to "the need to
avoid in the delimitation any excessive disproportion" seems a reasonable
way of putting the matter (I.C.J. Reports 1985, p. 57). But, in
construing and applying this formulation, it would be right to take the general
view that the role of proportionality is now necessarily larger to the extent
that the "definite limits" previously imposed on recourse to it by "the
fundamental principle" of natural prolongation have been relaxed, if not
removed, with the supersession of the latter by the principle of adjacency
measured by distance.
[pp. 305-306 D.O. Fischer] 5. I disagree with the Court when it
deduces from Article 6 that it is appropriate provisionally to draw a median
line as a first stage in the delimitation process.
By means of this legal method the Court has been able to reach its decision
of establishing a delimitation line located between the lines claimed by the two
Parties.
The approach whereby the Court first used a provisionally drawn median line
and then enquired whether special circumstances required another boundary is set
forth in the Judgment after the Court's rejection of the Norwegian contentions
that median lines are in place, but before it considers whether the Danish
claims are equitable or justified. The Court apparently arrived a priori
at the conclusion that those claims would lead to an inequitable result.
I do not consider this manner of proceeding to be the proper one. In my
view, the Court should, after having examined the Norwegian claims, have
examined the Danish claims and only then, if the Danish claims were found to
lead to an inequitable result, should it have considered whether a provisional
line - the median line or another line - could appropriately be used.
6. The Court has in my view not produced any substantial arguments in favour
of the use of the median line as a starting point for the delimitation process.
I do not see how one can defend the contention that Article 6 of the 1958
Convention justifies this method. The Article does not contain any provisions
about using the median line as a provisionally drawn line.
The Court has assumed that the striking difference in the length of the two
relevant coasts constitutes "special circumstances" within the meaning
of Article 6, which means that a delimitation line other than the median line
has to be established. It is difficult to understand how it can then conclude
that a median line should be used as a provisional line.
[p. 306 D.O. Fischer] 8. It seems to me that the Court, when
deciding to use a median line as a provisional line, has accorded a preferential
and unwarranted status to the median line.
This attitude corresponds to the general attitude of the Court in this case
to the effect that prima facie a median line between opposite coasts results in
an equitable solution. This does not, in my opinion, correspond to the
developments in international law since 1958 especially as codified by the 1982
Convention on the Law of the Sea, which has diminished the significance attached
to the median line principle, seen as no more than one means among others of
reaching an equitable result.
[p. 308 D.O. Fischer] 11. ... Customary law does not define the term
"equitable", which is used to characterize both the result to be
achieved and the means to be employed in order to attain it. It is, however, the
result which is predominant, so that the equitableness of a principle
(criterion) is assessed in the light of its usefulness for the purpose of
arriving at an equitable result. The equitableness of the result is to be
determined by a balancing up of all the relevant factors of the particular case
(North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 50,
para. 93). International tribunals have found a variety of factors or methods to
be relevant, and no factors or methods are considered to have a privileged
status in relation to others. This was clearly stated in the North Sea
Continental Shelf cases (ibid., pp. 53-56, para. l0l) and in the
Guinea/Guinea-Bissau case, 1985 (International Legal Materials, Vol.
XXV, No. 2, 1986, p. 294, para. 102).
12. The factors which, in accordance with international judicial practice,
have primarily to be taken into consideration are those related to the
geographical features of the case, especially the relevant area and the relevant
fronting coasts. The length of the relevant eastern coast (baseline) of
Greenland is approximately 524 kilometres, the length of the fronting western
coast of Jan Mayen is approximately 57.8 kilometres. Thus, the ratio of coastal
lengths is more than 9 to l in favour of Greenland, so that this case is
characterized by a very marked difference between the lengths of the two
relevant opposite coasts. This is why the proportionality factor is crucial. In
the context of a delimitation of the continental shelf, a reference to that
factor is generally taken to imply that there should be a reasonable degree of
proportionality between the area of the continental shelf of the States
concerned and the length of their relative coastlines.
[p. 310 D.O. Fischer] 14. ... Contrary to the standpoint of the
Court, I consider that not only geographical but also population and
socio-economic factors play a part when one is assessing the equitableness of a
maritime delimitation (Delimitation of the Maritime Boundary in the Gulf of
Maine Area, I.C.J. Reports 1982, p. 278, para. 59, and p. 340, para. 232).
There is no question of assessing single factors individually as relevant, but
of assessing and weighing them up collectively.
The present case is characterized not only by a very marked difference
between the lengths of the two relevant coasts (and the size of the two
landmasses), but also by a fundamental difference between Greenland and Jan
Mayen with respect to their demographic, socio-economic and political
structures. Greenland is a viable human society with a population of 55,000 and
with political autonomy, whereas Jan Mayen has no population in the proper sense
of the word, as only about 25 persons temporarily stay on the island manning
meteorological, radio and LORAN stations.
[pp. 310-311 D.O. Fischer] 15. The economic and other interests
described by the Parties in this case are fundamentally different. The interests
described by Denmark are interests directly connected with Greenland whereas the
interests described by Norway are interests connected with the Norwegian
mainland and its population, not with Jan Mayen. As the case concerns
delimitation of the maritime area between Greenland and Jan Mayen it seems to me
that only the population and socio-economic structures of these territories are
in fact relevant and that, in this connection especially, the total dependence
of Greenland on fisheries needs to be stressed.
It is generally recognized that a heavy dependence on fisheries may be a
relevant factor in international law, as far as territories like Greenland are
concerned. This appears from a resolution which was adopted in connection with
the Convention of 29 April 1958 on Fishing and Conservation of the Living
Resources of the High Seas. In connection with the adoption of the resolution,
particular mention was made of Iceland, the Faroe Islands and Greenland, as
countries whose people are overwhelmingly dependent upon coastal fisheries for
their livelihood or economic development. That the needs of the coastal
population of Greenland justify special protective measures was also recognized
in the Judgment of 30 November 1982 of the Court of Justice of the European
Communities.
The Court has, as mentioned, taken account of the factor of access to what
it considered to be the capelin zone as it has found that a division of the
southern part of the area of overlapping claims into two equal parts would give
both Parties equitable access to the fishing resources of the area. In other
words, a new type of median line has been introduced. I disagree with the
grounds of the Court as they disregard the above-mentioned socio-economic
factors.
[p. 311 D.O. Fischer] 16. The Court did not consider the maritime
delimitation between Iceland and Jan Mayen, as effected by the treaties of 1980
and 1981, to be a precedent and the conduct of the Parties to constitute an
element which could influence the operation of delimitation in the present case.
I agree that these treaties do not constitute a binding precedent in the
strict sense of the term but they are in my opinion nevertheless relevant as an
expression of the conduct of Norway and as such of great importance to the
present case.
[pp. 312-313 D.O. Fischer] 19. ... The delimitation between Iceland
and Jan Mayen must, as already stated, be considered to be equitable. As the
factors which were relevant in that case are very similar to the relevant
factors in the Greenland/Jan Mayen case, it would have been just and equitable
to draw the delimitation line in the present case in a manner similar to the way
in which the lines were drawn in the Iceland/Jan Mayen case, that is to say, at
a distance of 200 nautical miles from East Greenland.
20. As for the delimitation in the maritime area between Bear Island and
mainland Norway, the Court has found that Norway is no more bound by that
solution than is Denmark to apply, in the present dispute, the method of
.equidistance used to effect the delimitation between Norway and Denmark in the
Skagerrak and the North Sea or off the Faroe Islands. I do not see any analogy
between the delimitation situations concerning Bear Island and the delimitations
in the North Sea mentioned by the Court as the situation concerning Bear Island
is very special. I consider that the Bear Island delimitation, although it
concerns delimitation between two Norwegian territories, has international
aspects and that it is of a certain relevance as expressing the conduct of
Norway concerning a maritime delimitation of an area located between an
uninhabited small island and a mainland.
| 1 | Footnote omitted |
| 2 | Footnote omitted |
