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II. Substantive International Law - Second Part
2.2. Determination of Maritime Boundaries

¤ 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.

1Footnote omitted
2Footnote omitted