II. | Substantive International Law - Second Part |
2. | LAW OF THE SEA |
2.4. | Maritime Zones |
¤
Maritime Delimitation in the Area
between Greenland and Jan Mayen,
Judgment, I.C.J. Reports 1993, p. 38
[p. 95 S.O. Oda] 17. While the régime envisaged for the
exclusive economic zone was still in a chaotic state at the early stages of
UNCLOS III (the Caracas session in 1974 and the Geneva session in 1975), a
number of States, which had discerned the general trend of expansion of coastal
jurisdiction over extended offshore areas, vied with each other, prior to the
adoption of the Convention at the Conference in 1982, in bluntly claiming their
fishery interests in those areas.
18. Denmark established a 200-mile "fishery territory" by Act No.
597 of 17 December 1976 to replace its Act No. 207 of 1964, and Norway established
a 200-mile "economic zone" by its Act No. 91 of 17 December 1976 and
its Royal Decree of the same date. Other States were meanwhile making haste to
declare a 200-mile fishery zone in order to secure exclusive control of fishing
in their respective offshore areas, disregarding the concept of the exclusive
economic zone (which was to be suggested at UNCLOS III for incorporation into
the as yet unfinalized Convention).
19. This unilateral process does not alter the fact that, under the 1982
United Nations Convention on the Law of the Sea, whose rules in most respects
are widely held to have superseded earlier law, the claim to a distance of 200
miles is permissible only in respect of the exclusive economic zone (defined in
detail and in strict terms in Part V of the Convention), in which due
consideration is given to the common interest of the rest of the world - that
is, to the conservation and optimum utilization of fishery resources.
[pp. 95-96 S.O. Oda] 20. There is certainly no provision in the 1982
Convention that relates to a 200-mile "fishery zone" as such. The "fishing
zone" (or "fishery zone") which Denmark and Norway established
respectively (and which Denmark mentions in its Application) is not the
exclusive economic zone as defined in that Convention.
21. However, it is undeniable that today a number of States have claimed a
200-mile "fishery zone" or "economic zone" - but not
an "exclusive economic zone". These States include Canada,
Germany, Japan, the Netherlands and the United States, all of which would have
been strongly opposed to the exercise of exclusive fishing rights by coastal
States in offshore areas beyond the limit of the territorial sea even if the
latter had been extended from its traditional 3-mile to a 12-mile limit. It may
for this reason be contended that, thanks to these repeated claims made by
certain States, including both developed and developing countries (many of which
have been asserted during the past decade), the concept of the 200-mile fishery zone has become customary international law quite
independently of the 1982 Convention.
22. It is noted that the respondent State, Norway, has also and in the same
manner laid claim to a 200-mile "fishing zone". Thus I am ready to
accept that the Court was bound, in these proceedings, to proceed with the "fishery
zone" as an established concept, setting aside that of the "exclusive
economic zone".
23. As the concept of the "fishery zone" has no standing, at least
in the l982 Convention, and still remains a merely political concept, I
would have liked the Court to have taken a clear stance with respect to the
confusion (by not only the Applicant but by both Parties) between the concepts
of the "exclusive economic zone" and the "fishery zone". Its
failure to do so leads me to wonder what will become in future of the concept of
the exclusive economic zone, as provided for in that Convention. I am afraid
that the concept of the "exclusive economic zone" will appear
completely obsolete, even before the 1982 Convention has come into force.
[pp. 105-106 S.O. Oda] 61. As has already been explained (para. 50
above), Article 6 of the Convention is applicable to the continental shelf in an
orthodox sense, i.e., the sea-bed areas inside the 200-metre isobath. The area
between Greenland and Jan Mayen is not a continental shelf in that sense, though
it certainly is taken to be a continental shelf in accordance with the
transformed concept. This is a point of which, in my view, the Applicant and the
Court were not sufficiently aware. It seems to me that the Parties to this case
and the Court erred in taking the 1958 Convention as the rule with regard to the
delimitation of the continental shelf while the rule of the 1982 Convention is
valid for the delimitation of the exclusive economic zone. What applies today to
the delimitation of either the exclusive economic zone or the continental shelf
is the 1982 United Nations Convention - or customary international law which may
be reflected in that Convention.