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World Court Digest

II. Substantive International Law - Second Part
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under the 1982 United Nations Convention on the Law of the Sea, whose rules in most respects are widely held to have superseded earlier law, the claim to a distance of 200 miles is permissible only in respect of the exclusive economic zone (defined in detail and in strict terms in Part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.