| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.1. | General Rules |
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Maritime Delimitation in the Area
between Greenland and Jan Mayen
Judgment, I.C.J. Reports 1993, p. 38
[pp. 113-114 S.O. Oda] 85. Accordingly, and on the premise that
there are in fact no rules of law for effecting a maritime delimitation in the
presence of overlapping titles (not overlapping claims), it
follows that if the Court is requested by the parties to decide on a maritime
delimitation in accordance with Article 36, paragraph 1, of the Statute, it will
not be expected to apply rules of international law but will simply "decide
a case ex aequo et bono".
86. In other words, the presentation of a case of maritime delimitation by
agreement between the States in dispute in accordance with Article 36, paragraph
1, means by implication that the parties are requesting the Court "to
decide a case ex aequo et bono" in accordance with Article 38,
paragraph 2, of the Statute. For instance, in my view, the Judgment of the Court
in the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta)
must be interpreted as having been given on that basis, even though the
Court never expressly stated as much. It certainly is not a convincing
exposition of the law.
87. However, there is no escaping the fact that the rendering of a decision
ex aequo et bono is only admissible with the consent of the parties.
This was not a big problem in earlier delimitation cases, because the consent
derived or could be inferred from the special agreement concerned. But if the
Court intended in this case to apply equitable considerations, it
should, in my view, first have decided that the submissions or, alternatively,
the arguments of the Parties, in particular Norway, permitted the conclusion
that a consent had emerged between them amounting to a special agreement to the
effect that the Court was not bound to adhere to strict law. In this way the
case could conceivably have been, so to speak, transferred from the ambit of
Article 36, paragraph 2, to that of Article 36, paragraph 1, as a very special
case of forum prorogatum.
[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. 196-197 S.O. Shahabuddeen] Nothing in these trends provides
justification for dispensing with the need to define the area of judicial
discretion by clear bounds, or to establish criteria governing its exercise
within the prescribed limits. But it seems to me that such limits are to be
found in the settled principle that the Court is concerned not to apportion
common property, but to delimit rights already separately appertaining to each
party. As argued above, a delimitation may indeed operate to settle definitively
what is the extent of competing rights in marginal areas, but it does not have
the effect of sharing out undivided property. The criteria governing a
delimitation are also reasonably clear (see, for example, Gulf of Maine,
I.C.J. Reports 1984, pp. 312-313, para. 157; and Libya/Malta, I.C.J.
Reports 1985, pp. 39-40, para. 46). What remains is the task of weighing and balancing the operation
of the applicable criteria within those limits. Admittedly, the process could be
a difficult one, because, as the Court said in 1969, "The problem of the
relative weight to be accorded to different considerations naturally varies with
the circumstances of the case" (North Sea, I.C.J. Reports 1969, p.
50, para. 93). But difficulties of this kind experienced in discharging the task
of the Court are not enough to take the Court beyond the province of the
judicial mission.
The need to weigh and balance competing considerations necessarily places a
limit on the capacity of a court to adjudicate with mathematical precision.
Inability to demonstrate that level of exactness is not inconsistent with the
due discharge of the judicial mission. To expect more is not merely to
overestimate the judicial function; it is to misunderstand it. The
misunderstanding is compounded where that function relates to maritime
delimitation, a field in which it is particularly useful to bear in mind
Professor Paul Reuter's general remark that international law "est nécessairement
simple et un peu rustique" (I.C.J. Pleadings, Temple of Preah Vihear,
Vol. II, p. 85). To be sure, there is substance in the view that "a
decision cannot be equitable when litigants do not understand the decision, how
it was reached, nor why such legal rules should be applied to" the
situation 1. However generously one may be inclined to locate the boundaries
of judicial discretion, it has always to be exercised on a disciplined basis and
with reference to verifiable criteria. Yet, looking at the nature of the Court's
functions in this case and at a certain indeterminacy in the circumstances to be
taken into account, I consider that there is a sufficiency of reasoning to
sustain its view that neither Norway's claim to the median line nor Denmark's
claim to the 200-rnile line is right, and that an equitable line is that
established by its Judgment.
