Summaries of the Decisions
Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v. Norway)
Judgment of June 14, 1993
On June 14, 1993, the ICJ, by fourteen votes to one, delivered its judgment
concerning the delimitation by a single line for both the continental shelf and
the fishery zones between Greenland and Jan Mayen. On August 16, 1988, Denmark
instituted proceedings unilaterally on the basis of Art. 36 para. 2 of the
Statute.
In its request Denmark asked the Court to declare that Greenland is entitled
to a full 200-mile fishery zone and continental shelf area and to draw a single
line of delimitation accordingly. If, however, the Court would find it
impossible to draw the line thus requested, Denmark asked the Court to decide,
in accordance with international law and in light of the facts, where the
delimitation line should be drawn.
Norway, on the other side, was of the opinion that the delimitation line for
the continental shelf and the fishery zone was constituted by the median line
between the coasts of the territories concerned. Furthermore, Norway contended
that a delimitation already existed between Greenland and Jan Mayen, namely on
the basis of an Agreement concluded between the Parties in 1965 as well as on
the basis of the 1958 Geneva Convention on the Continental Shelf. The effect of
these treaties had been the establishment of the median line as delimitation of
the continental shelf zones. According to Norway, the practice of the Parties in
respect of fishery zones represented furthermore the recognition of existing
continental shelf boundaries as being applicable also for the fishery zones.
The ICJ did not share this view, since it considered the 1965 Agreement not
applicable to the case. According to Art. 1 of the Agreement the median line
between the territories of the Parties constituted the boundary between the
continental shelf areas, but Art. 2, which determined the straight baselines for
the region of delimitation, defined eight points, which all lie in the Skagerrak
and part of the North Sea and not in the relevant area of delimitation before
the Court. Even taking into account a subsequent treaty between the parties
concluded in 1979 could not confirm Norway's submission that Art.1 of the 1965
Agreement had been intended to commit the Parties to the median line in
delimiting the whole seabed between them. Thus, the Court found that the 1965
Agreement did not apply to the delimitation of the continental shelf in the
region between Greenland and Jan Mayen.
The Court, then, examined the practice of both Parties which, however, could
also not support Norway's claim for accepting the median line because there was
no relevant practice of Denmark.
As, accordingly, the Court could not find that the median line already
constituted the delimitation of the continental shelf areas between the Parties,
the Court had to define the law applicable for the delimitation. In this context
the first question to be answered was whether a single line could be drawn for
both the continental shelf and the fishery zones or whether there should be two
lines which might, however, coincide but had, nevertheless, to be distinguished
conceptually. In answering this question, the ICJ referred to the Gulf of Maine
case in which it had been asked for the first time to draw a single line for the
delimitation of different maritime zones. In the present case, the Court found
that there existed no agreement of the Parties empowering the Court to draw a
single maritime line with a dual purpose and so the Court examined separately
the law applicable to the continental shelf and the fishery zone.
For the delimitation of the continental shelf the 1958 Geneva Convention was
found to be the applicable law. The Court stated, however, that in applying the
Convention reference had to be made to the customary law on the subject and to
the fact that the fishery zone was also in question. For the delimitation of the
fishery zone the Court found the applicable law to be the relevant customary
law. After having examined the relevant precedents as well as the 1982 Law of
the Sea Convention the Court concluded that the "equitable result"
defined in this Convention as the purpose of each delimitation reflected the
conditions required by customary international law concerning the delimitation
of the continental shelf as well as that of the economic zone.
In drawing the delimitation line the Court found it appropriate to start
from a provisional median line for both zones and to consider subsequently
whether "special circumstances" as defined in the 1958 Geneva
Convention, Art. 6, or "relevant circumstances" as applied by
customary international law, which, according to the Court, could practically be
assimilated to the "special circumstances", required the shifting of
the provisionally drawn median line.
The first factor to be considered in the context of special or relevant
circumstances was the disparity of lengths of coasts which was of approximately
1 (for Jan Mayen) to 9 (for Greenland). In the light of the existing case-law of
the Court this disparity constituted a special circumstance which had to be
taken into account by shifting the median line in such a way as to effect a
delimitation closer to the coast of Jan Mayen in favour of Greenland with the
longer coast. This did not mean, however, that the relationship of the length of
coasts had to be reflected mathematically. On the other hand, the disparity of
the length of coasts did not require that the 200 nautical mile boundary claimed
by Denmark be upheld. This would result in a delimitation leaving Norway a
rather small part of the area in dispute despite the fact that, in principle,
the coast of Jan Mayen as well as that of Greenland generated potential title to
the maritime areas recognized by customary law, i.e. up to a limit of 200
nautical miles. To attribute to Denmark a 200 mile area would be contrary to the
rights of Jan Mayen and also to the demands of equity.
On the basis of these considerations, the ICJ decided that the line to be
finally drawn should be situated between the 200 mile line claimed by Denmark
and the median line claimed by Norway, taking into account some further special
factors of the region. One of those factors was access to fishery resources
which would become unequitable for Denmark if the median line was accepted; thus
also under this aspect the median line had to be shifted eastwards. Notably, the
Court did not consider relevant the population and socio-economic factors,
referring in this context to the continental shelf delimitation case between
Libya and Malta where it was determined that the delimitation should not be
influenced by the relative economic positions of the Parties to the dispute.
Similarly, the Court did not recognize as relevant the security interests
claimed by Norway against the recognition of the 200 nautical miles zone because
the definite line would be situated more than 200 miles off the coast of Jan
Mayen. Finally, the last factor claimed as relevant by Denmark in favour of its
claim of the 200 miles zone, i.e. the conduct of the Parties, did not, in the
view of the Court, constitute a relevant element. The delimitation between
Norway and Bear Island, which according to Denmark was proof of the conduct of
the Parties, was not relevant in the present case nor in the delimitation
between Norway and Iceland. These precedents did not, in the view of the Court,
imply any consequences for the present case since international law did not
prescribe a single method for the delimitation of all maritime zones of a
particular State, but only required that the result be equitable. Therefore, the
conduct of the Parties had not to be taken into account in this case.
The result thus reached by the Court was that the median line between the
coasts shifted in the direction of Jan Mayen - but not as far as reaching the
200 nautical miles line measured from the coast of Greenland - constituted the
line to be drawn in this case. Although Norway was of the opinion that the
actual line was to be drawn by the Parties on the basis of the decision of the
Court, the Court considered its task only fulfilled after having drawn the
concrete line. Accordingly, the Court fixed the line in the region situated
between the median line and the 200 miles-line by dividing this region into
three sectors and taking into account the relevant circumstances, in particular
the access to the fishery resources.
