Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway)

On 16 August 1988, the Government of Denmark filed in the Registry an Application instituting proceedings against Norway, by which it seised the Court of a dispute concerning the delimitation of Denmark’s and Norway’s fishing zones and continental shelf areas in the waters between the east coast of Greenland and the Norwegian island of Jan Mayen, where both Parties laid claim to an area of some 72,000 square kilometres. On 14 June 1993, the Court delivered its Judgment. Denmark had asked the Court to draw a single line of delimitation of those areas at a distance of 200 nautical miles measured from Greenland’s baseline, or, if the Court did not find it possible to draw such a line, in accordance with international law. Norway, for its part, had asked the Court to find that the median line constituted the two lines of separation for the purpose of the delimitation of the two relevant areas, on the understanding that those lines would then coincide, but that the delimitations would remain conceptually distinct. A principal contention of Norway was that a delimitation had already been established between Jan Mayen and Greenland, by the effect of treaties in force between the Parties — a bilateral Agreement of 1965 and the 1958 Geneva Convention on the Continental Shelf — as both instruments provide for the drawing of a median line.

The Court noted, in the first place, that the 1965 Agreement covered areas different from the continental shelf between the two countries, and that that Agreement did not place on record any intention of the Parties to undertake to apply the median line for any of the subsequent delimitations of that continental shelf. The Court then found that the force of Norway’s argument relating to the 1958 Convention depended in the circumstances of the case upon the existence of “special circumstances” as envisaged by the Convention. It subsequently rejected the argument of Norway according to which the Parties, by their “conjoint conduct” had long recognized the applicability of a median line delimitation in their mutual relations. The Court examined 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 governed the fishery zone. After examining the case law in this field and the provisions of the 1982 United Nations Convention on the Law of the Sea, the Court noted that the statement (in those provisions) of an “equitable solution” as the aim of any delimitation process reflected the requirements of customary law as regards the delimitation both of the continental shelf and of exclusive economic zones. It appeared to the Court that, both for the continental shelf and for the fishery zones in the instant case, it was proper to begin the process of delimitation by a median line provisionally drawn, and it then observed that it was called upon to examine every particular factor in the case which might suggest an adjustment or shifting of the median line provisionally drawn. The 1958 Convention required the investigation of any “special circumstances” ; the customary law based upon equitable principles for its part required the investigation of the “relevant circumstances”.

The Court found that, although it was a matter of categories which were different in origin and in name, there was inevitably a tendency towards assimilation between the two types of circumstances. The Court then turned to the question whether the circumstances of the instant case required adjustment or shifting of the median line. To that end it considered a number of factors. With regard to the disparity or disproportion between the lengths of the “relevant coasts”, alleged by Denmark, the Court concluded that the striking difference in lengths of the relevant coasts constituted a special circumstance within the meaning of Article 6, paragraph 1, of the 1958 Convention. Similarly, as regards the fishery zones, the Court was of the opinion that the application of the median line led to manifestly inequitable results. The Court concluded therefrom that the median line should be adjusted or shifted in such a way as to effect a delimitation closer to the coast of Jan Mayen.

The Court then considered certain circumstances that might also affect the position of the boundary line, i.e., access to resources, essentially fishery resources (capelin), particularly with regard to the presence of ice ; population and economy ; questions of security ; conduct of the Parties. Among those factors, the Court only retained the one relating to access to resources, considering that the median line was too far to the west for Denmark to be assured of equitable access to the capelin stock. It concluded that, for that reason also, the median line had to be adjusted or shifted eastwards. Lastly, the Court proceeded to define the single line of delimitation as being the line M-N-O-A marked on the sketch-map reproduced on page 80 of the Judgment.