Audience publique tenue le mercredi 13 janvier 1993, à 10 heures, au Palais de la Paix, sous la présidence de sir Robert Jennings, président

CR 93/3
International Court Cour internationale
of Justice de Justice
THE HAGUE La HAYE
YEAR l993
Public sitting
held on Wednesday 13 January 1993, at 10 a.m., at the Peace Palace,
President Sir Robert Jennings presiding
in the case concerning Maritime Delimitation in the Area between
Greenland and Jan Mayen
(Denmark v. Norway)

VERBATIM RECORD

ANNEE 1993
Audience publique
tenue le mercredi 13 janvier 1993, à 10 heures, au Palais de la Paix,
sous la présidence de sir Robert Jennings, Président
en l'affaire de la Délimitation maritime dans la région
située entre le Groenland et Jan Mayen
(Danemark c. Norvège)

COMPTE RENDU

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Present:
President Sir Robert Jennings
Vice-President Oda
Judges Ago
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Ajibola
Judge ad hoc Fischer
Registrar Valencia-Ospina

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Présents:
Sir Robert Jennings, Président
M. Oda, Vice-Président
MM. Ago
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Ajibola, juges
M. Fischer, juge ad hoc
M. Valencia-Ospina, Greffier

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The Government of Denmark is represented by:
Mr. Tyge Lehmann, Ambassador, Legal Adviser, Ministry of Foreign
Affairs,
Mr. John Bernhard, Ambassador, Ministry of Foreign Affairs,
as Agents;
Mr. Per Magid, Attorney,
as Agent and Advocate;
Dr. Eduardo Jiménez de Aréchaga, Professor of International Law, Law
School, Catholic University of Uruguay
Mr. Derek W. Bowett, C.B.E, Q.C., F.B.A., Emeritus Whewell Professor
of International Law in the University of Cambridge,
as Counsel and Advocates;
Mr. Finn Lynge, Expert-Consultant for Greenland Affairs, Ministry of
Foreign Affairs,
Ms. Kirsten Trolle, Expert-Consultant, Greenland Home Rule
Authority,
Mr. Milan Thamsborg, Hydrographic Expert,
as Counsel and Experts;
Mr. Jakob Høyrup, Head of Section, Ministry of Foreign Affairs,
Ms. Aase Adamsen, Head of Section, Ministry of Foreign Affairs,
Mr. Frede Madsen, State Geodesist, Danish National Survey and
Cadastre,
Mr. Ditlev Schwanenflügel, Assistant Attorney,
Mr. Olaf Koktvedgaard, Assistant Attorney,
as Advisers, and
Ms. Jeanett Probst Osborn, Ministry of Foreign Affairs,
Ms. Birgit Skov, Ministry of Foreign Affairs,
as Secretaries.
The Government of Norway is represented by :
Mr. Bjørn Haug, Solicitor General,
Mr. Per Tresselt, Consul General, Berlin,
as Agents and Counsel;
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Le Gouvernement du Danemark est représenté par :
M. Tyge Lehmann, ambassadeur, conseiller juridique, ministère des
affaires étrangères,
M. John Bernhard, ambassadeur, ministère des affaires étrangères,
comme agents;
M. Per Magid, avocat,
comme agent et avocat;
M. Eduardo Jiménez de Aréchaga, professeur de droit international à
la faculté de droit de l'Université catholique de l'Uruguay,
M. Derek W. Bowett, C.B.E., Q.C., F.B.A., professeur émérite de
droit international à l'Université de Cambridge (chaire Whewell),
comme conseils et avocats;
M. Finn Lynge, consultant spécialisé pour les affaires du Groenland,
ministère des affaires étrangères,
Mme Kirsten Trolle, consultant spécialisé, autorité territoriale
du Groenland,
M. Milan Thamsborg, expert hydrographique,
comme conseils et experts;
M. Jakob Høyrup, chef de section, ministère des affaires étrangères,
Mme Aase Adamsen, chef de section, ministère des affaires étrangères,
M. Frede Madsen, expert en géodésie de l'Etat, service topographique
et cadastral danois,
M. Ditlev Schwanenflügel, avocat auxiliaire,
M. Olaf Koktvedgaard, avocat auxiliaire,
comme conseillers, et
Mme Jeanett Probst Osborn, ministère des affaires étrangères,
Mme Birgit Skov, ministère des affaires étrangères,
comme secrétaires.
Le Gouvernement de la Norvège est représenté par :
M. Bjørn Haug, procureur général,
M. Per Tresselt, consul général, Berlin,
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comme agents et conseils;
Mr. Ian Brownlie, Q.C., D.C.L., F.B.A., Chichele Professor of Public
International Law, University of Oxford; Fellow of All Souls
College, Oxford,
Mr. Keith Highet, Visiting Professor of International Law at The
Fletcher School of Law and Diplomacy and Member of the Bars of
New York and the District of Columbia,
Mr. Prosper Weil, Professor Emeritus at the Université de droit,
d'économie et de sciences sociales de Paris,
as Counsel and Advocates;
Mr. Morten Ruud, Director General, Polar Division, Ministry of
Justice,
Mr. Peter Gullestad, Director General, Fisheries Directorate,
Commander P. B. Beazley, O.B.E., F.R.I.C.S., R.N. (Ret'd),
as Advisers;
Ms. Kristine Ryssdal, Assistant Solicitor General,
Mr. Rolf Einar Fife, First Secretary, Permanent Mission to the
United Nations, New York,
as Counsellors;
Ms. Nina Lund, Junior Executive Officer, Ministry of Foreign Affairs
Ms. Juliette Bernard, Clerk, Ministry of Foreign Affairs,
Ms. Alicia Herrera, The Hague,
as Technical Staff.
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M. Ian Brownlie, Q.C., D.C.L., F.B.A., professeur de droit
international public à l'Université d'Oxford, titulaire de la
chaire Chichele; Fellow de l'All Souls College d'Oxford,
M. Keith Highet, professeur invité de droit international à la
Fletcher School of Law and Diplomacy et membre des barreaux de
New York et du District de Columbia,
M. Prosper Weil, professeur émérite à l'Université de droit,
d'économie et de sciences sociales de Paris,
comme conseils et avocats;
M. Morten Ruud, directeur général de la division des questions
polaires au ministère de la justice,
M. Peter Gullestad, directeur général de la direction des pêcheries,
Capitaine de frégate P. B. Beazley, O.B.E., F.R.I.C.S., R.N. (en
retraite),
Mme Kristine Ryssdal, procureur général adjoint,
M. Rolf Einar Fife, premier secrétaire à la mission permanente de la
Norvège auprès de l'Organisation des Nations Unies à New York,
comme conseillers;
Mme Nina Lund, fonctionnaire administratif au ministère des affaires
étrangères,
Mme Juliette Bernard, agent administratif au ministère des affaires
étrangères,
Mme Alicia Herrera, La Haye,
comme personnel technique.
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The PRESIDENT: This morning we continue the Danish presentation with Mr. Per Magid.
The Conduct of Denmark
Mr. MAGID: Mr. President, and Members of the Court, I have the honour to address you,
Sir and this distinguished Court. I shall, with the Court's permission consider the conduct of
Denmark and the legal effects which Norway sees as following from the Danish conduct.
Norway argues that, by reason of Denmark's own conduct, a medium line boundary must be
recognized as the boundary required by law. This conduct, it is alleged, constitutes a recognition of,
or acquiescence in, such a boundary; or even acts as an estoppel against Denmark, precluding
Denmark from arguing for a different boundary than the median line before this Court.
The conduct in question is mainly Denmark's own, domestic legislation. Before I turn to
examine that legislation in more detail, I would like to make a few observations of a general
character.
First, as the Court has emphasized in the Anglo-Norwegian Fisheries case,
"The delimitation of sea areas has always an international aspect; it cannot be
dependent merely upon the will of the coastal State as expressed in its municipal law." (I.C.J.
Reports 1951, p. 132.)
Thus, whatever Danish law provided - or Norwegian law for that matter - it could not be
conclusive on the question now before this Court. This Court applies international law, not Danish
law.
The correctness of this rather elementary proposition is not altered by the fact that two
qualifications might have to be made to it. These are that, exceptionally, the municipal legislation of
the two States might reflect their agreement on where an equitable boundary should lie; and so their
conduct would provide one of the indicia the Court might use in finding an equitable boundary, as in
the 1982 Tunisia/Libya case. Or, even more exceptionally, a situation might exist in which the
legislation of one State created a true estoppel on which the other State could rely. It has never
happened yet, at least with regard to a maritime boundary, but it is a theoretical possibility.
My second preliminary observation is the following. Legislation tends to be general in
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character. As this Court has recognized many times, each maritime boundary case is a unicum
requiring a delimitation which is equitable in the light of all the relevant factors of the specific case.
General rules do not provide a solution divorced from the circumstances of a particular case. For
this reason alone, one must be very wary of assuming that general legislative enactments will ever
provide the equitable solution in a particular case.
My third preliminary observation is that domestic legislation often lags behind the evolution
of international law. This may be because States prefer to see the evolution of an emerging rule
completed, before they change their law. Or it may simply be because their parliaments are under
such a heavy work-load that other matters, in particular of a domestic nature, are given priority.
But, for whatever reason, the fact is that municipal legislation frequently reflects the international
law rule of a previous era.
For example, as late as 1990, some eight years after the 1982 Convention was adopted, there
were still ten States claiming only a 3-mile territorial sea. Even more relevant for our case, some 34
States drawn from every continent, claimed a continental shelf on the basis of the 1958 Geneva
formula - out to 200 meters or to the depth of exploitability (Limits in the Seas, National Claim to
Jurisdiction, No. 36, 6th Ed.). Many of these States, like Denmark, had modelled their legislation on
the 1958 Geneva Convention, and so included not only the definition of the shelf as in Article 1 but
also a boundary provision modelled on Article 6 of the 1958 Convention.
But could it seriously be argued that this Court, if faced today with a delimitation dispute
involving one of those States, would apply Article 1 of the 1958 Convention regarding the outer
limits of the shelf; or Article 6 regarding delimitation, simply because that particular State's
legislation had not yet been updated? I find it inconceivable that it would. The Court would, I
submit, apply the contemporary law as the Court itself has expounded it. And not simply because a
State's entitlement to a shelf exists ipso jure and does not depend on its own proclamation or
legislation, but above all because domestic legislation does not dictate international law, or resolve
boundaries disputes - except where an agreement or an estoppel exist.
Mr President, with those preliminary remarks I can now turn to the specific Danish conduct
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on which Norway relies.
1. The Danish Royal Decree of 7 June 1963 concerning the exercise
of Danish sovereignty over the continental shelf
This Decree was clearly intended to implement the 1958 Geneva Convention. For the reasons
I have already given, it is irrelevant to the task of delimitation now being undertaken by this Court,
nearly 30 years later. But even if Norway was justified in invoking this Decree, the fact is that
Norway misconstrues its effects. The only point Norway makes is that Article 2, paragraph 2, of the
Decree provides for the application of Article 6 of the 1958 Convention in relation to boundaries,
but does so in terms which do not expressly include a reference to "special circumstances". And on
that basis Norway would have the Court deduce that Denmark excluded the possibility that, in
relation to Greenland and Jan Mayen, "special circumstances" might exist to justify a boundary other
than the median line. Therefore, Norway argues, the median line must be the boundary.
There are so many reasons why this reasoning is wrong that I fear I shall weary the Court in
going through them. So I will try to be brief.
First, the 1963 Decree was general law enacting the 1958 Convention. It did not deal
specifically with Jan Mayen, no more than did the 1958 Convention, and no specific commitment as
regards Jan Mayen can be deduced from it.
Second, and this is important, the Danish Prime Minister, in submitting the question of
ratification of the 1958 Geneva Convention for the Danish Parliament, had expressly referred to
"special circumstances" (Reply, Ann. 86, p. 214).
Third, Article 2, paragraph 2, of the Decree stated that boundaries shall be determined "in
accordance with Article 6 of the Convention..." That means all of it. So, if Article 6 includes a
reference to "special circumstances", that reference is automatically included by Article 2,
paragraph 2.
Fourth, the reason why Article 2, paragraph 2, said "in the absence of special agreement, the
boundary is the median line...." is a purely practical one. This is simply that, in the view of the
Danish Government, in practice, any situation of "special circumstances" would have to be
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accommodated by way of agreement. A departure from the median line, where special
circumstances existed, could scarcely be promulgated or decreed unilaterally: it would have to be
agreed, so in fact the real alternatives were median line or agreement.
This is perhaps borne out by the role of a court. As the Chamber of this Court rightly pointed
out in the Delimitation of the Maritime Boundary in the Gulf of Maine Area case: "Where,
however, such agreement cannot be achieved, delimitation should be effected by recourse to a third
party possessing the necessary competence." (I.C.J. Reports 1984, p. 299, para. 112 (1))
If agreement and judicial settlement are the alternatives, a situation of "special circumstances"
has to be accommodated in one or other of those alternatives. It makes no more sense to see "special
circumstances" as separate from agreement, than it makes to see "special circumstances" as separate
from judicial settlement. To put the point in another way, it is in practice inconceivable that
"special circumstances" could be accommodated by unilateral act: they would always require either
an agreement, or reference to a third party.
My submission is, Mr. President, that there is no possible basis for arguing that, by virtue of
the 1963 Decree, Denmark committed itself to a median line boundary as between Greenland and
Jan Mayen.
I will now turn to the next piece of legislation on which Norway relies.
2. The Danish Act of 9 June 1971 on the continental shelf
This is an awkward piece of legislation for Norway, because it does not fit the Norwegian
thesis.
The primary purpose of this Act was to vest the resources of the Danish shelf in the Danish
State. The reason why the legislation is awkward for Norway is that, in presenting the Act to the
Parliament - in form of a Bill - the Danish Government referred expressly to "special circumstances".
The Government's comments on the Section 1 - publicly available - said expressly,
"In those cases where the Danish continental shelf borders portions of the shelf
appertaining to other States, the delimitation must - in accordance with the Convention -
primarily be sought effected through agreement between the neighbouring States. In the
absence of agreement, the delimitation must be effected in accordance with the principle of
equidistance unless special circumstances dictate an alternate line of delimitation." (Reply,
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Annex 88.)
I repeat the last phrase: "unless special circumstances dictate an alternate line of delimitation".
This is the phrase which is awkward for Norway, because it confirms expressly that Denmark
was not setting aside "special circumstances". The phrase contradicts the whole of Norway's
argument based on the 1963 Decree.
The Norwegian Rejoinder (paras. 291-294) is extraordinary. In essence, Norway says that,
since only Section 3 of the 1963 Decree was repealed by the 1971 Act, Norway can ignore the rest
of the Act. The poverty of that response is so obvious that I need not detain the Court with any
lengthy refutation. It must be clear that Denmark's express reference to "special circumstances"
completely destroys any argument to the effect that Norway believed Denmark had renounced all
reliance on "special circumstances", and that Norway was entitled to rely on Denmark's clear and
unambiguous declaration to that effect. The argument is nonsensical if Denmark has said exactly the
opposite.
Let me now turn to the third piece of Danish legislation on which Norway relies.
3. The Danish Act of 17 December 1976 on the fishing territory of
the Kingdom of Denmark
Norway claims that the 1976 Act on the Fishing Territory of Denmark does not authorize the
Danish Government to demand more than a median line delimitation of the fishing zones in the
waters between East Greenland and Jan Mayen.
The Court will recall the background to the enactment of the 1976 Act. A number of
countries bordering on the Danish, Greenland and Faroese waters had extended their fishery zones to
200 nautical miles. If the waters around Greenland and the Faroese Islands were left as the only
important fishing grounds in the North Atlantic Ocean, open to all countries, it would have been
extremely harmful to the populations of Greenland and the Faroese Islands, populations which are
crucially dependent on the fishing industry (Memorial, paras. 36-38). So they had to be protected.
Section 1, paragraph 2, of the Act contains the following delimitation rule:
"Failing any agreement to the contrary, the delimitation of the fishing territory relative
to foreign States whose coasts are situated at a distance of less than 400 nautical miles
opposite the coasts of the Kingdom of Denmark ... shall be ... the median line."
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Denmark and Norway are in agreement that the language of this provision corresponds to Article 2,
paragraph 2, of the 1963 Royal Decree on the Continental Shelf (Counter-Memorial, para. 238).
It is, therefore, not surprising that Norway proposes an interpretation of the delimitation rule
in the 1976 Act similar to Norway's interpretation of the 1963 Decree and thus similarly mistaken.
In the written presentation of the Bill, the Prime Minister explained that the extension of
Denmark's fishing limits in a number of cases gives rise to problems of delimitation in relation to
other countries. He then stated:
"According to the general rules of international law, delimitation must be according to
the median line principle, as it is in respect of the continental shelf, over which as you know
Denmark already has sovereign rights according to the rule in force." (Rejoinder, Ann. 88,
p. 229.)
This written statement by the Prime Minister was given only a few years after the Court's Judgment
in the North Sea Continental Shelf cases, and there is no reason to believe that the Prime Minister,
by these words, was attempting to change the delimitation rules of international law or to waive
Denmark's rights to benefit from these rules. The Prime Minister's written statement did not purport
to be a detailed description of the delimitation rules of international law.
The explicit reference in the text of the delimitation provision "[f]ailing any agreement to the
contrary" shows that, as in the 1963 Decree, special circumstances may play a role in the
delimitation as part of an agreement.
The wording of the provision setting forth a median line delimitation vis-à-vis foreign States in
the absence of special agreement is based on the assumption that the opposite coast under
international law generates full maritime zones.
This understanding is clearly evidenced by the reply given on 9 December 1976 by the
Minister for Greenland to the Parliamentary Commission established to hear the Bill. The Minister
was asked by the Committee why the Government did not intend to enact an immediate extension of
the fishing territory around the whole of Greenland. The Court will find his answer in Annex 89 to
the Reply. The Minister said inter alia:
"Extending the limit vis-à-vis Iceland northward, a delimitation problem vis-à-vis the
Norwegian island of Jan Mayen will arise. According to information available Norway has no
intention, at this point in time, to extend the fishery limit around Jan Mayen, and since it is not
quite clear to what extent an island with the characteristics of Jan Mayen (the island is
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uninhabited, except for a few scientists and meteorologists) may under international law
generate maritime zones, it would be inexpedient to raise the question of delimitation now."
Is it likely that Denmark, knowing that a delimitation issue existed towards Jan Mayen, would pass
a legislation which precluded Denmark from claiming a full 200-nautical-mile zone? It is not.
It is evident that the Bill as it was worded would authorize the Danish Government to extend
the fishing zone off the coast of East Greenland to a full 200-nautical-mile zone provided this was in
accordance with international law. In fact the reason for the Greenland Minister's hesitation is that
he was not sure Jan Mayen would be entitled to any maritime zone, beyond the territorial sea.
Norway cannot succeed in conveying the impression of a clandestine Danish operation aimed
at misleading the world, and in particular Norway, by using language in the Act which did not
convey the true nature of the Danish goals. Norway refers to "private" consultations between the
Minister for Greenland and the Parliamentary Committee showing preoccupation with "the timing
and tactical considerations" for the establishment of fishing zones around Greenland (Rejoinder,
paras. 307-308).
It is correct that the consultation between the Minister for Greenland and the Parliamentary
Committee was not public. That would be normal practice in most countries. But the relevant
content of the information from the Minister to the Committee was certainly not privileged. Thus, it
was a well-known fact - known also to Norway - that much uncertainty existed as to what extent an
uninhabited island like Jan Mayen under international law may generate broad maritime zones. The
Court will recall that Iceland in July 1975, nearly one and a half years earlier, had issued regulations
whereby Jan Mayen would be given no effect on Iceland's 200-mile maritime zone (Memorial,
Ann. 14, para. 73).
From a statement made in the Norwegian Parliament in June 1980 by the Norwegian Foreign
Minister, Knut Frydenlund, we know Iceland's position in the initial delimitation negotiations.
Iceland argued that Jan Mayen had no right to maritime zones beyond the territorial sea. And
according to the Norwegian Foreign Minister this was a view shared by other countries
(Counter-Memorial, Ann. 11, p.52).
So what could make Norway believe that Denmark had waived its right to claim a full
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200-nautical-mile zone vis-à-vis Jan Mayen? The answer is nothing.
In the comments to Section 1, paragraph 2, of the Bill it is explained that upon extension to
200 nautical miles the need arises for agreements on delimitation inter alia around Greenland. Since
agreement is mentioned specifically this is as an indication that a median line delimitation would not
apply in all situations.
The proposed Bill did not exclude a 200-nautical-mile delimitation vis-à-vis a third State.
This was also understood by a Member of the Parliament from the Faroese Islands. The said
Member pointed out that the distance between Rockall and the Faroese Islands was less than
400 nautical miles and requested that when a decree was issued the Faroese fishing limits should
then be given full extent. His suggestion was not to change the wording of the Bill. That would not
have been necessary. Consequently his intervention did not call for a reply and the Prime Minister
did not comment on the intervention (Rejoinder, Ann. 88, p. 234).
I submit that the extension of the fishery limit off the east coast of Greenland was within the
scope of the enabling act. The enabling act is to be construed in the light of international law.
My conclusion is, Mr. President, that the 1976 Act does not support Norway's argument in
any way.
I turn now to further legislative acts by Denmark on which Norway seeks to rely.
4. The Danish Executive Orders of 14 May 1980 and 31 August 1981 on the fishing territory in
the waters surrounding Greenland
Norway has four themes which are repeated in connection with these Orders.
First, it is alleged that the establishment of the 200-nautical-mile fishery zone east of
Greenland vis-à-vis Jan Mayen is in clear contravention of the enabling instrument and beyond the
authority granted under the 1976 Fishing Territory Act (Counter-Memorial, paras. 359-360;
Rejoinder, paras. 313, 316, 319-320).
I have dealt with this issue earlier, and shall not repeat what I said. It is evident that the
Danish Government under national legislation had the authority to issue the 1980 Order as well as
the 1981 Order.
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Mr. President, permit me to make one additional observation. I believe that it is generally
recognized that a State is in a better position to interpret its own laws than other States. If the
Danish Government had felt that it lacked authority to issue the 1980 and the 1981 Executive Orders
it may safely be assumed that the Danish Government would have obtained authority by having the
enabling Act amended.
Second, it is alleged, by Norway, that Denmark was so involved in its median line policy that
the 1980 Order respected the median line delimitation in the maritime areas between Greenland and
Jan Mayen and that no immediate challenge of Norway's claim to exercise jurisdiction up to the
median line was made (Counter-Memorial, paras. 243-244, 316, 318).
It appears to have been overlooked by Norway that the 1980 Order actually did establish a
200-nautical-mile zone off the East Coast of Greenland vis-à-vis Jan Mayen. Neither the 1980
Order nor the Danish Note of 9 June 1980 could leave any doubt. Denmark claimed a full
200-nautical-mile zone vis-à-vis Jan Mayen. To say that there was no immediate challenge of
Norway's claim to exercise jurisdiction up to the median line is simply mistaken.
Third, it is argued that Denmark's initial decision not to exercise jurisdiction beyond the
median line evidences that the median line actually was in place (Counter-Memorial, para. 536) and
shows "Denmark's continued strong support of the median line" (Rejoinder, paras. 316 and 362). I
have to say that I find it extraordinary that a measure of restraint of this kind should be treated as
something prejudicial to the interests of Denmark. It is commonly found, in international disputes,
that States will attempt to exercise restraint pending a resolution of their dispute. It has never, to my
knowledge, been suggested that their legal positions are thereby prejudiced. For example, the Court
will well recall that in the Libya/Malta dispute, Libya had exercised a certain restraint as regard to
the petroleum concessions granted by Libya in an area claimed by Malta. Libya had instructed the
oil companies concerned not to work in the particular areas which were subject to Maltese claims
(Libyan Memorial, Vol. 1, p. 62). There is nothing in the Court's subsequent Judgment which
suggests, in any way, that Libya was thereby prejudiced in its claim against Malta. And, to its
credit, Malta did not seek to take advantage of this restraint by Libya. One can find similar
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examples in recent cases. In the Gulf of Maine case, the same problem of overlapping claims
occurred and, pending a resolution of the dispute, both the United States and Canada undertook to
exercise measures of restraint as regards both fishing and mineral exploration. There is no
suggestion in the Judgment by the Chamber of the Court that either the United States or Canada was
to be regarded as prejudiced by such restraint. To cite an even more recent example, in the dispute
between France and Canada over the maritime delimitation affecting the French Islands of St. Pierre
et Miquelon, the Canadian Government exercised certain restraints as regards fishing in the disputed
area, prior to the submission of the dispute to arbitration. In the Award of the Arbitral Tribunal of
10 June 1992, there is no suggestion whatever that the legal position of Canada was prejudiced by
the adoption of these measures of restraint.
Mr. President, I need scarcely say that if the Norwegian argument was to receive any support
in this Court, a very serious blow would be dealt to the cause of peaceful settlement of disputes.
States would be afraid to adopt measures of restraint, for fear that their legal position might be
weakened. That would be extremely damaging for international relations generally.
Finally, Norway goes to the extent of alleging that Denmark, in 1980, had an interest in
concealing its opinion as to the delimitation between Greenland and Jan Mayen because it could have
undesirable effects in relation to other outstanding delimitations (Rejoinder, paras. 316-317).
Mr. President, this calls for one or two comments. Denmark made no secret of its point of
view concerning Jan Mayen. Denmark made it specifically known to Norway as early as
March 1979. And since Norway at the time knew that Iceland, and probably a number of other
countries, would question Jan Mayen's entitlement to the new broad maritime zones it ought not to
have come as a surprise.
And then Norway states, without one jot of evidence, that the exercise of Danish jurisdiction
in 1980, beyond the median line between Greenland and Jan Mayen, could have had "undesirable
effects in relation to other outstanding delimitations" (Rejoinder, para. 317). Norway does not offer
one example to support this allegation. For good reason. There are none. There was no difference
in Denmark's position on delimitation issues in 1980 when the restraining clause was adopted and in
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1981 when it was deleted.
5. The Danish position during the negotiations at the Third Law of
the Sea Conference
The Norwegian Government seeks to use the position of Denmark during the Third Law of the
Sea Conference as a basis for arguing that Denmark had, at the Conference, committed itself to an
exclusive median line approach. It must be obvious that this argument is unfounded. As is
well-known, Denmark certainly formed part of that group of States which, as regards delimitation,
sought to persuade the Conference to adopt the equidistance - special circumstances rule. But,
Mr. President, as everyone knows, that was rejected by the Conference, and the formula adopted by
the Conference for both the continental shelf and the exclusive economic zone did not adopt that
position. Having failed at the Conference, it would be really quite extraordinary if Denmark were
now held in this Court to be committed to a legal rule on delimitation which was rejected by the
Conference as a rule of law.
In any event, Mr. President, it is clear from the records of the Conference - including even the
statements which Norway itself cites in its written pleadings (Counter-Memorial, para. 351;
Rejoinder, para. 326) that the formula for delimitation supported by Denmark was not equidistance
per se. It was the formula of Article 6 of the 1958 Convention, that is to say, equidistance combined
with special circumstances.
Second, there is a great deal of confusion in the Norwegian pleadings over the difference
between entitlement and delimitation. The Norwegian Government invokes (Rejoinder, para. 327) a
statement by the Danish delegate affirming the entitlement to a maritime zone of "oceanic islands".
Denmark sees no reason to withdraw from that statement, or to qualify it in any way. Denmark does
not dispute that an island has entitlement. The question before the Court is not one of entitlement per
se, but rather of the appropriate delimitation in relation to a particular island. This is an entirely
different matter.
And the delimitation rule suggested by the Danish delegate at the Conference was in
accordance with the Danish position on the rule in Article 6 of the 1958 Convention.
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I would finally comment on Norway's attempt to derive support from what was paragraph 3 of
the Negotiating Group's proposal to the Conference (NG7/2, dated 20 April 1978, Rejoinder,
para. 328). Now that full paragraph of the proposal envisaged the use of the median line as a
measure of restraint pending agreement for settlement of a boundary. In other words, the use of a
median line was a temporary measure in the interest of restraint, and without prejudice to the
eventual boundary to be agreed, or to be determined by third party settlement. Everything that I
have said previously about the non-prejudicial character of restraint applies equally to this third
paragraph of the proposal by the Negotiating Group. It cannot possibly prejudice Denmark's
position.
There is finally the note of complaint which creeps into the Norwegian pleadings (Rejoinder,
paras. 330-331). Norway appears to be complaining that during the Conference, when Denmark
was supporting the equidistance/special circumstances formula, Denmark did not intimate to Norway
that the median line solution would not apply to Jan Mayen. Mr. President, in these large
multilateral conferences, States are not encouraged to raise specific issues. The Conference is
concerned to adopt general rules and to avoid involvement in particular disputes. Moreover, as
Norway well knows, Norway was told specifically in March of 1979 by Denmark, that the median
line solution for Jan Mayen was unacceptable to Denmark.
I will now turn to
6. The contacts between the Foreign Ministers of Denmark and Norway
on the Danish maritime claims
Norway complains that when the Danish Minister for Foreign Affairs in March, July, and
August 1979 told his Norwegian counterpart that a median line delimitation between Jan Mayen and
Greenland would not be acceptable to Denmark the Danish Foreign Minister did not use the term
"special circumstances" (Rejoinder, paras. 330-331).
Mr President, I submit that the complaint is scarcely justified. It is not appropriate for one
Foreign Minister to lecture another and, after all, the rather special circumstances in this case - such
as the minimal length of the coast of Jan Mayen compared to the long coast of Greenland, or the
absence of any permanent population on Jan Mayen compared to Greenland - these salient
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differences were apparent to everyone. And it scarcely needed the Danish Foreign Minister to point
them out to his Norwegian counterpart.
7. Legal effects of the Danish conduct
Mr. President, having now surveyed these various pieces of Danish conduct on which Norway
seeks to rely, I can now turn to the legal conclusions which Norway attempts to derive from this
conduct.
The first conclusion is that, by virtue of this conduct, Denmark has "recognized", or
"approved", or "adopted" a median line boundary between Greenland and Jan Mayen (Rejoinder,
paras. 343, 350). The difficulty with this Norwegian thesis is that it totally ignores the facts. The
facts are, first, that none of the statements or other conduct on which Norway relies refer specifically
to the boundary between Greenland and Jan Mayen. The statements, whether in legislation or in
statements made before the Law of the Sea Conference, are of a general character and cannot
possibly be interpreted to apply specifically to this particular boundary. Second, as I have already
explained, all of the statements by Denmark saw the median line solution not in isolation but as part
of a more comprehensive formula which linked the median line with special circumstances. That
formula, which clearly envisaged the possibility that, in special circumstances, the median line
would not be used, was the formula contained in the 1958 Convention and therefore the formula to
which Denmark had adhered since the early years of the 1960s.
When I read the Norwegian pleadings I was struck by the fact that, in final analysis, the whole
Norwegian theory of recognition derives from the 1963 Decree of Denmark. It is on that Decree that
the whole Norwegian argument essentially depends. But, Mr President, that Decree not only did not
refer to Jan Mayen; and not only did not exclude "special circumstances" as a reason for departing
from the median line, but it was a decree enacted by Denmark at a time when Denmark was fully
entitled to base its view of the law on the 1958 Geneva Convention.
But the law has changed! The law has developed and progressed since that time, both by
virtue of judicial and arbitral practice, State practice and the adoption of the 1982 Convention of the
Law of the Sea. We are now in the year 1993, some 30 years after the adoption of the 1963 Decree.
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Like international instruments, national acts are to be interpreted and applied within the framework
of the legal system prevailing at the time of interpretation.
Mr President, I turn now to the last of the grounds upon which Norway contends that
Denmark is bound to accept a median line delimitation: this is the argument of estoppel, and it is an
argument which is both audacious and completely unfounded. The Court has dealt with the principle
of estoppel in several of its cases: I need only mention the North Sea Continental Shelf cases, the
Temple of Preah Vihear case, and more recently the Elsi case. So there is no need for me to enter
into any detailed discussion of this concept. But the essentials of an estoppel are well recognized and
what I will do, to assist the Court, is to go through these essentials simply to demonstrate that there
is no possible basis upon which Norway can argue that an estoppel exists against Denmark.
The first essential of an estoppel is that the statement made must be clear and unambiguous.
In the Serbian Loans case the Permanent Court required a "clear and unequivocal representation"
(P.C.I.J., Series A, No. 20, p. 39). In the North Sea Continental Shelf cases the Court rejected the
argument that Germany was estopped from denying the applicability of the 1958 Treaty régime, the
Court finding that there was no "very definite, very consistent course of conduct"
(I.C.J. Reports 1969, p. 26, para. 28) on the part of Germany to support an allegation. Now in the
present case we simply have no statement by Denmark at all to the effect that the boundary, the
boundary required by law, between Greenland and Jan Mayen should be the median line boundary.
It is not simply that Denmark made no statement to that effect; Denmark made no such statement at
all! So the very first essential of an estoppel argument is missing in this case. The whole of the
Norwegian argument is based upon pure inference as to what the boundary in this particular case
might be, inferences based upon statements of a quite general principle. Now that will simply not
do. You cannot base an estoppel on pure inference. There must be a clear and unambiguous
statement, and we simply do not have such a statement in this case. A second and fundamental
requirement of any estoppel is that the party invoking the estoppel must be shown to have relied
upon that statement to its detriment. In short, Norway has to show not only that Norway relied upon
such a clear and unambiguous statement, but in addition that it did so to its prejudice or to its
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detriment. So the question is, in what respect has Norway suffered any detriment? The first
illustration of so-called "detriment" by Norway is given in paragraph 363 of Norway's Rejoinder. In
effect Norway argues that it would not have reached the agreement it did with Denmark in relation to
the boundaries between Norway and the Faroese Islands in 1979, had Norway believed that
Denmark would depart from the median line principle in relation to Jan Mayen.
The point made by Norway is simply contradicted by the facts. The agreement was entered
into on 15 June 1979, three months after the Danish Minister for Foreign Affairs advised his
Norwegian counterpart, in March of that year, that a median line delimitation between Jan Mayen
and Greenland would not be acceptable to Denmark. So Norway knew, when it accepted the Faroese
agreement, that Denmark would not accept a median line with Jan Mayen.
Now, the second example of so-called "prejudice" given by Norway in paragraph 364 of the
Rejoinder is the Norwegian Agreement with Iceland of 28 May 1980. In effect, Norway now
suggests that it would not have reached that Agreement with Iceland had it known that Denmark
would insist upon a departure from the median line principle in relation to Jan Mayen. This is entire
speculation and, frankly Mr. President, I do not believe a word of it. We know the background to
the 1980 and 1981 Agreements between Iceland and Norway. We know the outcome of the
conciliation process which let to the 1981 Agreement and at least, to judge from the conciliation
process, the issue of a boundary between Jan Mayen and Greenland played no part whatsoever in the
final result which was recommended by the conciliation commission. All the Agreement of 1981 did
was to embody the solution recommended by the conciliation commission.
The suggestion that Norway would not have entered into the Agreements with Iceland if it had
known the Danish position is contradicted, not only by the fact that the Danish Minister for Foreign
Affairs three times in 1979 had told his Norwegian counterpart that a median line delimitation
between Greenland and Jan Mayen would not be acceptable to Denmark, but also by the debates in
the Storting. During the debate in the Storting, which was held on 6 June 1980 the Norwegian
Foreign Minister, Knut Frydenlund, informed the Parliament that Denmark, with effect from 1 June
1980, had established a 200-nautical-mile fishing zone in the area between Greenland and
- 23 -
Jan Mayen, and that the Norwegian Government had lodged a reservation (Counter-Memorial,
Ann. 11, p. 55).
The conclusion must be, Mr. President, that Norway can show, and has shown, no possible
prejudice at all. And the reason for this is quite obvious. The reason is that Denmark had never
made any such statement upon which Norway could rely, and certainly Norway did not rely upon
any such statement to its detriment.
The Conduct of Norway
Bear Island
Mr. President, distinguished Members of the Court, I have dealt with the conduct of Denmark.
I have tried to demonstrate that the acts and actions of Denmark in relation to maritime delimitations
can not be invoked by Norway as binding Denmark to accept a median line boundary with
Jan Mayen. I shall now turn to the conduct of Norway. However, before I commence an
examination of the conduct of Norway, I would like to make one preliminary observation. While
Norway has attempted to employ the conduct of Denmark to demonstrate that Denmark has
approved a median line between Greenland and Jan Mayen, or is estopped from claiming an area
beyond a median line, we do not suggest that the conduct of Norway can be used to show Norway's
acquiescence in a Danish 200-nautical-mile zone off Greenland vis-à-vis Jan Mayen, or that
Norway's conduct leads to an estoppel. What we do suggest is that Norway's conduct clearly
demonstrates Norway's perception of an equitable solution in delimitation situations resembling the
present delimitation case.
The conditions for the maritime delimitation between Greenland and Jan Mayen are not
unique. In the same area, there are two other maritime delimitations having a bearing on the present
case. One is the delimitation by agreement between Iceland and Jan Mayen which my colleague,
Ambassador Lehmann, will deal with, the other is the delimitation undertaken unilaterally by
Norway vis-à-vis Bear Island, which I will now address.
I submit that the delimitation between the economic zone off the mainland of Norway and the
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maritime area around Svalbard constitutes an important precedent in this case. And with your
permission, Mr. President, I will try briefly to explain that this delimitation shows not only that,
according to Norway, an island with the characteristics of Bear Island should have no effect in the
delimitation of the maritime zone off the mainland of Norway, but also that this view apparently was
approved by a number of States parties to the Spitsbergen Treaty.
First, Bear Island, like Jan Mayen, is a barren, uninhabited island unable to sustain economic
life. With its 178 square kilometres, it is nearly half the size of Jan Mayen. Like Jan Mayen, it is
situated off a mainland cost, 215 nautical miles off the coast of Norway, while Jan Mayen is
250 nautical miles off the coast of Greenland. A glance at the map, distributed to the Court this
morning, displaying the northern coast of Norway, Bear Island and parts of Svalbard shows the
resemblance to the geography of the present case. The geographical and socio-economic similarities
between Jan Mayen and Bear Island have not been disputed by Norway.
Second, both cases constitute international delimitations. At this point Denmark and Norway
disagree. In the Counter-Memorial, Norway maintains that "no delimitation in international law has
been effected" (Counter-Memorial, para. 459) and in the Rejoinder even that no delimitation at all
has been considered or effected (Rejoinder, para. 635). Clearly this can not be right.
The Court will recall that while the Treaty of Spitsbergen of 1920 recognizes Norwegian
sovereignty over the Archipelago of Svalbard, including Bear Island, it was a quid pro quo that
nationals of all the Contracting Parties had an equal right to exploit the resources of the Archipelago
of Svalbard and its territorial waters. Under the Spitsbergen Treaty Norway is obliged to exercise
its sovereign rights in the interest of all the Contracting Parties (Reply, Ann. 79).
With the emergence of the new legal concepts of a continental shelf and, later, of a
200-nautical-mile zone, the question arose whether the Spitsbergen Treaty applied to the new
maritime zones. This issue remains to be resolved. No conference has been held and none of the
parties to the Treaty has asked the Court or any other tribunal for a legal decision. And of course,
Mr. President, the present case does not call upon the Court to consider and decide upon the correct
interpretation of the Spitsbergen Treaty. However, we ask, the Court to note two pertinent matters.
- 25 -
Firstly, that Norway and the other parties to the Spitsbergen Treaty disagree on the
interpretation of the Treaty. Secondly, and this is very important, Norway has tried to avoid
becoming engaged in an open dispute on this disagreement.
From at least 1970, the Norwegian Government knew that other parties to the Spitsbergen
Treaty did not agree with Norway's interpretation of the Treaty. Norway's position was and is that
the Spitsbergen Treaty does not confer any rights concerning the continental shelf outside the
territorial waters of Svalbard on the other contracting Parties to the Treaty. The Government of
Norway has later taken the same position in relation to the economic zone.
From a statement made by the Norwegian Foreign Minister in the Storting in May 1976, we
know that as early as 1970 the then USSR had advised Norway that the Spitsbergen Treaty applied
to the continental shelf around Svalbard. In 1974 the United States of America and Great Britain
reserved their rights in relation to the continental shelf under the Spitsbergen Treaty, and according
to the Norwegian Foreign Minister other western countries have made similar reservations (Danish
Annex 97). In a debate held in June 1976 in the Storting following the account given by the Minister
for Foreign Affairs, the Chairman for the Committee on Foreign Policy and Constitutional Matters
acknowledged that the Norwegian legal arguments in support of the limited interpretation of the
Spitsbergen Treaty have not been internationally accepted (Danish Annex 98). Thus, it is evident
that in 1976 - as in the past - the Svalbard issue was not a minor matter easily overlooked or
forgotten by Norway. On the contrary, it was an ever-present and sensitive problem for the
Norwegian Government and the Storting.
Over the years it has been the Norwegian Government's firm and declared policy to avoid
confrontations with other States on issues relating to Svalbard. This was also the case in
December 1976 when Norway established an economic zone in the waters off the Norwegian
mainland. This zone was not to impinge upon the continental shelf and the other broad maritime
zones appertaining to the Archipelago of Svalbard. If it did, Norway could expect confrontations not
only with the USSR and other East European countries, who had advised Norway that the
Spitsbergen Treaty also applied to the continental shelf of Svalbard, but also with the United States
- 26 -
of America, Great Britain and other western countries who had reserved their position on this issue.
The delimitation vis-à-vis Bear Island and the remaining parts of Svalbard had to be done in such a
manner that disputes with other parties to the Spitsbergen Treaty would be avoided.
The actual delimitation unilaterally effected by the Government of Norway demonstrates how
Norway perceived the effect of an uninhabited island in a maritime delimitation opposite a populated
mainland. Norway must have been confident that reducing the zone attaching to Bear Island, so as
to allow a full 200-nautical-mile zone to the Norwegian mainland was "non-controversial", and
unlikely to arouse opposition. To our knowledge this delimitation carried out in 1976 did not cause
other States Parties to the Spitsbergen Treaty to protest or to make reservations.
How Norway and the other countries in 1976 perceived the 200-nautical-mile zone off the
coast of the Norwegian mainland vis-à-vis Bear Island is further illustrated by the conduct of
Norway and other States in relation to the fishery protection zone around Svalbard established
shortly after. By Royal Decree of 3 June 1977 a 200-mile fishery protection zone in the maritime
areas around Svalbard was established. Contrary to the 200-nautical-mile economic zone in the
waters off the mainland of Norway the fishery protection zone was established on a
non-discriminatory basis. The fishery protection zone was restricted by the outer limits of the
economic zone off the Norwegian mainland. Mr. President, do we know why the Government of
Norway opted for a fishery protection zone around Svalbard and not an economic zone as Norway
claims to be entitled to? We do. On 6 June 1977 the Norwegian Minister for Foreign Affairs, in the
Storting, gave, as one of the two reasons for not establishing an exclusive zone around Svalbard, the
following explanation:
"that the immediate establishment of a zone with exclusive rights for Norwegian fishermen
could therefore have led to a confrontation with other Contracting Parties. This would hardly
be in the interest of Norway." (Reply, Ann. 82.)
Against this background, one can hardly believe that Norway did not consider the delimitation
between the zones of Svalbard and the zones of mainland Norway when the 200-nautical-mile
exclusive economic zone off mainland Norway was established, as a problem of international,
maritime delimitation. It was not a purely internal, administrative matter.
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The reaction from the other Contracting States evidences the importance attached to the
delimitation between the two zones. While the establishment of the 200-nautical-mile exclusive
economic zone off the mainland of Norway apparently did not create any adverse reaction from the
other Contracting States, this can hardly be said about the less radical, non-discriminatory, fishing
protection zone around Svalbard.
In a foreign policy debate of the Storting held on 27 November 1978 - nearly one and a half
years after the establishment of the fishery protection zone, Minister Jens Evensen gave an account
of the Contracting States' reaction to the Norwegian Government's decision. Minister Jens Evensen
stated:
"The government has previously given an account of its choice, as point of departure, of
the principle of a non-discriminatory fishery protection zone as opposed to the introduction of
a full economic zone, an action which per se the government had legal authority to take. Still,
we did not avert reactions from other countries. The reactions were based on Svalbard's
special status under the Svalbard Treaty. The western countries acknowledged the access to
and the need for Norwegian regulatory measures, but reserved their position in principle,
invoking the Svalbard Treaty.
The reactions from the Soviet Union and a few other East European countries were
stronger. It is probably correct to say that they protested formally against the establishment of
the zone and contested the foundation in international law to take such a step." (Danish
Annex 99.)
The reaction from other States to the establishment of a fishery protection zone makes it
impossible to accept the Norwegian position that by the delimitation between the 200-nautical-mile
zone and the fishery protection zone "no delimitation in international law has been effected".
As mentioned before, to our knowledge none of the States Parties to the Spitsbergen Treaty
protested or made reservation in connection with the full exclusive economic zone off the mainland
of Norway, thereby acknowledging that Bear Island and the remaining parts of Svalbard were not
entitled to impinge upon the 200-nautical-mile zone off the mainland of Norway. However, when it
came to the fishery protection zone, protests and reservations were made.
Mr. President, in conclusion, when Norway established the broad maritime zones off the
mainland of Norway, the Norwegian Government was painfully aware that their effect on the
maritime zones around Svalbard was an issue giving rise to dispute. Norway did not want a
confrontation with the other Contracting States. Norway had therefore to implement the
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200-nautical-mile zone off the coast of mainland Norway in such a manner that States claiming that
the Spitsbergen Treaty applies to the broad maritime zones of Svalbard had no reason to protest or
make reservations to Norway. Norway did not believe that Bear Island was entitled to impinge upon
the Norwegian zone. And rightly so. This delimitation was accepted by the other States concerned.
Mr. President, I believe that this delimitation unilaterally carried out by Norway, and the
international society's acceptance of it, clearly shows that equitable principles justified a full
Norwegian 200-nautical-mile zone vis-à-vis Bear Island. It must follow that equitable principles
equally justify a full 200-nautical-mile zone for Greenland vis-à-vis Jan Mayen.
Mr. President, distinguished Members of the Court I thank you for your attention and your
patience and, after me, Mr. President, I will leave the floor to Mr. Lehmann who will address the
Norwegian conduct as evidenced by the Agreement between Norway and Iceland on the delimitation
of the maritime zones between Jan Mayen and Iceland.
The PRESIDENT: Thank you very much, Mr. Magid.
Mr. Lehmann, I think perhaps we can take our break now and come back afterwards. Thank
you very much.
The Court adjourned from 11.15 to 11.30 a.m.
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The PRESIDENT: Mr. Lehmann, please.
Mr. LEHMANN: Mr. President, distinguished Members of the Court,
1. We are now moving closer to the actual confrontation between Jan Mayen and Greenland
and to the central issue of the method of drawing the line in the waters between Greenland and
Jan Mayen in such a way that an equitable solution is reached. Professor Bowett will deal with that
issue of the method of delimitation in our next intervention.
Before that I shall follow-up upon the intervention just made by my colleague, Per Magid, and
comment upon another and most instructive precedent which has a most direct bearing on the present
case, namely the delimitation already effected between Norway and Iceland in the waters between
Jan Mayen and Iceland. Through the conclusion of the two Agreements with Iceland of 1980 and
1981 dealing with fisheries and continental shelf questions, respectively (Memorial, Anns. 16 and
28), Norway has already shown what delimitation method it would be reasonable to adopt for the
island of Jan Mayen vis-à-vis a territory with such characteristics as Iceland. Though Iceland and
Greenland are of course not of the same size, they are both populated territories overwhelmingly
dependent on fisheries, as recognized for a long time by the international community, first in
connection with the adoption at the first United Nations Conference on the Law of the Sea in 1958,
of Resolution No. VI bearing the title "Special Situations relating to Coastal Fisheries"; and later, as
we all know, in Article 71 of the 1982 United Nations Convention on the Law of the Sea (Memorial,
para. 305; Reply, para. 325).
It was stated in the Libya/Malta case that where there is agreement there is for all practical
purposes also equity (paragraph 46 of the Judgment). No doubt this dictum holds true for the two
agreements between Iceland and Norway. These agreements must be seen as reflecting an equitable
result striking a fair boundary in the waters between the two territories. In the words of the
Conciliation Commission established to prepare recommendations with regard to the dividing line for
the shelf area between Iceland and Jan Mayen its function was "to make recommendations to the two
Governments which in the unanimous opinion of the Commission will lead to acceptable and
equitable solutions of the problems involved" (Report of the Conciliation Commission, p. 823). I
- 30 -
stress this function of recommending acceptable and equitable solutions to the two Governments.
The Commission's actual recommendation to join the shelf boundary to the delimitation line for the
fishery zones following the outer limit of Iceland's 200-mile economic zone was consequently seen by
the Commission as an equitable solution. The same attitude was then adopted by the two
Governments which based their 1981 Agreement on the Commission's recommendation (fifth
preambular paragraph of the Agreement). As to the first Agreement on fishery questions of 1980,
the Chairman of the Foreign Affairs Committee of the Norwegian Parliament, in recommending the
Parliament to approve that agreement, stated that the whole Committee agreed that the aim had been
to reach a negotiated settlement with Iceland and that the present agreement is acceptable
(Counter-Memorial, Ann. 11, p. 38). Other participants in the debate characterized the agreement as
one of "equity", one representing "a reasonable approach" (ibid., pp. 47-48, Mr. Per Karstensen); an
agreement "as good as it could be" (ibid., p. 63, Mrs. Hanna Kvanmo); an agreement "to the
mutual benefit of the interests of both parties" (ibid., p. 66, Mr. Sven Stray); an agreement which
"strikes a balance between what is right and what is reasonable" (ibid., p 74, Mr. Jakob Aano).
Thus, the boundary in the waters between Iceland and Jan Mayen must be seen as an equitable
result - not a political concession as now asserted by Norway.
If we were to believe what is written in the Norwegian Counter-Memorial about the Danish
claims in the present dispute, then the agreements between Iceland and Norway would have to be
characterized as "a major departure from the realities of the geographical situation"
(Counter-Memorial, para. 670) a "trespass deeply into the basic entitlement of Jan Mayen"
(Counter-Memorial, para. 515); the agreements "would be contrary to common sense, and constitute
a threat to legal stability" (Counter-Memorial, para. 685); the claims of Iceland for maintaining its
200-mile economic zone would "appear entirely without foundation" (Counter-Memorial, para. 692).
I believe the Norwegian Parliament would have been alarmed had it been asked to give its consent to
such agreements violating common sense and basic norms of international law. As can be seen from
the Parliamentary debate on the two agreements there was no reason for alarm. On the contrary.
The agreements represented an international recognition of the status of Jan Mayen as an island
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under international law adding some 330,000 km2
of territories to Norway equal to the total area of
mainland Norway - as it was stated before the Norwegian Parliament by the Chairman of the Foreign
Affairs Committee (Counter-Memorial, Ann. 11, p. 40).
In actual fact the line of reasoning reflected in the quotations from the Norwegian
Counter-Memorial which I have just read out, has been adopted by Norway specifically to suit the
Norwegian aims in the present case. At the time when the agreements with Iceland were
contemplated in 1978-1979 a Norwegian 200-mile fishery zone around Jan Mayen was not even
expected to meet with the approval of other countries. This fact was stated clearly by the
Norwegian Foreign Minister during the debate in the Norwegian Parliament on 6 June 1980: "But
we must also face the fact that it would have been a zone which other countries would not have
respected, and which Iceland would probably actively have opposed." (Counter-Memorial, Ann. 11,
p. 54.) In the light of that statement by Norway's Foreign Minister the boundary between Iceland
and Jan Mayen, according a maritime zone of some 90 nautical miles to the island of Jan Mayen
vis-à-vis Iceland, must be characterized as very favourable to Norway and therefore acceptable to
the Norwegian Parliament, also reflecting an equitable solution.
The Norwegian Parliament, I believe, would have been equally alarmed had they been
presented with the sketch-map now shown in Annex 72 to the Counter-Memorial, indicating that
Norway accepts that Jan Mayen would have no effect on Iceland's 200-mile economic zone, whereas
the Icelandic rock of Kolbeinsey will be given full effect. As you will see from that sketch-map,
which has been produced ad hoc for the present proceedings, the map deviates on this point -
concerning Kolbeinsey - decisively from the original map presented to the Norwegian Parliament
shown in Annex 57 of the Danish Reply. (That is one of the first annexes in the Reply - the original
map presented to the Norwegian Parliament.) The original map stops at the intersection point
between Iceland's and Greenland's 200-mile zone and then continues along a median line between
Iceland and Greenland, whereas the newly produced map (Counter-Memorial, Ann. 72) takes the
Icelandic 200-mile line further north up to the intersection of that line with a median line between
Greenland and Jan Mayen, thus respecting the rock of Kolbeinsey. But for Norway to accord full
- 32 -
effect to the Icelandic rock of Kolbeinsey and only partial effect to its own island Jan Mayen simply
does not make sense. And the Norwegian Government could, of course, not be expected to present a
proposition to its Parliament which does not make sense. The map presented to the Norwegian
Parliament in 1981 does not, therefore, depict such a distortion in the relative effect to be given to
Kolbeinsey and Jan Mayen as now appears in the sketch-map presented in the Norwegian
Counter-Memorial.
The reality, as already mentioned, is that the agreements - there are two agreements - between
Iceland and Norway as presented to the Norwegian Parliament do express a sensible and equitable
solution - otherwise they would not have been agreed to. These agreements, therefore, create a most
important precedent with regard to the delimitation situation between Greenland and Jan Mayen
which, practically speaking, is the same as that between Iceland and Jan Mayen.
In the Rejoinder (para. 374), Norway states that the Agreement with Iceland of 28 May 1980
was approved by the Norwegian Parliament explicitly on the basis that no precedent was being
created in relation to other delimitations, and that this is accepted by the Danish Government in the
Reply (para. 319). I beg to disagree. The Danish Government does not accept that interpretation.
In the Reply (para. 319) Denmark noted that the Norwegian Parliament and Government did not
wish the agreement to form a precedent, but then it is added in the Reply "[b]ut the precedent was
nevertheless created by the ratification of the two Agreements". Norway tries several times in the
Rejoinder to belittle the Danish reasoning by labelling it "wishful thinking". Talking about wishful
thinking, the assertion by the Norwegian Government and Parliament that the agreements with
Iceland did not create any precedent is indeed a piece of wishful thinking to which I shall revert a
little later during this presentation. Lest there should be any further misunderstanding I wish to
stress once again that Denmark is not applying for most-favoured nation treatment, as asserted by
Norway (e.g., paragraph 700 of the Counter-Memorial), but is simply pointing to a most relevant
precedent which, in the circumstances, clearly represent an equitable result.
Mr. President,
2. I should like also to point out that the maritime boundary between Norway and Iceland was
- 33 -
first put in place with effect for the fishery zone and afterwards for the continental shelf area. This
shows the sequence of events when the new broad maritime zones were introduced and accepted in
this region of the North Atlantic. When negotiations between Denmark and Norway started in
December 1980, some six months after the conclusion of the first Icelandic-Norwegian agreement,
the discussions followed the same pattern as that established between Norway and Iceland. First the
delimitation of the fishery zone was discussed. Later the delimitation of the continental shelf area
was joined to the negotiations.
If we were to believe the Norwegian thesis and primary legal argument in the present case,
namely that the continental shelf boundary between Greenland and Jan Mayen was already in place
when negotiations started in December 1980, and that the outstanding question was just the exact
demarcation of the shelf boundary to which the fishery zone would then have to be joined, why then
did we spend days, months and years arguing separately about the boundary for the fishery zone?
The answer of course is that we did so because neither the shelf boundary nor any other common
boundary were in place in the area, and because it corresponded to the facts of the case which
centered around the fishery resources in the area, whereas the mineral potential of the shelf was not
known and still is not. The Norwegian thesis ignores the facts of the case. It is simply invented to
serve Norway's needs in the present dispute. My good friend and colleague, Per Tresselt, can
confirm this description as he was present during the first round of negotiations in December 1980 in
Oslo where, as correctly stated in the Norwegian Counter-Memorial (para. 257) "Each Party
provided a detailed presentation of its legal position."
Together the two Agreements between Norway and Iceland, from 1980 and 1981, establish a
single line of maritime delimitation of the fishery zones and the continental shelf area between
Iceland and Jan Mayen. Or, if Norway prefers, we may say that the two agreements establish two
identical lines of delimitation for these maritime areas. At any rate, the line or lines are drawn in a
way which fully respects Iceland's 200-mile economic zone. Jan Mayen has not been allowed in any
way to reduce Iceland's 200-mile zone, neither as regards the fishery zones nor as regards the
continental shelf area.
- 34 -
3. Mr. President, in commenting briefly on each of the two Agreements, I wish to show to the
Court that both Agreements contain a recognition in law by Norway of Iceland's right to a 200-mile
economic zone unaffected by the presence of the island of Jan Mayen.
Let me first deal with the Agreement of 28 May 1980.
That Agreement settled the Norwegian-Icelandic dispute on fishery rights in the waters
between Jan Mayen and Iceland.
The Agreement is clearly based upon legal considerations, as stated expressly in the Preamble
to the Agreement. Thus preambular paragraph 8 refers to the work carried out by UNCLOS III.
Moreover, preambular paragraph 5 contains an explicit recognition by Norway of Iceland's 200-mile
economic zone. The recognition is based on legal considerations. First, reference is made in
preambular paragraph 4 to Iceland's dependency on fisheries in accordance with Article 71 of the
text of the Conference on the Law of the Sea, as it stood at the time. Secondly, the special
circumstances clause is referred to in preambular paragraph 6.
Iceland for its part - after having been inclined to consider Jan Mayen as merely a rock not
entitled at all to broad maritime zones under international law - has given in, in this Agreement, to
the Norwegian claim to accord island status to Jan Mayen, but only to the extent that it be
recognized that Jan Mayen's maritime zones would have no effect upon Iceland's full 200-mile
economic zone (preamble 5). This result was actually established at the national level in Norway
even before the Agreement was signed, by Norwegian Royal Decree of 23 May 1980 (Danish
Memorial, Ann. 7), that is, five days before the Agreement with Iceland was signed. The Decree
states expressly that: "The outer limit of the [Norwegian] fishery zones shall be drawn ... not ...
beyond the line constituting the outer limit of the economic zone of Iceland ..." The Norwegian
Royal Decree of 23 May 1980 entered into force on 29 May 1980, i.e., one day after the agreement
with Iceland was signed, but before it entered into force.
It shows that Norway was more than ready to secure an agreement with Iceland which gave
recognition to Jan Mayen as an island under international law entitled to broad maritime zones, i.e.,
with full effect to the east towards the high seas and with partial effect vis-à-vis the competing coast
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of Iceland.
I shall now turn to the 1981 Agreement (the one on the continental shelf).
As already stated the Agreement of 28 May 1980 also established a conciliation commission
of three persons with the task of recommending a line of delimitation with regard to the continental
shelf area between Iceland and Jan Mayen. The members of that Commission were three most
distinguished international lawyers and scholars within the field of the law of the sea, namely, as
Chairman, the Honourable Elliot L. Richardson; as conciliator for Iceland, Mr. Hans G. Andersen,
the Legal Adviser at the time to the Foreign Ministry of Iceland; and as conciliator for Norway, the
then Under-Secretary for Legal Affairs in the Norwegian Ministry of Foreign Affairs, now the
honourable Judge Jens Evensen. In its "Report and Recommendations to the Governments of Iceland
and Norway" dated May 1981, the Conciliation Commission recommended that the delimitation line
for the continental shelf should coincide with the 200-mile economic zone proclaimed by Iceland.
On the basis of the Report, Norway and Iceland subsequently concluded the Agreement of
22 October 1981 on the continental shelf in the area between Iceland and Jan Mayen. According to
its own words that Agreement is built upon the recommendation of the Conciliation Commission and
consequently states in Article 1 that the delimitation line of the shelf shall coincide with the
delimitation line already established for the Parties' economic zones.
Even though the Commission should not act as a court of law, it is to be noted that its report
from May 1981 contains in Section IV a legal evaluation of the question of the status of Jan Mayen
under present day international law, resulting in the recognition of Jan Mayen as an island entitled to
broad maritime zones, and not as a rock. Furthermore, the recommendations of the Commission are
based upon a study of State practice and court decisions. To quote the Commission's Report (as
published in International Legal Materials, Vol. XX p. 823):
"Although not a court of law, the Commission has thoroughly examined State practice
and court decisions in order to ascertain possible guidelines for the practicable and equitable
solution of the questions concerned."
As a result of that examination, the Commission presents an outline of the typical solutions where
islands are involved; from solutions where full weight is given to solutions applying the so-called
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"enclave principle", the limited weight solution and situations where islands involved are "traded
off", so to speak (page 823 of the Report).
Taking into consideration, Mr. President, the fact that the Commission consisted of three
outstanding legal experts within the field of the Law of the Sea, each of them serving as head of
delegation of their respective Governments to UNCLOS III, the legal approach adopted by the
Commission seems most natural and must have been in line with the expectations of both Norway
and Iceland when choosing these legal advisers as members of the Commission.
Against this whole background it is fully justified to consider the two Norwegian-Icelandic
Agreements as indeed establishing a very important legal precedent in the present case deserving the
closest attention from the Court.
Together the two Agreements establish exactly the same solution for the delimitation between
Jan Mayen and Iceland which Denmark considers to be reasonable and just for the delimitation
between Greenland and Jan Mayen, i.e., a boundary which gives only partial effect to Jan Mayen.
The possibility - or should I rather say danger - that these Agreements would be of the utmost
importance as precedents in relation both to the delimitation between Greenland and Jan Mayen and
to the delimitation with the then Soviet Union in the Barents Sea was taken into account by Norway.
I refer to the various statements made in the Norwegian Parliament in relation to the
presentation of the two Agreements (Counter-Memorial, Anns. 11 and 15).
The Foreign Minister, Mr. Knut Frydenlund, expressed his expectations rather bluntly when
he said during the parliamentary debate on 6 June 1980 that: "[c]learly there is a potential source of
conflict here with Denmark" (Counter-Memorial, Ann. 11, p. 55), Mr. Hermand Eian found it
"hard to see how Norway will be able to maintain its former principles with the same authority
in negotiations with other neighbouring countries once they have been abandoned in relation to
Iceland" (Counter-Memorial, Ann. 11, p. 58).
Mr. Per Saevik felt that
"[t]he claim that this departure [from previous practice] will not form a precedent in
agreements with other countries is not particularly reassuring" (Counter-Memorial, Ann. 11,
p. 60).
Another member of the Norwegian Storting, Mr. Kare Rönning, was
"very much afraid that this complete acceptance of Iceland's 200-mile zone can have very
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considerable consequences for other as yet unsettled boundary questions..."
(Counter-Memorial, Ann. 11, p. 71),
and Mr. Björn Erling Ytterhorn - during the debate in May 1982 on the shelf agreement - directly
described the Agreement as an "extremely dangerous precedent" (Counter-Memorial, Ann. 15,
p. 89).
We agree with these assessments.
In its Counter-Memorial Norway has tried to belittle the importance of the two
Norwegian-Icelandic Agreements in relation to the present case by stressing repeatedly that these
Agreements are political in nature and therefore cannot provide a legal precedent (e.g.,
Counter-Memorial, para. 650).
It may be true that both agreements to some extent can be seen as the result of a political deal
between the two countries. But that deal relates to the arrangements applying beyond the Icelandic
200-mile economic zone as described in the Danish Reply (paras. 312-315). Thus, the significant
additional rights accorded to Iceland in relation to fisheries and the continental shelf area in the
otherwise exclusive Norwegian zone, may suitably be described, as Norway does, as "the product of
generous political concessions" (Counter-Memorial, para. 559).
But that explanation does not hold true with regard to Norway's acceptance of Iceland's
economic zone of 200 nautical miles (see paragraphs 312-315 of the Reply).
Let me conclude these remarks on the two agreements between Norway and Iceland of 1980
and 1981 reiterating that the Government of Denmark is of the opinion that these agreements contain
most convincing evidence and constitute a legal precedent in support of the Danish view that the
island of Jan Mayen - though entitled to maritime zones of its own - may not generate full maritime
zones vis-à-vis the competing coast of Greenland. The logical conclusion to be drawn from a
comparison of the present case with the Jan Mayen/Iceland precedent is that the island of Jan Mayen
can only be given partial effect vis-à-vis Greenland, leading to a maritime zone of some 50 nautical
miles, that is, more than double the size of the contiguous zone of 24 nautical miles.
Mr President, distinguished Members of the Court,
4. The agreements between Norway and Iceland are the most relevant items of State practice
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to be considered in the context of the present case. Norway attempts to explain the reasoning behind
State practice in other regions of the world, but has hardly anything to say about its own agreements
concerning Jan Mayen. Instead Norway adopts a very contemptuous attitude towards the way in
which Denmark has treated the item of State practice in regard to islands (paragraphs 462-464 of the
Rejoinder).
It is correct that Denmark has exercised a certain restraint in putting forward our
interpretation as to the motives of other States in reaching a particular result in a delimitation
situation involving islands. As we have stated already in the Memorial, the difficulty is that the
specific reasons for a particular delimitation are generally not known. They remain in the archives
of the State Parties (paragraph 269 of the Memorial).
The examples of State practice presented must necessarily be of varying importance,
depending on different factors such as the geographical location of the particular islands, their size
and length of coastline, population, etc. The evaluation of the weight these examples ought to have
in the present case is no easy task due to the variety of the characteristics of each individual case.
Monumental pleadings could be developed in each particular case in support of the various claims -
as can be seen from the present dispute.
All kinds of assertions can therefore be made in relation to the interpretation of individual
cases of State practice. The Norwegian presentation in the Counter-Memorial (paras. 618-658) as
well as in the Rejoinder (paras. 462-496) bears witness to this fact as also pointed out in the Danish
refutation of the Norwegian assertions (paragraphs 214-259 of the Reply). Already the heading to
the Norwegian presentation of State practice is grossly misleading. It says: "The Practice of other
States in Similar Geographical Situations" (page 176 of the Counter-Memorial and page 140 of the
Rejoinder). May I ask where in the Norwegian list of State practice do we find a situation similar to
that of Greenland versus Jan Mayen? Nowhere, I submit. The new map (Map VII in the Rejoinder,
that is the last map in the Rejoinder) highlights this fact. I can't see on that map any delimitation
situation which even remotely bears any resemblance to that existing between Greenland and
Jan Mayen. Shouldn't we rather concentrate on the State practice which one of the Parties to this
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dispute, Norway, has itself established with regard to the very same island, Jan Mayen, which has
given rise to the present dispute? That piece of well-documented State practice is furthermore
supported by Norway's own attitude vis-à-vis Bear Island which in many central aspects is similar to
the situation between Greenland and Jan Mayen, which exists in the same region of the North
Atlantic, and which is also well documented.
It is, indeed, ironic that Norway should dismiss as irrelevant two well-documented examples
of delimitations carried out in the North Atlantic region and resembling that of the
Jan Mayen-Greenland delimitation at the same time as Norway cites as relevant a number of quite
different examples of State practice in other and quite different regions of the world.
Realizing that the state of affairs with regard to the role of islands in maritime delimitation
cases present a kaleidoscopic picture scarcely explained in case-law - to borrow a pertinent phrase
used by Professor Prosper Weil in his learned dissertation on the law of maritime delimitation (The
Law of Maritime Delimitation - Reflections, p. 233) - Denmark has adopted the approach of trying
to extract from State practice and case-law the type of methods which have been used in maritime
delimitation involving islands which prima facie would appear to have a distorting effect on an
otherwise equitable boundary. The methods used by States have been to give the island partial
effect or to enclave the island, typically by establishing a 12-mile territorial sea or zone around the
island. Professor Bowett will in our next intervention present in much more detail, and with maps,
the actual method of delimitation in the present case. And this analysis of the method of delimitation
is not an academic exercise, as Norway has chosen to name it (paragraph 462 of the Rejoinder), but
a legal analysis which is at the heart of any delimitation process.
As it is the view of Denmark that the small and uninhabited island of Jan Mayen is in itself
creative of inequity when the maritime boundaries are to be established between that island and the
surrounding territories of Iceland and Greenland, the island of Jan Mayen cannot be accorded full
effect, but only partial effect. An enclave solution is not, however, called for in the present
circumstances where the distance between the respective coastal length is more than 200 nautical
miles. Thus, in the delimitation between Iceland and Jan Mayen, the island of Jan Mayen generates
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its 12-mile territorial sea plus an additional 80-nautical-mile fishery zone and continental shelf area.
The Danish claim will likewise allow for a 12-nautical-mile territorial sea plus a fishery zone and
continental shelf area of some 40 nautical miles. All in all Jan Mayen would have a maritime zone
of some 45 nautical miles as a minimum which is icefree most of the year, as compared to the
remaining Greenlandic zone which is covered with ice most of the year (see the Figure describing the
ice situation on page 41 of the Memorial).
In paragraph 467 of the Rejoinder, referring to the Danish Reply, Norway summarizes the
delimitation practice in the North Atlantic region in the following way:
"In the present context, it is necessary to point out that, if practice in the North Atlantic
region is adverted to, then the norm of delimitation is the median line, as the Reply recognises,
referring to Canada-Greenland, Greenland-Iceland, Iceland-Faroe Islands, Faroe
Islands-Norway, and Shetland Islands-Norway (Reply, pp. 122-123, para. 331). The only
case of delimitation not based on a median line is that of Jan Mayen-Iceland. Why, then, does
Denmark prefer the exception to the regional norm?"
A question is asked, and my answer is as follows.
Firstly, it is to be noted that Norway regards the practice in the North Atlantic region as a
norm and the Jan Mayen-Iceland boundary as an exception to that norm - so, the exception is part of
a norm. We agree. Secondly, Denmark prefers the exceptional norm to the regional norm because
no two delimitation cases could be more similar in nature than the delimitation between Iceland and
Jan Mayen and that between Greenland and Jan Mayen. Not only are these two delimitation cases
geographically proximate but, as far as one of the land territories involved is concerned, namely
Jan Mayen, they are identical. The two land territories involved on the other side, Greenland and
Iceland, bear to a large extent similar characteristics. They are both situated in the same oceanic
region (Memorial, Map I). Both are of a very considerable size whether seen in isolation or in
comparison with their opposite delimitation partner, Jan Mayen. Topographically their coastlines,
relevant for this case, are very similar, as further described in the Danish Memorial, paragraph 21.
Even the coastal ratios vis-à-vis Jan Mayen are comparable, namely, a ratio of around 9:1 in favour
of Greenland as Mr. Thamsborg has already explained in detail, and one slightly greater in favour of
Iceland. And, finally, their populations are in both cases heavily dependent on fisheries for their
survival and further economic development. Therefore, Mr. President, Denmark considers the
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exceptional norm created for the maritime boundary between Iceland and Jan Mayen to be applicable
too in the waters between Greenland and Jan Mayen.
Mr. President, this concludes my intervention on the case of Jan Mayen versus Iceland.
And, if the Court agrees, Professor Bowett will start out tomorrow dealing with the actual
method for drawing a single line of delimitation within the relevant area.
I thank you Mr. President.
The PRESIDENT: Thank you very much Mr. Lehmann. So we will hear Professor Bowett at
10 o'clock tomorrow morning.
The Court rose at 12.15 p.m.