Audience publique tenue le mercredi 20 janvier 1993, à 10 heures, au Palais de la Paix, sous la présidence de sir Robert Jennings, président

CR 93/7
International Court Cour internationale
of Justice de Justice
THE HAGUE La HAYE
YEAR l993
Public sitting
held on Wednesday 20 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 22 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,
comme agents et conseils;
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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: Professor Brownlie.
Mr. BROWNLIE: Thank you.
Denmark's Claim in the Light of
General International Law
Introduction
Mr President, distinguished Members of the Court, it is my task to address certain questions
of general international law as they arise in the pleadings.
The position of Norway is that the validity of the median line boundary receives independent
support and confirmation from the equitable principles which form part of general international law.
This position is without prejudice to the principle of consent based upon the Continental Shelf
Convention of 1958, the Agreement of 1965, and the conduct of the parties.
The principle of consent necessarily stands in front of, and has priority over, general
international law, whilst at the same time being compatible with the relevant concepts of general
international law. When all is said and done the consent of the parties is an obvious expression of
equity.
The Norwegian position on delimitation, explained in schematic terms, involves three
alternatives.
First, the position is governed by the provisions of the 1965 Convention as a treaty in force.
Secondly, if, which is not admitted, the 1965 Convention is not applicable, then Article 6 of
the 1958 Convention applies. This provides a necessary reference to a median line boundary "unless
another boundary is justified by special circumstances", and in this context also in our contention the
equitable result is an unmodified median line.
The significance of Article 6 has after all been well recognized in the delimitation practice of
Denmark. The Danish delimitation agreements with Canada in 1973 (Counter-Memorial, Ann. 55)
and with Sweden in 1984 (ibid., Ann. 74) contain express preambular references to the Continental
Shelf Convention of 1958.
And then, in the third alternative, but essentially confirming the delimitation based upon
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agreement, there is the median line as the equitable solution dictated by the principles of general
international law.
The substantial interest of Norway
Before I approach the equitable principles of general international law overall, it is convenient
to deal with two elements which have figured much in the written pleadings, namely, the substantial
interest of Norway in the Jan Mayen maritime region, and the legal relevance of the factor of
population.
The elements forming Norway's interest in the region are the long-established exploitation
patterns in relation to sealing and whaling, fisheries, navigational and security considerations,
resource potential, and maritime research and development. The precise nature of these interests has
been expanded upon in the speeches of the Agents and also in the written pleadings
(Counter-Memorial, pp. 164-170, paras. 567-596; Rejoinder, pp. 158-162, paras. 532-546).
My present purpose is to underline a particular aspect of this type of relevant circumstance,
that is, the symbiotic relationship between the land territory and the interest of the coastal State in
the maritime areas.
The usual reference in this context is to the Decision of the Court of Arbitration in the
Anglo-French case which adverted to the respective "navigational, defence and security interests" of
the Parties in the region. Having done so, the Court stated that such considerations "tend to evidence
the predominant interest of the French Republic in the southern areas of the English Channel, a
predominance which is also strongly indicated by its position as a riparian State along the whole of
the Channel's south coast" (UNRIAA, XVIII, p. 90, para. 188 in fine).
The epithet "predominant" was no doubt more appropriate to the situation in the Channel
Islands region but strictly speaking it is otiose. Any substantial interest would acquire the status of
relevant circumstance, whether or not it could be described as predominant.
A similar argument was deployed by the United States in the Gulf of Maine case, where the
Reply included this submission:
"3. That the relevant circumstances in the area relating to the predominant interest of
the United States as evidenced by the activities of the Parties and their nationals include:
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(a) the longer and larger extent of fishing by United States
fishermen since before the United States became an independent country;
(b) the sole development, and, until recently, the almost
exclusive domination of the Georges Bank fisheries by United States fishermen; and
(c) the exercise by the United States and its nationals for more than 200 years of the
responsibility for aids to navigation, search and rescue, defense, scientific research and
fisheries conservation and management."
It is worth recalling that the Chamber did not reject this contention tout court as being unfounded in
law but on grounds of relevance in the context of fisheries (Judgment, I.C.J. Reports 1984,
pp. 340-342, paras. 233-237).
The point which I would emphasize is that this type of relevant circumstance is characterized
as one relating to maritime areas as such. And this is significant when the question of title is
considered. The land territory, and the coasts thereof, generate title, and that is a legal datum. When
the interests of the coastal State in the maritime areas are taken into account, it is seen that there is a
necessary inter-dependence and to a certain extent it is the nature of the maritime areas and their
resources which confers a value upon the land territory.
To this may be added the coastal State's protective interest.
The Truman Proclamation referred specifically, in its Preamble, to the fact that "the
effectiveness of measures to utilize or conserve these resources [of the subsoil and sea-bed of the
continental shelf] would be contingent upon co-operation and protection from the shore", and further
that "self-protection compels the coastal nation to keep close watch over activities off its shores
which are of the nature necessary for utilization of these resources".
In this connection there is a consideration of maintaining a balance, which is reflected in the
jurisprudence. Thus in the Award in the Guinea/Guinea-Bissau case it was stated:
"To the economic circumstances, the Parties linked a circumstance concerned with
security. This is not without interest, but it must be emphasized that neither the exclusive
economic zone nor the continental shelf are zones of sovereignty. However, the implications
that this circumstance might have had were avoided by the fact that, in its proposed solution,
the Tribunal has taken care to ensure that each State controls the maritime territories situated
opposite its coasts and in the vicinity. The Tribunal has constantly been guided by its concern
to find an equitable solution. Its prime objective has been to avoid that either Party, for one
reason or another, should see rights exercised opposite its coast or in the immediate vicinity
thereof, which could prevent the exercise of its own right to development or compromise its
security." (International Law Reports, Ed. E. Lauterpacht, Vol. 77, p. 689, para. 124.)
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The actual circumstances of Jan Mayen and the contiguous maritime areas illustrate the
symbiotic relationship involved. The existence of major communications and rescue facilities on Jan
Mayen provides the means of assisting fishery and other vessels, and ensuring the evacuation of sick
and injured crew members.
Thus in a general way Norway has a substantial interest in the maritime region contiguous to
Jan Mayen and this is complemented in the most logical way by the protective interest which a
coastal State naturally has.
Jan Mayen provides the basis of title to Norway's entitlements and is the axis of Norwegian
interests in the region.
In concluding my remarks about the substantial interest of Norway, I shall respond to the
arguments made by Denmark about fisheries. My response consists of a single point. The position
of Norway is based upon considerations of law, both in the form of a boundary based upon treaty
and in the form of principles of general international law. Norway's position involves invoking her
substantial interest in Jan Mayen and the surrounding areas as a relevant circumstance, which may
confirm her legal position.
In contrast Denmark is using the factor of the economic interests of Greenland as the basis for
an absurd and ambitious claim. Norway is seeking to maintain a normal entitlement. Denmark is
seeking to use a potential interest in fisheries to subvert the normal interest of the coastal State,
Norway. In our submission this is a misuse of the concept of relevant circumstances and the misuse
arises because proportionality cannot be used as a basis of delimitation - that is beyond argument -
and the Danish 200-mile claim needs a façade of legitimacy.
And in any case the economic interests invoked by Denmark cannot affect the equitable
solution in relation to continental shelf areas.
I now turn to the factor of population.
The population factor
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In its written pleadings Denmark has made persistent references to the factor of population.
These references are perfunctory and in most cases free of either legal reasoning or authority (Reply,
pp. 156-157, para. 429; p. 158, para. 435; p. 159, para. 436; p. 163, para. 445; p. 165,
paras. 452-453; p. 169, para. 463).
The only exception, in which some legal authority is proposed, involves a reference to the
Decision in the Anglo-French case (Memorial, p. 98, para. 303).
That Decision makes a reference to "the size and importance of the Channel Islands" in a
context in which this assessment may, by implication, include reference to population (Decision,
para 187). But the Court gave only a modest level of relevance to "the size and importance" element.
In the words of the Court of Arbitration:
"The legal framework within which the Court must decide the course of the boundary
(or boundaries) in the Channel Islands region is, therefore, that of two opposite States one of
which possesses island territories close to the coast of the other State. To state this conclusion
is not, however, to deny all relevance to the size and importance of the Channel Islands
which, on the contrary, may properly be taken into account in balancing the equities in this
region ..."
Mr. President, the result of giving "a certain weight" to the British arguments based on
political and economic importance of the Channel Islands was an enclaving on a 12-mile as opposed
to a six-mile basis (Decision, para. 198), which is not perhaps a major outcome.
The Court will also recall that in deciding not to ignore Seal Island entirely the Chamber in the
Gulf of Maine case referred to various factors of which one, was that it is "inhabited all the year
round" (I.C.J. Reports 1984, pp. 336-337, para. 222).
At this point, Mr. President, the inquiry leads to two interim conclusions. The first is that
references to population are fairly unusual. And the second is that when population is invoked this is
not as a necessary condition of significance but as a subsidiary element in a generalized assessment
of the importance of a feature.
In the case of the Channel Islands they were essentially discounted in spite of their "size and
importance" because of their geographical situation. In the case of Seal Island its significance
depended to a great extent on its geographical position: had it been situated elsewhere it would have
had no significance for delimitation whatever its population.
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Moreover, in the few instances in which population has been treated as relevant, this was at a
very late stage of the process of delimitation. Thus the reference comes at the stage of fine-tuning in
situations in which the critical decisions have already been taken without any reference to
population.
The Channel Islands and Seal Island references occur precisely at the stage of fine-tuning.
Thus, in the case of the Channel Islands the Court tested the decision to enclave on other grounds
and the reasoning on which Denmark relies relates exclusively to the issue of an enclave of six miles
or 12 miles (Decision, paras. 195-202).
The result, Mr. President, is that population plays a role only if certain contingencies arise and
at a late stage in a long sequence of operations. In our submission it is the ultimate subordinate.
When it is a question of the critical elements in delimitation, the factor of population not only
has no significant role in practice, but is irrelevant as a matter of principle.
The irrelevance, as a matter of principle, of the factor of comparative population is indicated
by the following considerations.
First, population is unrelated to the basis of entitlement of the coastal State, which is the
possession of a territory with coasts - not with populated coasts, with coasts. This was emphasized
by the Court in the Libya/Malta case. The Court was referring to economic considerations but the
reasoning is obviously applicable to the factor of comparative population. In the words of the Court:
"The Court does not however consider that a delimitation should be influenced by the
relative economic position of the two States in question, in such a way that the area of
continental shelf regarded as appertaining to the less rich of the two States would be
somewhat increased in order to compensate for its inferiority in economic resources. Such
considerations are totally unrelated to the underlying intention of the applicable rules of
international law. It is clear that neither the rules determining the validity of legal entitlement
to the continental shelf, nor those concerning delimitation between neighbouring countries,
leave room for any considerations of economic development of the States in question." (I.C.J.
Reports 1985, p. 41, para. 50.)
Secondly, the population factor is not a consideration which is pertinent to the institution of
the continental shelf as it has developed within the law. Nor is it pertinent to the application of the
equitable principles. The Court will recall that this limitation upon relevant considerations to be
taken into account was given firm expression in the Judgment in the Libya/Malta case (I.C.J.
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Reports 1985, p. 40, para. 50). The rules determining the validity of legal entitlements and the rules
concerning delimitation must bear upon the resources of the sea-bed or maritime areas in question.
The Court was here responding to a Libyan argument based on comparative landmass which
had been pursued with great persistence.
The reasons for its rejection were stated by the Court as follows:
"It was argued by Libya that the relevant geographical considerations include the
landmass behind the coast, in the sense that that landmass provides in Libya's view the factual
basis and legal justification for the State's entitlement to continental shelf rights, a State with a
greater landmass having a more intense natural prolongation. The Court is unable to accept
this as a relevant consideration. Landmass has never been regarded as a basis of entitlement
to continental shelf rights, and such a proposition finds no support in the practice of States, in
the jurisprudence, in doctrine, or indeed in the work of the Third United Nations Conference
on the Law of the Sea. It would radically change the part played by the relationship between
coast and continental shelf. The capacity to engender continental shelf rights derives not from
the landmass, but from sovereignty over the landmass; and it is by means of the maritime
front of this landmass, in other words by its coastal opening, that this territorial sovereignty
brings its continental shelf rights into effect. What distinguishes a coastal State with
continental shelf rights from a landlocked State which has none, is certainly not the landmass,
which both possess, but the existence of a maritime front in one State and its absence in the
other. The juridical link between the State's territorial sovereignty and its rights to certain
adjacent maritime expanses is established by means of its coast. The concept of adjacency
measured by distance is based entirely on that of the coastline, and not on that of the
landmass." (I.C.J. Reports 1985, pp. 40-41, para. 49.)
In our submission it is reasonably clear that that reasoning applies cogently to the factor of
population and in a similar way disqualifies it as a relevant consideration.
In the light of the Libya/Malta Judgment, it is reasonable to suppose that the tendency of earlier
decisions to make occasional reference to population is to be regarded with reserve, because it was
not until the Libya/Malta case that a qualification had been placed upon the more liberal policy
adopted in the North Sea cases, where it had been said that:
"In fact, there is no legal limit to the considerations which States may take account of
for the purpose of making sure that they apply equitable procedures." (I.C.J. Reports 1969,
p. 50, para. 93.)
The third consideration is the unpredictability of the population factor. It was on this basis
that the Court in the Tunisia/Libya case rejected the relevance of economic considerations. In the
words of the Judgment:
"The Court is, however, of the view that these economic considerations cannot be taken
into account for the delimitation of the continental shelf areas appertaining to each Party.
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They are virtually extraneous factors since they are variables which unpredictable national
fortune or calamity, as the case may be, might at any time cause to tilt the scale one way or
the other. A country might be poor today and become rich tomorrow as a result of an event
such as the discovery of a valuable economic resource." (I.C.J. Reports 1982, p. 77
para. 107.)
The fourth consideration is that the factor of population has no capacity to indicate a
boundary, either provisionally or otherwise. It must follow that, when it comes to establishing the
geographical framework within which the process of delimitation will go forward, population is
completely irrelevant. It is absolutely clear that, when a tribunal is assessing the geographical
relationships and the implications of coastal geography, population and similar factors are carefully
ignored.
These considerations of principle receive strong support from the practice of States. There is
no evidence in the practice of States that the population factor plays any role in delimitation, either
in the major features of delimitation or in the selection of basepoints. This is evident in the practice
of the Parties to these proceedings.
Mr. President, I have dealt with the legal aspects of the population factor and I turn now to the
factual data relating to population.
The Danish Memorial, if I could remind the Court, presents the following picture:
"Greenland has approximately 55,000 inhabitants, six per cent of them living on the
east coast. Greenland has been inhabited for several thousand years. Jan Mayen has no
settled population at all and has never had any." (Memorial, p. 110, para. 351; emphasis in
the original.)
The Court will not be surprised to hear that the Norwegian Government sees a significantly
different picture.
The broad comparison must involve density of population. The figure for Jan Mayen, with a
population of 25, involves a density of one person per 15 square kilometres. Greenland has a density
of one person per 40 square kilometres.
If a regional comparison be made, the Greenland element is even less impressive. Only a
small proportion of the population of Greenland lives at the same latitudes as Jan Mayen. Moreover,
East Greenland contains only 6 per cent of the population of Greenland as the Danish Memorial
indicates (Memorial, p. 36, para. 148).
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In the region of East Greenland abutting upon the area in dispute, the only settlement is
Scoresbysund, which had a population of 538 in 1992 (Grønland 1991: Kalaallit Nunaat,
Atuakkiorfik, 1992, p. 352).
I come now to the character of such a population in the Arctic region. East Greenland is no
less desolate and isolated than Jan Mayen. Indeed, Scoresbysund is inaccessible from the sea for
more than nine months every year. The only scheduled air service is from Iceland.
In such conditions, the distinction between a population of normal urban development and a
population based on a subsidized infrastructure and maintained for collateral reasons of State
becomes impossible to maintain.
And Scoresbysund has an essentially political rather than an economic role. As Norway had
occasion to point out in the Rejoinder (pp. 17-18, para. 55), the Scoresbysund area was unpopulated
until 1925 and the direct cause of its creation was the dispute over sovereignty between Norway and
Denmark in that period.
Moreover, the community of Scoresbysund is overwhelmingly dependent on outside supplies
and public support. Since the end of the 1960s, the local economy has suffered increasingly as a
result of a deteriorating market for seal furs. It has not been possible to establish commercial
fisheries in the area to compensate for the loss of income. Today, catch activities represent only
5 per cent of the local income, and the municipality is the poorest in Greenland. It was the port of
registration for a single seagoing fishing vessel, but this no longer exists. At the end of the 1970s,
the Greenland Council even discussed the possibility of dismantling the whole community, but recent
prospecting for oil has so far halted such a development. In 1990, however, the oil companies
involved relinquished their concession.
And so, the experience of more than 65 years illustrates that settlement in these areas of the
Arctic is highly dependent on outside support and may undergo drastic changes in short time spans,
even in times of modern technology. There is no sharp distinction between those settlements which
may be characterized as "permanent" or "natural", and those which are maintained for
administrative, scientific or other specialized purposes.
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In 1974, a national park was established in northeastern Greenland to the north of
Scoresbysund and covering large areas of the northeastern and northern coasts (see the sketch-map
in the Rejoinder, p. 19). According to the Greenland Yearbook for 1988 (Copenhagen, 1989, p. 94),
the national park is inhabited only by the crew of the three manned meteorological and scientific
stations (Station Nord, Danmarkshavn and Daneborg). These settlements are of the same character
as the station at Jan Mayen. All visits to the area require a permit from the Greenland Home Rule
Authority.
Mr. President, that concludes my examination of the factual data concerning population. In
my submission, the facts demonstrate that the conditions applicable in East Greenland are not
significantly different from those affecting Jan Mayen.
Delimitation in the context of general international law
Introduction
My next task, and my principal task, is to examine the Norwegian position in the context of
the rules and principles of general international law concerning maritime delimitation.
Three questions call for treatment by way of introduction: the legal status of the Danish
position on delimitation, the importance of title, and the geographical setting.
The Danish position on delimitation
The Danish position is stated in clear language in the Reply as follows:
"The Danish contention is that an equitable boundary line [that is the phrase used, "an
equitable boundary line"] in the waters between Greenland and Jan Mayen 'should be drawn
along the outer limit' of Greenland's fishery zone - to borrow the term used by Norway in
describing the delimitation line between Iceland and Jan Mayen, see the Counter-Memorial,
page 159, paragraph 551." (Reply, p. 152, para. 414.)
This, Mr President, is the Danish "outer limit of the 200-mile zone" principle of delimitation.
In this and other passages, the Danish Government has invoked the 200-mile outer limit as the
basis of delimitation, as the passage just quoted has it: "an equitable boundary line ..."
Mr. President, this criterion is completely unrelated to delimitation according to the pertinent
rules and principles of general international law and is equally unrelated to the jurisprudence of
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international tribunals.
It is not simply that there is no authority to support the principle: it may be admitted that
some sound principles have surfaced without having the benefit of citations. The critical point is
that, as a matter of essence, the criterion is incompatible with the concept of delimitation. In fact the
Danish Reply is helpfully candid on this subject when it explains the premises of the argument:
"Denmark bases its legal position in the present maritime delimitation dispute on the
premise that an island with the characteristics of Jan Mayen may have title to a zone, but as
regards the extent of that zone cannot generate a maritime zone which impinges on that of
Greenland. A claim of that kind by Norway could not produce an equitable solution as
required by the governing international norm for deciding maritime delimitation issues.
Consequently, the delimitation in this case must respect Greenland's 200-mile zone,
notwithstanding that Denmark/Greenland, for its part, does not question Jan Mayen's
entitlement to a territorial sea of 12 miles and an additional maritime zone of no less than
32 miles up to the 200-mile limit measured from Greenland's baseline." (Reply, p. 153,
para. 415.)
The reality is that the Danish Government has presented an argument based on entitlement, in
the eccentric mode that the Danish entitlement has a status of absolute priority, as a position relating
to delimitation.
As Norway has demonstrated in its Rejoinder, the Danish position involves the use of a
logically prior criterion which is the alleged legal inconsequence of Jan Mayen as land territory
(Rejoinder, pp. 113-116, paras. 386-395).
The importance of title
As a second preliminary issue, the Government of Norway would lay emphasis on the
significance of title.
The basis of entitlement involves a rule of international law, not an equitable principle. When
the Court in the North Sea cases rejected the German argument in favour of a system of
apportionment, the reasons for so doing were as follows:
"More important is the fact that the doctrine of the just and equitable share appears to
be wholly at variance with what the Court entertains no doubt is the most fundamental of all
the rules of law relating to the continental shelf, enshrined in Article 2 of the 1958 Geneva
Convention, though quite independent of it, - namely that the rights of the coastal State in
respect of the area of continental shelf that constitutes a natural prolongation of its land
territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over
the land, and as an extension of it in an exercise of sovereign rights for the purpose of
exploring the seabed and exploiting its natural resources. In short, there is here an inherent
right. In order to exercise it, no special legal process has to be gone through, nor have any
- 19 -
special legal acts to be performed." (I.C.J. Reports 1969, p. 22, para. 19.)
In the Aegean Sea Continental Shelf case the Court also emphasized that
"it is solely by virtue of the coastal State's sovereignty over the land that rights of exploration
and exploitation in the continental shelf can attach to it, ipso jure, under international law. In
short, continental shelf rights are legally both an emanation from and an automatic adjunct of
the territorial sovereignty of the coastal State." (I.C.J. Reports 1978, p. 36, para. 86.)
This principle has been recognized also by individual Members of this Court.
I would respectfully refer to the dissenting opinions of Judges Oda and Jennings, as they then
were, in the Italian Intervention case.
In the words of Vice-President Oda :
"The subject-matter of this case does not concern claims arising out of the alleged
breach of any obligation which one party may have accepted in relation to the other, being
thus a matter of concern only to the litigant States. No, what is really disputed between Libya
and Malta relates to titles to submarine areas. The claims concerned are thus of a territorial
nature and as such are made erga omnes. In other words, the titles established may well be
asserted not only between Libya and Malta, but as regards all other States. It will be recalled
that the essentially territorial nature of continental shelf disputes was confirmed by the Court
in its Judgment on the Aegean Sea Continental Shelf case (I.C.J. Reports 1978, paras. 86-90)
and indeed formed a main factor in that decision." (I.C.J. Reports 1984, p. 108, para. 37.)
And in the same case, Mr. President, you had occasion to make the following observation:
"In any event, a decision 'only between the competing claims of Libya and Malta', is a
somewhat novel concept of 'sovereign rights', and it is especially odd to see this enervating
bilateralism sought to be applied in respect of continental shelf rights which this Court has
stated, to 'exist ipso facto and ab initio, by virtue of [the State's] sovereignty over the land',
and that 'there is here an inherent right' (I.C.J. Reports 1969 at p. 22.)." (Ibid., p. 159,
para. 32.)
In Norway's submission the basis of entitlement, the possession of land territory, has two
related consequences.
First, the process of delimitation must not result in a substantial departure from the political
and legal benefits of the possession of sovereignty in respect of the land territory.
Secondly, the question of entitlement is governed by principles of international law and the
role of equitable principles is to avoid inequity rather than to supplant the relevant legal principles.
The Danish approach to entitlement is wholly at variance with the correct legal relationship
between the rule of entitlement and the subsidiary process of delimitation.
No doubt the Court will suspect that this argument contains the usual elements of circularity
- 20 -
or at least leaves open the crucial question of balancing one element (entitlement ipso facto) with
another (the need for equitable delimitation).
Thus it cannot be asserted that legal entitlement is per se equitable; this was indeed
established in the Tunisia/Libya case (I.C.J. Reports 1982, p. 46, para. 44; p. 48, para. 48; p. 59,
para. 70).
But it does not follow that the opposite is true and that equitable principles can be considered
altogether in isolation, as you, Mr. President, noted in a study published in the Annuaire Suisse in
1986 (Vol. 42, 1986, p. 27 at p. 32).
This proposition (that equitable principles cannot be considered in isolation) is one of the
major elements of legal principle emanating from the decision of 1969.
Referring to the Tunisia/Libya decision the President expressed the matter in the Annuaire
Suisse as follows:
"One can only sympathise with the Court in finding the concept of the natural
prolongation unhelpful where there was in fact continuous shelf between the two States whose
shelves were to be delimited. Yet the Court, in rejecting the Libyan identification of natural
prolongation and equity, cannot have meant that it could consider equitable principles
altogether in isolation. For that would have been in effect to reverse its decision in the 1969
Judgment that there could be no possible question of an equitable apportionment irrespective
of legal entitlement; and indeed it would also have been to call in question its dictum in that
case that, since the shelf belonged ipso facto and ab initio, the only area that equitable
principles could be concerned with was the 'disputed marginal or fringe area' between legal
entitlements (para. 20)." (Loc. cit.)
In my submission what emerges is the requirement that any process of delimitation must give
full faith and credit to the basis of title. And this requirement is reinforced when the coasts involved
form part of the geographical framework and do not relate to incidental special features.
The Geographical Setting
I can now move to the final part of my preliminary agenda, the geographical setting.
The Court may find it convenient to refer to the first Figure in the dossier (Figure 9).
Jan Mayen is situated in the oceanic expanses east of Greenland, in an oceanic region forming
a vast portal between the Atlantic and the Arctic Oceans. There is no single toponym for this
oceanic area but it includes three seas: the Norwegian Sea, the Greenland Sea and the Barents Sea -
the Norwegian Sea is over here on this side of Jan Mayen, the Barents Sea is well up here, and the
- 21 -
Greenland Sea is up there - but there is no substantial mainland near Jan Mayen. So we have a
series of seas - the Norwegian Sea, the Greenland Sea up here and the Barents Sea, which is well
over to the east of Svalbard. Then there are extensive sea areas here with no particular designation,
in, for example, the areas east of Jan Mayen.
As Denmark has pointed out in the written pleadings, Jan Mayen is geographically isolated. It
is 254 nautical miles from the nearest Greenland coast, 300 nautical miles from Iceland and
550 nautical miles from the nearest Norwegian coast.
To the east of Jan Mayen there is a substantial sector of ocean lying well outside the 200-mile
radius from any coast.
The key features of the region are its openness and the absence of occluding features. The
links with the Atlantic and Arctic Oceans do not take the form of narrow passages but substantial
maritime lobbies larger than the North Sea. Thus the link with the Arctic Ocean is the Fram Strait,
300 nautical miles in breadth. The links with the Atlantic Ocean take the form of the Denmark
Strait, 250 nautical miles in breadth, and the sea area between Iceland and the Faroes which has no
particular designation.
The sea area within a radius of, say, 300 miles around Jan Mayen has absolutely no occluding
features of any kind. The geographical setting is extrovert. There is in simple terms a juxtaposition
of two features, Jan Mayen and East Greenland, which stand independently. In particular, it cannot
be said that they form part of a geographical context the existence of which creates a significant
interaction between the two features. There is thus, in our submission, no similarity whatsoever with
the situation in the Central Mediterranean as seen by the Court in the Libya/Malta case
(I.C.J. Reports 1985, p. 50, para. 69).
In so far as there is a geographical framework, the essential elements comprise the coast of
East Greenland and the coast of Jan Mayen.
Norway's position on delimitation in the context of general
international law
That completes my examination of preliminary issues and I shall now outline Norway's
- 22 -
position on delimitation in the context of general international law.
The first task is to indicate the legal and geographical framework. This involves deciding
which is "the geographical area directly concerned" in the delimitation. This was the formula
favoured by the Chamber in the Gulf of Maine case (I.C.J. Reports 1984, p. 268, para. 28; and see
also p. 272, para. 41).
Similarly, in the Anglo-French case the Court of Arbitration stated that "the method of
delimitation which it adopts for the Atlantic region must be one that has relation to the coasts of the
Parties actually abutting on the continental shelf of that region" (Decision, para. 248; emphasis
added).
On this basis the key geographical relationship of the present dispute consists of the
opposite-facing frontages of Greenland and Jan Mayen.
In Norway's submission there is no geographical intimacy involved and the relationship
consists of the neutral elements of distance and juxtaposition.
Jan Mayen, with a western facing façade 53.6 kilometres in length, is 254 nautical miles from
Greenland. Its northern, eastern and southern coastlines also front upon extensive areas of high seas.
It is normal for tribunals to establish a provisional or primary boundary which reflects the
primary geographical relationship and which may be subject to a process of modification in
appropriate circumstances.
This method was applied in the Anglo-French case (Decision, paras. 87 and 103), by the
Chamber in the Gulf of Maine case, (paras. 216-223) and by the full Court in the Libya/Malta case
(para. 60). It is perhaps obvious that it is particularly suited to coastal configurations with elements
of oppositeness.
In passing I would refer to Professor Bowett's contention that in the Libya/Malta case "the
provisional median line, used by the Court in that case, was never used as a provisional boundary"
(CR 93/4, p. 11). In my submission, this appears to be a distinction without a real difference. In
explaining its approach the Court stated:
"In applying the equitable principles thus elicited, within the limits defined above, and
in the light of the relevant circumstances, the Court intends to proceed by stages; thus, it will
first make a provisional delimitation by using a criterion and a method both of which are
- 23 -
clearly destined to play an important role in producing the final result; it will then examine this
provisional solution in the light of the requirements derived from other criteria, which may call
for a correction of this initial result." (I.C.J. Reports 1985, p. 46, para. 60.)
This seems sufficiently clear and I shall resume my theme. In the Libya/Malta case the Court
drew a provisional median line boundary and in doing so referred to the principle of equal division
(ibid. paras. 62-63).
In the case of opposite States equal division is the appropriate method of delimitation, and this
was recognized in clear terms in the Judgments in the North Sea cases.
In the words of the Court:
"Before going further it will be convenient to deal briefly with two subsidiary matters.
Most of the difficulties felt in the International Law Commission related, as here, to the case
of the lateral boundary between adjacent States. Less difficulty was felt over that of the
median line boundary between opposite States, although it too is an equidistance line. For this
there seems to the Court to be good reason. The continental shelf area off, and dividing,
opposite States, can be claimed by each of them to be a natural prolongation of its territory.
These prolongations meet and overlap, and can therefore only be delimited by means of a
median line; and, ignoring the presence of islets, rocks and minor coastal projections, the
disproportionally distorting effect of which can be eliminated by other means, such a line must
effect an equal division of the particular area involved." (I.C.J. Reports 1969, p. 36,
para. 57.)
This principle of equal division was also recognized by the Court in the Libya/Malta case (I.C.J.
Reports 1985, p. 47, para. 62; and the Court quoted the passage from the North Sea cases).
In the Gulf of Maine case the Chamber gave great prominence to the principle of equal
division in a dispute in which the legal interest in the water column had special significance. In the
words of the Chamber:
"To return to the immediate concerns of the Chamber, it is, accordingly, towards an
application to the present case of criteria more especially derived from geography that it
feels bound to turn. What is here understood by geography is of course mainly the
geography of coasts, which has primarily a physical aspect, to which may be added, in
the second place, a political aspect. Within this framework, it is inevitable that the
Chamber's basic choice should favour a criterion long held to be as equitable as it is
simple, namely that in principle, while having regard to the special circumstances of
the case, one should aim at an equal division of areas where the maritime projections of
the coasts of the States between which delimitation is to be effected converge and
overlap." (I.C.J. Reports 1984, p. 327, para. 195.)
The principle or criterion of equal division is referred to in nine other passages in the
Judgment of the Chamber in the Gulf of Maine case (I.C.J. Reports 1984, pp. 300-301, para. 115;
pp. 312-313, para. 157; p. 328, para. 197; pp. 329-33-, para. 201; pp. 331-332, para. 209;
- 24 -
p. 332, para. 210; pp. 332-333, para. 212; p. 333, para. 213; p. 334, para. 217.)
As the jurisprudence always insists, it is geography which prescribes the mode of delimitation
and, in the present case, the result is to confirm the median line division already ordained by the
agreement of the Parties.
The modus operandi which involves the establishment of a primary boundary and the
application of the principle of equal division includes the condition that the median line may be
subject to a process of modification or correction to take into account any sources of inequity.
In the submission of Norway, there are no legal grounds which would sanction the
modification of the median line in this case.
And in the alternative, it is submitted that any process of modification must, in any case, be
compatible with the legal basis of entitlement, which is governed by a principle of international law
which cannot be nudged aside by the operation of equitable principles. Any lawful modification has,
in consequence, to be limited in scale.
But it is Norway's primary submission that there is no legal basis for modification, of any
kind, of the median line and, with your permission, Mr. President, I shall elaborate on this
submission.
It is Norway's contention that the procedure of modification is compatible with legal principle
only in three types of situation, none of which relates to the case of Jan Mayen.
First, the procedure of modification may apply when there are:
(a) Incidental special features within a geographical situation of
quasi-equality
The passage from the Judgment in the North Sea cases states very clearly that the abating of
the effects of an "incidental special feature" can take place only if there is "a geographical situation
of quasi-equality as between a number of States". Thus there could be no question "of rendering the
situation of a State with an extensive coastline similar to that of a State with a restricted coastline".
The Court explains further: "Equality is to be reckoned within the same plane, and it is not such
natural inequalities as these that equity could remedy".
In accordance with this approach international tribunals have, when the facts allowed,
- 25 -
determined the existence of geographical situations of quasi-equality. In the North Sea cases, the
quasi-equality took the form of "three States whose North Sea coastlines are in fact comparable in
length and which, therefore, have been given broadly equal treatment by nature..." (I.C.J. Reports
1969, pp. 49-50, para. 91).
In the geographical circumstances of the present case there is no "geographical situation of
quasi-equality as between a number of States". Jan Mayen is an independent feature 254 nautical
miles east of Greenland and surrounded by extensive areas of high seas. There is no geographical
norm of quasi-equality, but merely a relationship of juxtaposition and distance. There is geography
but there are no "incidental special features".
Jan Mayen and Greenland are two islands whose relative locations are characterized by a
relationship of pure juxtaposition and distance. There is no complicated geography; there are no
external features in relation to which Jan Mayen is incidental. Jan Mayen itself constitutes one of
the two main features which constitute the geographical setting.
Second, modification may take place if account can be taken of:
(b) The general geographical context
In the Libya/Malta case, the Court gave a certain weight to the position of Malta as a group of
islands "in the wider geographical context, particularly their position in a semi-enclosed sea"
(I.C.J. Reports 1985, p. 42, para. 53). This consideration was later elucidated in the following
passage from the Judgment:
"In the present case, the Court has also to look beyond the area concerned in the case,
and consider the general geographical context in which the delimitation will have to be
effected. The Court observes that delimitation, although it relates only to the continental shelf
appertaining to two States, is also a delimitation between a portion of the southern littoral and
a portion of the northern littoral of the Central Mediterranean. If account is taken of that
setting, the Maltese islands appear as a minor feature of the northern seaboard of the region in
question, located substantially to the south of the general direction of that seaboard, and
themselves comprising a very limited coastal segment. From the viewpoint of the general
geography of the region, this southward location of the coasts of the Maltese islands
constitutes a geographical feature which should be taken into account as a pertinent
circumstance; its influence on the delimitation line must be weighed in order to arrive at an
equitable result." (I.C.J. Reports 1985, p. 50, para. 69.)
The emphasis is upon the particular character of "the general geographical context", which
locution appears also in paragraph 73 of the Judgment, and especially upon the position of Malta in
- 26 -
a semi-enclosed sea (ibid.). The emphasis, therefore, is upon that particular character of "the
general geographical context".
The situation of Jan Mayen is the polar opposite. The political claustrophobia of the Central
Mediterranean is completely unlike the situation of Jan Mayen in a general context characterized by
unconfined oceanic expanses and by openness rather than semi-enclosure.
(c) The presence of small islands close to the median line or
located in such a way as to cause distortion
The third category of case in which modification may be justified consists of cases in which
islands not forming part of the primary geographical relationships lie near the median line or are
otherwise located in such a way as to cause distortion of the primary boundary.
When an island is located in such a way that allowing it to have full effect would cause an
unreasonable distortion of the primary boundary dictated by the dominant geographical relationships,
then such an island will be given special treatment. This is exemplified, in the case of continental
shelf delimitation, by the treatment of the Scilly Islands in the Decision of the Court of Arbitration in
the Anglo/French case (paras. 248-251). In the context of multi-purpose delimitation the practice is
well illustrated by the treatment of Seal Island by the Chamber of the Court in the Gulf of Maine
case (I.C.J. Reports 1984, p. 336, para. 222).
The treatment of the Channel Islands in the Anglo-French case is also essentially an example
of this class of delimitation, because it was essentially their location in relation to the primary
boundary which occasioned their disadvantage (see the Decision, paras. 187-201).
The legal sources envisage modification resulting from minor features within some larger
context. The relevant passages in the North Sea cases refer to "the presence of islets, rocks and
minor coastal projections" and to "an incidental special feature" (I.C.J. Reports 1969, p. 36,
para. 57; pp. 49-50, para. 91; respectively).
In the present case Jan Mayen forms a necessary part of the geographical context within
which delimitation takes place and it cannot, in legal terms, constitute an "incidental special feature".
The relevance of political factors
- 27 -
As the Chamber pointed out in its Judgment in the Gulf of Maine case the geography of coasts
has a political as well as a physical aspect (I.C.J. Reports 1985, p. 327, para. 195). The principle of
equal division thus has a political dimension and the origin of the equitable principles lies in the need
to maintain the substance of equality of sovereign entitlements in face of geographical subtleties. In
the Anglo-French case the Court of Arbitration referred compendiously to the conclusions "indicated
by the geographical, political and legal circumstances of the region which the Court has identified"
(Decision, para. 188).
In this connection it is obvious that Jan Mayen does not involve an intrusion into an area
surrounded by the coasts of Greenland similar to the position of the Channel Islands within the
Golfe Breton-Normand. In fact the median line boundary encompasses a zone comprising only
2.9 per cent of the Greenland 200-mile zone.
Other relevant factors
It is Norway's further submission that the equitable character of the median line is confirmed
by other relevant factors, and in particular by the substantial interest which Norway has in the
Jan Mayen maritime region and by the protective or security interest which Norway has in relation to
the maritime areas and resources controlled and protected on the basis of Norway's sovereignty over
Jan Mayen.
In this connection Norway would emphasize that the existence of such interests must create a
strong presumption against a delimitation which produces an imbalance. The jurisprudence of
international tribunals supports this view, and it is recognized that a coastal State should be
permitted to control the maritime territory adjacent to its coasts. Nowhere is the concept of equality
more potent than in the context of the security interest of the coastal State.
The conduct of the Parties
A further important element relevant to equitable delimitation is the consistent conduct of the
Parties. The learned Agent of Norway, Mr. Haug, has already addressed the Court on those aspects
of conduct which provide a consensual basis for a delimitation based upon the median line, with
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particular reference to recognition and acquiescence.
My present purpose is to invoke the conduct of the Parties as a relevant circumstance for the
purpose of delimitation in accordance with general international law. It is well-recognized that the
conduct of the parties to a dispute may be taken into account in achieving an equitable solution. In
the Judgment in the Tunisia/Libya case the Court observed:
"and it is evident that the Court must take into account whatever indicia are available of the
line or lines which the Parties themselves may have considered equitable or acted upon as
such - if only as an interim solution affecting part only of the area to be delimited"
(I.C.J. Reports 1982, p. 84, para. 118).
This principle is surely no less significant in a case brought by unilateral application.
The evidence of the consistent conduct of the Parties has been reviewed elsewhere in the
pleadings (Counter-Memorial, paras. 528-560; Rejoinder, paras. 270-338) and it is necessary only
to point to certain salient questions.
Denmark, like Norway, recognized in its national legislation that, in the absence of agreement,
the boundary of the continental shelf in relation to other States abutting on the same shelf is the
median line.
This solution was adopted in the Danish Royal Decree of 7 June 1963 (Norwegian Annex 22),
and was maintained both in Danish and Norwegian legislation until 1980 in relation both to shelf
and to fisheries zone legislation.
Two features are particularly striking. In the first place, the provisions of the Danish Decree
of 1963 adopted the legal principles set forth in the Continental Shelf Convention of 1958, Article 6.
They were adopted as principles and without qualification. The declaratory nature of the Decree
was recognized and confirmed by the Danish Government in its Counter-Memorial in the North Sea
Continental Shelf cases (I.C.J. Pleadings, North Sea Continental Shelf, Vol. I, pp. 161-162;
quoted in Rejoinder, para. 290).
In the Counter-Memorial prepared in 1968 it is stated that: "The Decree comprises the
continental shelf around Denmark proper as well as around Greenland and the Faroe Islands."
The second feature is the consistency of the Danish position over a period of 17 years and the
fact that this position only began to change at the stage when the dispute was crystallizing, and then
- 29 -
only in relation to Jan Mayen.
In his intervention on behalf of Denmark, Mr. Magid did not contradict the picture presented
in Norway's written pleadings. According to Mr. Magid it was only in March 1979 that the first
doubts emerged (CR 93/3, pp. 22, 24-25).
The relevant document is the Note dated 3 July 1979 from the Danish Foreign Minister to
Mr. Frydenlund, the Norwegian Foreign Minister (Memorial, Ann. 3). In this Note the Danish
Minister states:
"As you will know, the extension of the Danish fishing territory as of 1 January 1977
did not include the area north of latitude 67° N off the east coast of Greenland. One of the
reasons for this was that Denmark did not want to bring into focus of attention some legal
problems with regard to the delimitation of the maritime zones between Greenland and Iceland
(Kolbeinsey).
Moreover we found that since Norway had not at that time established an economic
zone around Jan Mayen, the question of delimitation between that Island and Greenland was
not either of immediate concern. However, you will recall that during the Meeting of the
Nordic Foreign Ministers at Copenhagen in March of this year we informed your delegation
confidentially that Denmark would make reservations if Norway established for Jan Mayen an
economic zone delimited by a median line in relation to Greenland."
There is a final paragraph which is not material for present purposes.
This document refers only in general terms to the possibility that Denmark "would make
reservations". Moreover, there is no reference to a Danish claim or a possibility of a Danish claim
based upon an outer limit of 200 miles. The final paragraph confirms that the Danish Government
had no expectation that the negotiations between Iceland and Norway would produce a settlement
based upon the 200-mile outer limit. This alleged principle of delimitation was only offered by
Denmark when the Memorial was presented in July 1989.
Of special significance in this connection is the Danish Executive Order of 14 May 1980
concerning the "fishing territory in the waters surrounding Greenland" (Norwegian Annex 38). In
respect of the position between Jan Mayen and Greenland the Executive Order provides
(Section 1 (4)) that "jurisdiction of fisheries shall not, until further notice, be exercised" beyond the
median line. No doubt the wording indicates an interim régime, but even as such it contradicts the
200-mile principle appearing nine years later in Denmark's written pleadings. And it is necessary to
recall the statement of the Court in the Libya/Tunisia case that the Court must take into account
- 30 -
whatever indicia are available "of the line or lines which the Parties themselves may have considered
equitable or acted upon as such if only as an interim solution affecting part only of the area to be
delimited".
Naturally Norway does not accept that the median line only had the status of an interim
régime.
The significance of islands as a category
In completing my exposition of the Norwegian position in relation to general international law,
I would respectfully remind the Court of the difference emerging from the written pleadings in
respect of the significance of islands as a discrete legal category in maritime delimitation. The
Norwegian position has been set forth sufficiently in the written pleadings (Counter-Memorial,
pp. 133-137; Rejoinder, pp. 121-139).
At this stage I would indicate only three significant points.
The first is this. The Danish approach asserts that islands as such suffer from a categorical
legal disability. The reality is that it is the geographical features as an ensemble in any situation
which are decisive and not merely the presence of one or more islands.
The second point is that the critical factor for legal purposes is whether or not the island forms
a part of the primary geographical relationships involved.
The third significant point is that it is only islands which do not constitute main elements in
the geographical relationship which are accorded special treatment in the jurisprudence and in the
practice of States.
The special treatment given to islands which do not form part of the main geographical
elements is not evidence - as Denmark tends to assume - of the status of islands as second class
elements in the delimitation picture. Even when islands form incidental features the effect they are
given is still relatively speaking significant rather than insignificant. Thus in the Gulf of Maine
case, the effect given to Seal Island was only "half effect", but in reality this had a major impact on
the incidence of the second and third sectors of the line established by the Chamber - as the Court
appreciates, the most important elements (I.C.J. Reports 1984, pp. 336-337, para. 222). The
- 31 -
importance of Seal Island was based on its "commanding position in the entry to the Gulf"; and the
outcome of that reference was a transverse displacement of the central segment of the delimitation,
surely a highly significant effect.
Mr. President, it would help me if we could break there, if that is convenient.
The PRESIDENT: Thank you, Professor Brownlie, we will take our break now. Thank you.
The Court adjourned from 11.15 to 11.30 a.m.
- 32 -
The PRESIDENT: Professor Brownlie.
Mr. BROWNLIE:
The problem of equality in maritime delimitation and the lengths of
coasts question
I have completed my exposition of the overall Norwegian position in the context of general
international law.
What I have said so far very much reflects the argument as presented in the written pleadings,
and my intention now, Mr. President, is to rework that argument from two points of view.
The first aspect will be the problem of equality in maritime delimitation and the second will be
the construction of the relevant State practice.
And thus the first task is to examine the concept of equality in maritime delimitation with
particular reference to the relevance of lengths of coasts.
By way of introduction, I have to indicate that, whilst much of what I shall say relates to
continental shelf delimitation, the argument will be applicable also to the delimitation of adjoining
fisheries zones.
My purpose will be not to ask the Court to change the foundations of the existing law but to
suggest respectfully that the existing foundations leave certain matters less than fully resolved.
In short, it is still necessary to enquire as to the real content of the equitable principles which
are so often applied without very much elaboration.
It is true that the Court and various Arbitral Tribunals have evolved an impressive
jurisprudence of maritime delimitation. But candour requires recognition of the obscurity in which
the concept of equality remains in spite of the decisions.
The decisions after all frequently show a reluctance to probe behind the phraseology of
"equitable criteria" or "equitable principles". In the Gulf of Maine case the Chamber insisted on
retaining a very high degree of flexibility.
In one passage, for example, the Chamber stated:
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"The Chamber is, furthermore, convinced that for the purposes of such a delimitation
operation as is here required, international law, as will be shown below, does no more than lay
down in general that equitable criteria are to be applied, criteria which are not spelled out but
which are essentially to be determined in relation to what may be properly called the
geographical features of the area." (I.C.J. Reports 1984, p. 278, para. 59.)
And later on the Chamber appears to go further when it states:
"Each Party's reasoning is in fact based on a false premise. The error lies precisely in
searching general international law for, as it were, a set of rules which are not there." (Ibid.,
p. 298, para. 110.)
With all due respect the pronouncements of the full Court in the Libya/Malta case also show a
tendency to reproduce familiar formulations about "equitable principles" which, though familiar, are
more than a little opaque and question-begging (see especially I.C.J. Reports 1985, pp. 38-40,
paras. 45-48.
Moreover, the Judgment in the Libya/Malta case may be thought to contain certain elements
which indicate a need for caution in translating the modus operandi adopted in the decision to other
geographical situations.
First, the "general geographical context" was taken into account, this involving the view that
"the Maltese islands appear as a minor feature of the northern seaboard of the region in question"
(I.C.J. Reports 1985, p. 50, para. 69; and see also p. 42, para. 53).
The second element is the rejection of Libya's reliance upon the greater landmass argument
(I.C.J. Reports 1985, pp. 40-41, para. 49). This had been a major Libyan argument and its rejection
thus may be said to have considerable weight.
But the peculiarity in the Judgment is the co-existence of the rejection of the landmass
argument and the acceptance of other factors which reduced Malta's entitlement by 18 nautical
miles.
These other factors, in our submission, involve landmass thinking. The first such factor,
already referred to, was the appearance of the Maltese islands as "a minor feature of the northern
seaboard of the region in question" (I.C.J. Reports 1985, p. 50, para. 69).
The second factor was the disparity in the lengths of coasts treated as a relevant circumstance
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(I.C.J. Reports 1985, pp. 48-50, paras. 66-68). With great respect, this factor appears to be a close
relative of the landmass argument. As I hope to demonstrate in due course, the comparative lengths
of coasts is irrelevant to the achievement of equality of treatment of the parties in delimitation, and
indeed reference thereto may create substantial inequality.
Against this background, it is necessary to look again at the concept of equality in the context
of delimitation.
It is the concept of equality which should be the focus, because the so-called equitable
principles are surely intended to achieve a régime of equality.
The term "equality" calls for clarification and this can be found without too much trouble.
In the North Sea cases, the Court's reasoning implies the objective of equality though it is
obscured somewhat by the greater emphasis on natural prolongation and the principle of
non-encroachment (Dispositif, para. 101(C) (1) and (2)).
At any rate it is reasonably clear that the purpose of the application of "equitable principles" is
a result which is "just, and therefore in that sense equitable" (I.C.J. Reports 1969, p. 48, para. 88).
As the Court in the North Sea cases also states: "The delimitation itself must indeed be equitably
effected" (ibid., p. 22, para. 20).
And by way of parenthesis, it can now be assumed that it will only be in very exceptional
circumstances that the geological or geomorphological characteristics of sea-bed areas will be
relevant to continental shelf delimitation.
In general, however, the decisions provide no precise guidance on the content of equality.
The indicators which have emerged from the jurisprudence tend to be purely negative. Thus,
the principle of equidistance does not and was never intended to produce an equal division of area
except in the exceptional case in which two opposite coasts have exactly similar configurations.
Otherwise, there are the familiar statements of the need to remedy:
"the disproportionality and inequitable effects produced by particular geographical
configurations or features in situations where otherwise the appurtenance of roughly
comparable attributions of continental shelf to each State would be indicated by the
geographical facts" (Anglo-French case, Decision, para. 101.)
- 35 -
Another source of assistance, in our view, may be seen in the relation between the basis of title
and delimitation.
On behalf of Norway, I have already argued the importance of title. It would not only be an
affront to the principle of equality but to ordinary logic, if the process of delimitation could result in
a substantial departure from the normal entitlement to maritime areas appurtenant to land territory.
One of the fundamental propositions in the Judgment in the North Sea cases was that there
could be no question of an equitable apportionment irrespective of legal entitlement.
The relevant passage is as follows:
"It follows that even in such a situation as that of the North Sea, the notion of
apportioning an as yet undelimited area, considered as a whole (which underlies the doctrine
of the just and equitable share), is quite foreign to, and inconsistent with, the basic concept of
continental shelf entitlement, according to which the process of delimitation is essentially one
of drawing a boundary line between areas which already appertain to one or other of the
States affected. The delimitation itself must indeed be equitably effected, but it cannot have as
its object the awarding of an equitable share, or indeed of a share, as such, at all - for the
fundamental concept involved does not admit of there being anything undivided to share out.
Evidently any dispute about boundaries must involve that there is a disputed marginal or
fringe area, to which both parties are laying claim, so that any delimitation of it which does
not leave it wholly to one of the parties will in practice divide it between them in certain
shares, or operate as if such a division had been made." (I.C.J. Reports 1969, P. 22, para. 20.)
This logic is especially compelling in the context of shelf rights where there is "an inherent
right" as the North Sea cases Judgment indicates in an adjacent paragraph (I.C.J. Reports 1969,
p. 22, para. 19).
It is to be recalled that in the Libya/Malta case the Court recognized the significance of the
relation between title and delimitation when it observed that there was no reason "why a factor which
has no part to play in the establishment of title should be taken into account as a relevant
circumstance for the purpose of delimitation" (I.C.J. Reports 1985, p. 35, para. 40).
This passage related to the relevance of geophysical characteristics.
The Court returned to the theme in relation to the greater landmass argument and, rejecting
this argument the Court observed:
"It was argued by Libya that the relevant geographical considerations include the
landmass behind the coast, in the sense that that landmass provides in Libya's view the factual
basis and legal justification for the State's entitlement to continental shelf rights, a State with a
greater landmass having a more intense natural prolongation. The Court is unable to accept
this as a relevant consideration. Landmass has never been regarded as a basis of entitlement
to continental shelf rights, and such a proposition finds no support in the practice of States, in
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the jurisprudence, in doctrine, or indeed in the work of the Third United Nations Conference
on the Law of the Sea. It would radically change the part played by the relationship between
coast and continental shelf. The capacity to engender continental shelf rights derives not from
the landmass, but from sovereignty over the landmass; and it is by means of the maritime front
of this landmass, in other words by its coastal opening, that this territorial sovereignty brings
its continental shelf rights into effect. What distinguishes a coastal State with continental
shelf rights from a landlocked State which has none, is certainly not the landmass, which both
possess, but the existence of a maritime front in one State and its absence in the other. The
juridical link between the State's territorial sovereignty and its rights to certain adjacent
maritime expanses is established by means of its coast. The concept of adjacency measured
by distance is based entirely on that of the coastline, and not on that of the landmass." (I.C.J.
Reports, 1985, pp. 40-41, para. 49.)
The Court has had that passage before and, of course, the Court on Libya/Malta very
carefully rejected the greater landmass argument.
There is in all this an abiding tension between entitlement and delimitation. It cannot be
argued that entitlement is per se equitable: but, at the same time, it is, in principle, unacceptable that
delimitation should result in a radical truncation of normal entitlements based upon adjacency. The
principle of non-encroachment, itself always recognized as an equitable principle, is a reflection of
this logic.
The basic concepts by which delimitation is governed
What, then, are the operational elements lying behind the delimitation process?
The basic concepts appear to be as follows:
Firstly, it is coasts which form the basis of title, both to areas of continental shelf and to
fishery zones.
Secondly, there is the concept of a maritime boundary, of whatever type, as an alignment
based upon legal principles, the application of which confirms the existence and extent of the coastal
State's legal interest. In other words, a boundary is the spatial expression of the concept of title.
The legal framework
Thirdly, it is the relationship of coasts which establishes the geographical setting which
constitutes the legal framework of the process of delimitation. All the decisions of international
tribunals since the North Sea cases adopt this approach.
The legal framework may contain one or more of a variety of elements, as follows:
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(a) The predominant features may vary considerably in geographical
terms. Thus the framework of coasts may be introvert and relatively secluded, as in the case
of the central Mediterranean, the North Sea, and the Gulf of Maine. Alternatively, the
geography may be characterized mainly by "open" or extrovert features, as in the case of the
sea areas north of Iceland.
(b) The geographical framework may include political elements which
intimately affect the legal relevance of geography. The best-known example is the existence
of a land frontier intersecting a coast or, as in the North Sea cases, the juxtaposition of a
series of coastlines of different States.
(c) The relationship between the given coast and the appurtenant sea
areas will vary. In the case of certain islands and island groups, the maritime areas may be of
greater significance than the island, or coast, itself. Consequently, it is completely
question-begging to discuss the economic or other significance of the island, or coast, as such.
It is the interaction of coast and maritime areas, and that has been illustrated, in a legal
context, by the well-reasoned decision in the Anglo-Norwegian Fisheries case,
(I.C.J. Reports 1951, p. 116).
It must follow that, in the case of isolated groups of islands or island groups, reference to the
length of coasts is a particularly inappropriate index of geographical significance.
The fourth concept is the broad policy behind the process of delimitation which is based on
the concept of equality or equitable delimitation.
The logical consequence of this policy of equality is the use of the principle of equal division
as the basis of delimitation.
The Chamber in the Gulf of Maine case adopted this principle as the "basic criterion" (para.
196). In the words of the Judgment:
"To return to the immediate concerns of the Chamber, it is, accordingly, towards an
application to the present case of criteria more especially derived from geography that it feels
bound to turn. What is here understood by geography is of course mainly the geography of
coasts, which has primarily a physical aspect, to which may be added, in the second place, a
political aspect. Within this framework, it is inevitable that the Chamber's basic choice should
favour a criterion long held to be as equitable as it is simple, namely that in principle, while
having regard to the special circumstances of the case, one should aim at an equal division of
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areas where the maritime projections of the coasts of the States between which delimitation is
to be effected converge and overlap." (I.C.J. Reports 1984, p. 327, para. 195.)
No doubt this principle was to be applied flexibly (see ibid., para. 196) but equal division was
the basic policy.
And equal division has its origin in the well-known passage in the Judgments in the North Sea
cases:
"Before going further it will be convenient to deal briefly with two subsidiary matters.
Most of the difficulties felt in the International Law Commission related, as here, to the case
of the lateral boundary between adjacent States. Less difficulty was felt over that of the
median line boundary between opposite States, although it too is an equidistance line. For this
there seems to the Court to be good reason. The continental shelf area off, and dividing,
opposite States, can be claimed by each of them to be a natural prolongation of its territory.
These prolongations meet and overlap, and can therefore only be delimited by means of a
median line; and, ignoring the presence of islets, rocks and minor coastal projections, the
disproportionally distorting effect of which can be eliminated by other means, such a line must
effect an equal division of the particular area involved..." (I.C.J. Reports 1969, p. 36,
para. 57.)
That passage was itself cited with approval by the Chamber in the Gulf of Maine case (I.C.J.
Reports 1984, pp. 329-30, para. 201), and was also adopted by the Decision of the Court of
Arbitration in the Anglo/French case (para. 85; and see also para. 239).
The principle of equal division is very probably no more than a general principle aiming at a
general legal equality. But if it be taken literally, it appears to assume that the principle of the
median line is based on areas, whereas it is in truth based upon proximity.
As the President has had occasion to point out in an essay published in 1989 and with
reference to the Gulf of Maine Judgment:
"Incidentally, this part of the Judgment unfortunately repeats the common fallacy that
the median line method 'is an equal division of the areas of overlap of the continental shelves
of the two litigant States'. This is of course to misapprehend what a median line is and how it
is constructed. It has nothing to do with equal division of area (unless indeed the opposite
coasts be mirror images of each other)." (Festschrift für Karl Doehring, Heidelberg, 1989,
p. 408, fn. 25.)
The distinguished Vice-President has made the same point in his dissenting opinion in the
Tunisia/Libya case (I.C.J. Reports 1982, p. 258, para. 161).
The same view is expressed in the ninth edition of Oppenheim's International Law. In relation
to the passage in the North Sea cases, paragraph 57, the editors offer the following commentary:-
"In para. 57 of the Judgment is a passage in which the Court appears to be saying that,
- 39 -
unlike a lateral boundary between adjacent States, there is less difficulty over a median line
between 'opposite States' because, 'ignoring the presence of islets, rocks and minor coastal
projections, the disproportionately distorting effect [on the course of a median line] of which
can be eliminated by other means, such a line must effect an equal division of the particular
area involved.' [And the editors continue] But of course, except in the unlikely case of
exactly corresponding coastlines, a median line never does effect an equal division of areas,
nor does it seek to do so. The principle of the median, as with any equidistance line, is not
based on areas, but on proximity." (Oppenheim's International Law, Vol. I, p. 779, fn. 10.)
The criterion of distance or principle of adjacency
It is submitted that in the absence of any incidental features producing distorting effects, the
criterion of distance has a commanding role and this was recognized, at least in principle, by the
Court in the Libya/Malta case (I.C.J. Reports 1985, pp. 46-47, para. 61).
The relevant passages refer particular to the Court producing a provisional delimitation based
on equal division and the median line.
In the words of the Court:
"60. In applying the equitable principles thus elicited within the limits defined above,
and in the light of the relevant circumstances, the Court intends to proceed by stages; thus, it
will first make a provisional delimitation by using a criterion and a method both of which are
clearly destined to play an important role in producing the final result; it will then examine
this provisional solution in the light of the requirements derived from other criteria, which may
call for a correction of this initial result.
61. The Court has little doubt which criterion and method it must employ at the outset
in order to achieve a provisional position in the present dispute. The criterion is linked with the
law relating to a State's legal title to the continental shelf. As the Court has found above, the
law applicable to the present dispute, that is, to claims relating to continental shelves located
less than 200 miles from the coasts of the States in question, is based not on geological or
geomorphological criteria, but on a criterion of distance from the coast or, to use the
traditional term, on the principle of adjacency as measured by distance. It therefore seems
logical to the Court that the choice of the criterion and the method which it is to employ in the
first place to arrive at a provisional result should be made in a manner consistent with the
concepts underlying the attribution of legal title." (I.C.J. Reports 1985, pp. 46-47.)
The concepts of distance and adjacency, if they are to be taken seriously, are all expressions
of the qualitative idea of equality. The median line and equidistance are, of course, expressions of
the same idea.
These concepts of distance and adjacency are surely ideal tools for relating delimitation to
geography and for avoiding both distributive justice and the vices of equidistance, or the assumed
vices of equidistance.
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The principle of non-encroachment
The principle of adjacency is reinforced by the principle of non-encroachment, which was
given a significant role by the Court in the North Sea cases (I.C.J. Reports 1969, p. 31, para. 44;
pp. 46-47, para. 85; p. 49, para. 89; p. 53, para. 101(C)).
With your permission, Mr. President, I would remind the Court of the classical formulation in
the Dispositif of the Judgment in the North Sea cases. There, the first of the "principles and rules of
international law" declared in the Dispositif to be applicable to shelf delimitation was prescribed by
the Court in the following terms:
"(1) delimitation is to be effected by agreement in accordance with equitable principles,
and taking account of all the relevant circumstances, in such a way as to leave as much as
possible to each Party all those parts of the continental shelf that constitute a natural
prolongation of its land territory into and under the sea, without encroachment on the natural
prolongation of the land territory of the other; ..."
Mr. President, the principle of non-encroachment obviously plays an important role in the
North Sea cases and forms a leading element in the law of delimitation.
All this may seem obvious but in ten and half hours of interventions last week the Danish
delegation omitted to make a single reference to that principle.
Mr. President, this is rather like describing Japan without referring to Kyoto, referring to
Rome without describing the Coliseum, or describing Paris without any reference to the Eiffel
Tower. And the omission is the less defensible when it was the Applicant State which has insisted
that the only applicable law in this case is general international law.
It is clear that in the present case the Danish claim would produce a substantial encroachment
or cut-off in relation to the entitlement of Jan Mayen.
In the case of opposite coasts the equidistance principle avoids the problem of cut-off with
which the Court was preoccupied in the North Sea cases. If the equidistance principle is not to be
applied in the case of opposite coasts the result would be bound to involve some degree of cut-off.
In the situation prevailing in the present case it is the equidistance method which most
appropriately reflects the essential elements in the geographical situation.
The proper role of proportionality
- 41 -
My next task is to indicate what may be described as the proper or appropriate role of
proportionality.
By way of introduction, I make two points.
First of all, the normative status of proportionality has always been acknowledged as one of
subordination. In the Dispositif of the Judgment in the North Sea cases it appears in Section D
classified as a "factor", whereas "the principles and rules of international law" applicable were given
a priority in ranking, in Section C of the Dispositif (I.C.J. Reports 1969, pp. 53-54, para. 101).
Moreover, in the body of the Judgment it is described as a "final factor" (ibid., p. 52, para. 98).
Indeed, the modest status of proportionality as one of several factors to be taken into account
was given full acknowledgement by the Court in the Libya-Malta case (I.C.J. Reports 1985, p. 44,
para. 57).
One mode of expressing the status of proportionality is to say that whilst entitlement is subject
to rules of international law, proportionality forms part of the optional elements in the penumbra of
factors which are auxiliary to the equitable principles.
Proportionality is thus an instrument of equitable adjustment and not a rule of international
law.
And this brings me to the second point. Proportionality is an auxiliary instrument for
adjusting the results obtained by application of more senior principles and it must follow that the
auxiliary instrument should not be allowed to subvert the higher principles.
This auxiliary role is accepted in the jurisprudence.
In the Anglo-French case the Court stated the position in this way:
"In short, it is disproportion rather than any general principle of proportionality which
is the relevant criterion or factor. The equitable delimitation of the continental shelf is not, as
this Court has already emphasized in paragraph 78, a question of apportioning - sharing out -
the continental shelf amongst the States abutting upon it. Nor is it a question of simply
assigning to them areas of the shelf in proportion to the length of their coastlines: for to do
this would be to substitute for the delimitation of boundaries a distributive apportionment of
shares. Furthermore, the fundamental principle that the continental shelf appertains to a
coastal State as being the natural prolongation of its territory places definite limits on recourse
to the factor of proportionality. As was emphasized in the North Sea Continental Shelf cases
(I.C.J. Reports 1969, para. 91), there can never be a question of completely refashioning
nature, such as by rendering the situation of a State with an extensive coastline similar to that
of a State with a restricted coastline; it is rather a question of remedying the
disproportionality and inequitable effects produced by particular geographical configurations
- 42 -
or features in situations where otherwise the appurtenance of roughly comparable attributions
of continental shelf to each State would be indicated by the geographical facts.
Proportionality, therefore is to be used as a criterion or factor relevant in evaluating the
equities of certain geographical situations, not as a general principle providing an independent
source of rights to areas of continental shelf." (Decision, para. 101; and see also para. 246.)
A similar statement of principle appears in the Award in the Guinea/Guinea-Bissau
Arbitration (para. 120).
So much for the auxiliary nature of proportionality. I must now turn to the more specific
question. What are the roles of proportionality?
A certain confusion arises from the fact that proportionality appears in several quite distinct
forms and is not a generally applicable factor in any of its various personalities.
In the jurisprudence proportionality has been given three specific roles.
The first, and most generally accepted, specific role is as a factor for determining the
equitable or inequitable effects of particular geographical features upon the course of an
equidistance-line boundary (Anglo-French Decision, para. 100 in fine). In this mode, it is
"a question of remedying the disproportionality and inequitable effects produced by particular
geographical configurations or features in situations where otherwise the appurtenance of
roughly comparable attributions of continental shelf to each State would be indicated by the
geographical facts" (ibid., para. 101).
In this context, the concept of proportionality has no relation to the comparison of lengths of
coasts and is an auxiliary, if somewhat arbitrary, instrument for implementing the goal of equality in
complex situations.
The second specific role is relevant as in the North Sea cases, in "a geographical situation of
quasi-equality of a number of States" as described in paragraph 91 of the Judgment in the North Sea
cases (I.C.J. Reports 1969, pp. 49-50).
It is not perhaps always sufficiently appreciated that the concept of proportionality was
introduced by the Court in 1969 as a factor which was contingently relevant but not of general
application.
This was explained by the Court of Arbitration in the Anglo-French case. (Award,
paras. 98-99)
This point was also expressed trenchantly by Judge Oda in his dissenting opinion in the
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Libya/Malta case. With reference to the concept of proportionality the Vice-President observed:
"This concept was used by that Judgment for the verification of geographical equity in
areas where the surrounding States faced an established median line and a central point in the
oval of the North Sea. In other words, what the Court intended to say in 1969 was that in
such specific circumstances, in which the States concerned were located as adjacent States in
similar situations, but where the existence of a marked concave or convex coastline produced
a somewhat distorting effect, the proportion of the length of the coast as rectified by its
general direction - or, if I may call it, as I did in my argument in 1968, its 'coastal facade' -
was in principle useful in the verification of geographical equity (see para. 69 below). The
1969 Judgment nowhere implied the possibility of generally applying the concept of
proportionality in other cases, particularly in cases of delimitation between opposite States."
(I.C.J. Reports 1985, pp. 134-135, para. 18.)
The third specific role of proportionality appeared in the Judgment in the Libya/Malta case,
where for the first time an international tribunal applied the factor of proportionality to verify the
equity of a delimitation between opposite coasts (I.C.J. Reports 1985, p. 53, para. 74).
The result, it will be recalled, was to confirm the equity of a northward shift of the provisional
delimitation line by 18 minutes of latitude.
The rationale for this northward shift was the general geographical context as a relevant
circumstance, together with the disparity in the lengths of coasts as a further relevant circumstance
(I.C.J. Reports 1985, pp. 48-50, paras. 65-69).
Thus the Court was only concerned to employ proportionality as an ex post facto test of
equity and the Court concluded in very general terms that "the requirements of the test of
proportionality as an aspect of equity were satisfied" (para. 75).
In this context, it may be suggested that the relevance of proportionality was in several senses
marginal. It was not simply that the line had been established by other means. As the Court itself
emphasized, the relationship between the lengths of coasts of the Parties had already been taken into
account in the adjustment of the median line (ibid., pp. 54-55, para. 75, and see further the earlier
passage at page 50, paragraph 68).
In my submission it is precisely in a situation of opposite coasts that a test of proportionality
will be otiose, since the concepts of distance and adjacency produce the legal equality of a median
line and deal efficiently with the issue of non-encroachment.
And we are not here talking of a facile equality of areas but of a legal equality which in
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general reflects the geography.
If I can quote a stimulating paragraph from Vice-President Oda's dissenting opinion in the
Libya/Malta case. Referring to certain ratios for the possible division of the disputed area,
Vice-President Oda observed:
"Whether or not any one of these ratios - 1 to 3.8 (as a result of the division of the area
by the delimitation line proposed by the Court) or 1 to 2.3 or 1 to 4 (as a consequence of the
equidistance line in my hypothetical trapezium) - appears more or less equitable is a moot
point. The Judgment, however, did not attempt to prove how the application of the
equidistance method leading to such ratios would give an inequitable result. In this respect I
must point out that the very concept of the median line in the case of opposite States implies a
proportional ratio for the division of the area, instead of necessarily guaranteeing equality. It
is for those who find this fact inconvenient to indicate what degree of coast-length disparity
should trigger an adjustment, and why?" (I.C.J. Reports 1985, p. 134, para. 17.)
The irrelevance of comparative lengths of coasts
The roles of proportionality I have indicated to the Court are significantly distinct from the
question whether the disparity of lengths of coasts as such is relevant to the process of delimitation.
In Norway's submission there are substantial and cumulative justifications for the view that
the ratio of the lengths of coasts is irrelevant, and that inappropriate reference thereto generates
positive inequality.
The practical significance of this submission depends upon two elements. The first is that if
the Court insists, as it may do, that in view of the state of the case-law, the relevance of the lengths
of coasts may not be denied, then there is the possibility that at least the Court might be persuaded to
pursue a policy of restraint in that quarter.
And, secondly, there is the possibility that the reasoning in the Libya/Malta decision may be
characterized as distinguishable on the basis that it depended upon a highly specialized geographical
context.
As a matter of general principle the process of distinguishing is very well-recognized in the
practice of this Court. Thus Judge Sir Hersch Lauterpacht recognized that:
"The Court has not committed itself to the view that it is bound to follow its previous
decisions even in cases in which it later disagrees with them."
Sir Hersch went on to state that the Court has adopted a policy of judicial consistency which
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must co-exist with the process of "distinguishing". But he continued:
"No legal rule or principle can bind the judge to a precedent which, in all the
circumstances, he feels bound to disregard."
These passages appear in the first edition of the work The Development of International Law
by the International Court by Hersch Lauterpacht and they appear again in the revised edition of
1958 (pp. 13-14).
Dr. Rosenne presents a similar picture and emphasizes the element of continuity and
consistency in the work of the Court. He then continues:
"Corresponding to this is the care evinced by the Court not formally to overrule earlier
decisions but rather, where necessary, to try to explain away, usually on the ground of some
factual particularity, an earlier decision which it feels unable to follow. The attitudes adopted
in 1961 and 1964 in the Temple of Preah Vihear and the Barcelona Traction cases towards
the 1959 decision in the Aerial Incident case are illustrative of this process and of the relative
character of the requirement of consistency of jurisprudence (which is probably the guiding
element in this aspect of the Court's work)." (The Law and Practice of the International
Court, 2nd edition, revised and published in 1985, p. 613.)
And, Mr President, there can be little doubt that, if a certain process of distinguishing
previous decisions is permissable, the removal of inconsistencies in the law is permissable a fortiori.
I turn now to the justifications for the view that the ratio of lengths of coasts is essentially
irrelevant to delimitation.
On the basis that the principle of distance is the source of title, both in respect of shelf areas
and fisheries zones, the fundamental question is the relation between distance and the actual
geography of coasts.
Distance focuses upon the location of coasts and their relationship with other coasts. Ratios
or comparisons of coastal lengths bear no logical relation either to location or to the relationships of
coasts to each other.
The illogical and unattractive consequences of adopting a solution based upon the comparative
lengths of opposite coasts can be demonstrated in several ways.
First, opposite coasts involve no problems of cut-off or encroachment.
Secondly, the process of selecting relevant coasts is highly artificial and can only be based on
the prejudical premiss that a modification of the median line is a real possibility.
- 46 -
Thirdly, the lengths of coasts factor involves giving major consequences to irrelevant
circumstances.
Thus, according to the logic of the Danish case, if Greenland, or any other long coast, were
opposite a series of short coasts under the sovereignty of different States, the disparity of lengths of
coasts would lead to the allocation to Denmark of a 200-mile limit or something similar in relation to
each and every short coast State.
This would be the result in spite of the fact that in each case only a short sector of Greenland
coast would (so to speak) be relevant in relation to the counterpart opposite short coasts.
And Norway has provided the Court with this particular very simple series of figures. We
have first of all the simple case of two coasts of equal length and a median line between, we then
have a long coast State F, opposite a long coast, with a series of short coasts States upon it, and
finally we have a long coast State G, opposite a series of island States.
Now the position is that, if Denmark is right in its argument, then all the short coasts States,
as it were, suffer from the disability of facing a long coast State and the long coast State gets
dédoublements fonctionnels", gets, so to speak, several uses of its long coast and the result, in my
submission, is highly unattractive.
On the other side, it will, of course, be said that this logic is entirely false because Norway is
indulging in hypothetical geography. But the logic of the Danish argument based on the lengths of
coasts, takes no account of how many States there are opposite, how many short coasts may be
involved. The logic of the disparity in the lengths of coasts is irrelevant, it is unconnected with the
possibility of other coasts existing. And, in our submission, that demonstrates the essential lack of
logic, lack of equity, in the reference to a disparity in the lengths of coasts. The fact that Jan Mayen
or any short coasts State exists, so to speak, by itself, should not make such a radical difference to
the approach to delimitation.
In the practice of States, for example, in the Arabian Gulf, the long coast State, Iran in that
case, has not been accorded any privilege in relation to the short coasts of various States on the
- 47 -
opposite side of the Gulf.
Moreover, in the North Sea cases, the outcome of the Court's reasoning and the delimitations
which followed, was that the short coast of Germany was not only given considerable generative
effect in terms of area but was recognized as having a right to shelf areas reaching to the midpoint of
the North Sea. Given that the disputes did not involve opposite coastal relationships, the outcome of
the North Sea settlement provides a strong indication of the legal significance of coasts. Germany's
geographical situation was the basis for an entitlement which brought its shelf into median line
contact with the United Kingdom as the opposite long coast State.
The equitable proportion resulting from a median line
In his substantial dissenting opinion in the Libya/Malta case, Vice-President Oda pointed to
the fact that, in the case of opposite States, the very concept of the median line implies a proportional
ratio for the division of the area (I.C.J. Reports 1985, p. 134, para. 17).
And Vice-President Oda stresses that there is no question of the median line "guaranteeing
equality". The proportional ratio implied by the median line reflects the coastal differences and does
not produce a source of inequity.
In this context, it is excusable to speculate that the decision in the Libya/Malta case is not a
barrier to a reassessment of certain, at least, apparent tendencies in the jurisprudence.
I say "apparent", Mr. President, because the principles governing delimitation stand in need of
further development. Moreover, the decision in the Libya/Malta case was not based directly upon
the disparity in the lengths of coasts. The primary rationale for the northward shift of 18 minutes
was the general geographical context, that is to say, the position of Malta in relation to the coasts of
Italy. Further, as Judge Schwebel had occasion to point out in the same case (I.C.J. Reports 1985,
pp. 182-184), the precise basis of the adjustment, that is, its incidence and its quantum, was not
linked to the factor of lengths of coasts.
Unless the coasts of State A are to be given a privilege in comparison with the coasts of State
B, the median line must represent the normal balance which is compatible with the principle of
non-encroachment. Any resort to a criterion based upon a ratio of lengths of coasts must ineluctably
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result in a certain encroachment in the case of opposite coasts. This would mean that an unrelated
contingency is allowed to bring about a lateral adjustment. It is difficult to find an equitable
consideration which could justify such an outcome.
This reasoning remains valid if the concepts of adjacency or proximity are taken as the
doppelgangers of non-encroachment in the era when the concept of natural prolongation has less
significance.
No doubt, as happened in the Libya/Malta case, the adjustment may be more or less modest in
scale, but even a modest adjustment is difficult to reconcile with the basic principle of
non-encroachment.
'Proportionality' is not an independent source of rights
The Judgment in the Libya/Malta case contains elements which indicate that the principles of
equitable delimitation are still in a stage of development.
The Judgment affirms the view that proportionality, meaning here a reference to the ratio of
coastal lengths, cannot be an independent source of rights. In the words of the Court:
"to use the ratio of coastal lengths as of itself determinative of the seaward reach and area of
continental shelf proper to each Party, is to go far beyond the use of proportionality as a test
of equity, and as a corrective of the unjustifiable difference of treatment resulting from some
method of drawing the boundary line. If such a use of proportionality were right, it is difficult
indeed to see what room would be left for any other consideration; for it would be at once the
principle of entitlement to continental shelf rights and also the method of putting that principle
into operation. Its weakness as a basis of argument, however, is that the use of
proportionality as a method in its own right is wanting of support in the practice of States, in
the public expression of their views at (in particular) the Third United Nations Conference on
the Law of the Sea, or in the jurisprudence. It is not possible for the Court to endorse a
proposal at once so far reaching and so novel." (I.C.J. Reports 1985, p. 45, para. 58.)
This emphatic and very clear exposition of the status of proportionality constitutes a
significant contribution to the jurisprudence of delimitation. There are, however, elements in the
reasoning of the Court which suggest that the law still stands in need of further development and
clarification.
Thus the Court gives a certain significance to the ratio of coastal lengths when the disparity of
lengths of coasts is indicated as a relevant circumstance (I.C.J. Reports 1985, pp. 48-49, para. 66).
With respect, this part of the reasoning is not easily reconcilable with the determination I have
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just indicated, according to which the ratio of coastal lengths cannot be "of itself determinative of the
seaward reach and area of continental shelf proper to each party".
It is not unreasonable to see in these disparate elements in the reasoning of the Court a certain
possibility of further constructive development in the law. In particular, the Court may see fit to
confirm that the modest "final factor" of the dispositif in the North Sea cases does not involve, in
some indirect form, a rule of law and a basis of entitlement.
The greater landmass argument in another form
It will be recalled that in the Libya/Malta case the Court refused to accept the Libyan
argument based on landmass:
"It was argued by Libya that the relevant geographical considerations include the
landmass behind the coast, in the sense that that landmass provides in Libya's view the factual
basis and legal justification for the State's entitlement to continental shelf rights, a State with a
greater landmass having a more intense natural prolongation. The Court is unable to accept
this as a relevant consideration. Landmass has never been regarded as a basis of entitlement
to continental shelf rights, and such a proposition finds no support in the practice of States, in
the jurisprudence, in doctrine, or indeed in the work of the Third United Nations Conference
on the Law of the Sea. It would radically change the part played by the relationship between
coast and continental shelf. The capacity to engender continental shelf rights derives not from
the landmass, but from sovereignty over the landmass; and it is by means of the maritime
front of this landmass, in other words by its coastal opening, that this territorial sovereignty
brings its continental shelf rights into effect. What distinguishes a coastal State with
continental shelf rights from a landlocked State which has none, is certainly not the landmass,
which both possess, but the existence of a maritime front in one State and its absence in the
other. The juridical link between the State's territorial sovereignty and its rights to certain
adjacent maritime expanses is established by means of its coast. The concept of adjacency
measured by distance is based entirely on that of the coastline, and not on that of the
landmass." (I.C.J. Reports 1985, pp. 40-41, para. 49.)
This aspect of the Decision attracted no adverse comment from individual Members of the
Court and no criticism from outside the Court.
And thus, the Court confirms the previously understood position that landmass is not a basis
of entitlement.
But, of course, the Court may be thought to permit landmass philosophy to reappear through
other doors. And, in our submission, the relevance of lengths of coasts is clearly a form of reference
to greater landmass.
And there is a second indirect reference in relation to the general geographical contexte as a
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relevant circunstance. In this connection the "Maltese Islands", as they were called, were
characterised as "a minor feature of the northern seaboard of the region in question"
(I.C.J. Reports 1985, p. 50, para. 69). And later on in the Judgment (p. 52, para. 73) there is a
reference to "the general geographical context in which the islands of Malta appear as a relatively
small feature in a semi-enclosed sea". In our submission this reasoning also appears to contain
elements of thinking related to landmass.
The concept of the relevant area
The ratio of coastal lengths is a criterion which presens very considerable operation
difficulties. The question becomes: the ratio of the lengths of which coasts?
But the question posed in these terms is no longer concerned with geographical configurations
as such. It now becomes difficult to keep separate the question, which coasts are "relevant"
(objectively) and which coastal sectors will be taken into account in order to justify some
pre-ordained result which is supposed to be equitable.
This need to seek to provide an apparently objective basis for the criterion based on costal
lengths may lead to a certain articiciality of reasoning.
Such artificiality was apparent in the reasoning of the Court in the Libya/Malta case and was
subjected to a trenchant and candid analysis by Vice-President Oda (I.C.J. Reports 1985,
pp. 129-134, paras. 8-16) and by Judge Schwebel (ibid., pp. 181-182, 186).
There must always remain a certain suspicion that the selection of relevant coasts and the
construction of the relevant area is an a priori process the purpose of which is to lend an apparent
legitimacy to a division of shelf areas determined by other criteria.
Certainly in the geographical circumstances of the Libya/Malta case the reference to the
actual disparity of coastal lengths remains unelaborated.
Thus in relation to the disparity of lengths as a relevant circumstance the Court does not
undertake a specific examination of which coastal lengths should be taken into account, and simply
observes that an "adjustment of the median line" is justified (I.C.J. Reports 1985, pp. 49-50,
paras. 67-68).
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The actual process of northward adjustment in quantative and specific terms depended on
factors unrelated to lengths of coasts, as a careful reading of paragraphs 71 to 73 of the Judgment
will reveal (I.C.J. Reports 1985, pp. 51-53). Indeed, a major factor was clearly the relationship of
Malta with the coast of Sicily (see para. 72).
When the Court came to apply the test of proportionality it did so in very general terms and
once again avoided any precise investigation of relevant coastal sectors (I.C.J. Reports 1985,
pp. 53-55, paras. 74-75).
Whether in the context of disparity of lengths as a relevant circumstance or in relation to
proportionality, the Court expressly avoided linking the justification of the principle of adjustment
with the actual process of adjustment (see I.C.J. Reports 1985, p. 50, para. 68 in fine).
But there is a far more substantial objection to the concept of the relevant area. Like the
reference to lengths of coasts, the modus operandi of relevant area and coasts is related to landmass
thinking and macrogeographical philosophy.
The relevant area construct inevitably tends to transform the ratio of coastal lengths into an
independent source of rights.
Consequently what is denied to proportionality as a simple test of equity is allowed under a
logical flag of convenience, namely, the selection of a relevant area in relation to disparity of coasts
as a relevant circumstance.
In the light of these considerations Norway sees no merit in the observations on the relevant
area offered on behalf of Denmark by Mr. Thamsborg (CR 93/1, pp. 43-64). However, I would
make two brief comments.
First, in approaching the presentation of Mr. Thamsborg the Members of the Court will no
doubt bear in mind that in the series of Figures relating to his intervention (see Figures 12 to 15) the
construction of the disputed area and the presentation of a so-called relevant area tend to be
confused. The resulting construction, shaped like a kite, is a good illustration of the arbitrary nature
of the concept of the relevant area.
Secondly, Mr. Thamsborg offered a definition of proportionality which was substantially
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flawed. He said:
"As we all know, proportionality aims at the approximate congruence between the ratio
of the lengths of the Parties' relevant coastlines and the ratio of the areas of shelf attributed to
each Party by a given boundary line, all within the geographical frame of the relevant area."
(CR 93/1, p. 45.)
This definition does not reflect the jurisprudence and its lack of accuracy indicates that
Mr. Thamsborg did not appreciate the significance in legal terms of the exercise in which he was
engaged.
It is clear that the lengths of coasts and the calculation of ratios based on lengths of coasts
constitute an unreliable basis for delimitation. Proportionality in this form cannot produce a
boundary as such, because it is concerned with areas and not with the location of lines of division.
And therefore a State relying upon arguments related to proportionality must assert that the
alignment claimed, which cannot as such be based upon proportionality, has some independent
basis. Thus in the Libya/Malta case Libya argued for a geological boundary, the axis of the Rift
zone south of Malta. This line, it was said on behalf of Libya, matched the proportionality
calculation based on the ratio of lengths of coasts. In the present case Denmark claims an alignment
based upon the 200-mile outer limit of her entitlement, a principle completely unrelated to coastal
lengths, and then is forced to assert that this conforms with calculations based upon lengths of coasts
and that it is connected logically thereto.
The ex post facto and opportunist character of these calculations of ratios based on coastal
lengths is self-evident. Both in the Libya/Malta case and in the present case the State relying on
proportionality needs to be cautious, and it needs to be cautious because if it is not careful a reductio
ad absurdum emerges.
If the coastal ratio is based on too much of the opposite long coast, then the only line that
emerges will prove to be practically on the coasts of the other State and possibly on the far side of it.
The Danish Memorial contains a most helpful illustration of this difficulty (at pp. 119-120),
involving a line even beyond the 200-mile claim and my friend Professor Weil will refert to this in
due course.
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No doubt Mr. Bernhard produced a milder version of proportionality thinking in his oral
argument (CR 93/4, pp. 41-52) but in my submission the essential problems of the logic remain.
The ratio of lengths of coasts is flawed whether or not it is the basis of a "principle" (as in the
Danish Memorial, p. 119), or is offered as a relevant circumstance, or is offered as a test of equity to
be applied ex post facto (see Mr. Bernhard, CR 93/4, pp. 41-52).
Concluding points relating to the problem of equality and the lengths
of coasts
This concludes my examination of the role of comparative lengths of coasts in delimitation. In
my submission the key points which emerge are as follows:
First: reference to ratios of lengths of coasts involves elements of landmass reasoning and is
therefore inappropriate in principle.
Secondly: in the context of opposite coasts reference to lengths of coasts will inevitably
generate a significant element of inequality.
Thirdly: reference to lengths of coasts contradicts the principle that proportionality is not an
independent source of rights.
Fourthly: in the North Sea cases Judgment and Dispositif the factor of proportionality was
given a distinctly subordinate role and was not presented as a concept of general application.
Fifthly: there are no grounds for regarding the factor of proportionality as relevant in the
present case even as a subordinate norm.
A final consideration is this. Norway's legal interest includes a fisheries zone and it is obvious
that landmass related concepts are particularly inappropriate in delimitation affecting fisheries and
legal interests in the water column.
It is ultimately geographical configurations which count and the Judgment in the North Sea
cases, like the Libya/Malta Judgment, clearly accepts that equidistance is in accordance with equity
in certain situations. The median line produces the proportional ratio for the equitable division of the
area between Jan Mayen and East Greenland.
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State practice
Mr. President, my final task is to examine the relevance of State practice in geographically
similar situations.
As counsel for Denmark has accepted, the Court has "recognized the importance of State
practice, as illustrating how States regarded an equitable result might be achieved in particular
situations" (CR 93/4, p. 30).
However, I would respectfully remind the Court that the relevance of State practice extends
further. Thus in its Judgment in the Libya/Malta case the Court referred to the Libyan argument
that a greater landmass was relevant to delimitation. The Court, in response, observed:
"The Court is unable to accept this as a relevant consideration. Landmass has never
been regarded as a basis of entitlement to continental shelf rights, and such a proposition finds
no support in the practice of States, in the jurisprudence, in doctrine, or indeed in the work of
the Third United Nations Conference on the Law of the Sea." (I.C.J. Reports 1985,
pp. 40-41, para. 49.)
And so the Court invoked State practice as the first of the sources of evidence of the position
in general international law - out of a list of four sources, it came first.
I have four propositions to offer to the Court.
First: the Applicant State is afraid of State practice and this apprehension leads Denmark to
make the facile assertion that the present case is unique.
Secondly: general international law does not recognize the 200-mile outer limit principle and
the State practice endorses this view.
Thirdly: the State practice gives no support for the Danish assertion that the population factor
is relevant to delimitation.
And fourthly: State practice in similar geographical situations confirms the adoption of a
median line as an equitable solution in the present case.
If I can return to my first proposition. On behalf of Denmark it is argued by Professor Bowett
that "there are very few examples of State practice that can offer any real analogy" (CR 93/4, p. 31).
In fact Norway has presented 17 cases and, as I shall demonstrate, Denmark's very abbreviated
dismissal of their relevance lacks any power of conviction. Mr. Bernhard also asserted that the case
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was "unique in the judicial history of maritime delimitation" (CR 93/4, p. 41).
In Norway's view, the weakest form of argument is the assertion that the particular case is
unique and that therefore inconvenient evidence must be set aside as irrelevant.
My second proposition is that general international law does not recognize the 200-mile outer
limit principle invented by Denmark in the course of drafting its Memorial in 1989.
The Danish Memorial (pp. 117-118, paras. 365-366) alleges that State practice supports the
Danish method of delimitation but the reference to practice is limited to the arrangements between
Norway and Iceland which, as Norway has explained, depended upon special considerations of a
political character. As the Co-Agent of Norway, Mr. Tresselt, observed on Friday, the Agreement of
28 May 1980 between Norway and Iceland was not considered to preclude the question of
delimitation in relation to Greenland (CR 93/5, pp. 46-51).
In general it has to be said that the basis of the Danish claim is so very eccentric that it is
hardly surprising that no State practice can be found to support it.
And so I can move on to my third proposition, which is that State practice contradicts the
Danish assertion that the population factor is relevant to delimitation. Indeed, the various passages
referring to population in the Danish Reply make no attempt to invoke a single item of State practice
(pp. 156-157, para. 429; p. 158, para. 435; p. 159, para. 436; p. 163, para. 445; p. 165,
paras. 452-453; p. 169, para. 463). This silence has been maintained by Mr. Lehmann and
Professor Bowett during the oral argument, always with the exception of the arrangements with
Iceland.
It may be safely assumed that, as in the case of the factor of greater landmass considered by
the Court in the Libya/Malta case, an international tribunal would find the absence of State practice
of significance in relation to the population factor.
Like landmass, population has no relevance to entitlement which depends on the existence of a
maritime front. And this was emphasized by the Court in its Judgment in the Libya/Malta case
(I.C.J. Reports 1985, pp. 40-41, para. 49).
So much for the so-called population factor. I shall now flesh out my fourth proposition
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which is, that State practice in similar geographical situations confirms that a median line solution is
equitable in the present case.
Counsel for Denmark found Norway's examples to be "irrelevant" (CR 93/4, pp. 31-32).
Norway reaffirms the relevance of the State practice it has invoked and the Court is invited to
inspect the dossier of sketch-maps provided for this session.
Norway has presented 17 examples of State practice which have geographical characteristics
essentially similar to those of the relationships of Greenland and Jan Mayen.
No doubt the Court will form its own view of the relevance of these cases, and I shall present
them in chronological order. They are grouped together under letter references in Figure A in the
dossier provided to the Court and they correspond to sketch-maps which appeared originally in the
Annexes.
The first is the Phase 1, the delimitation between the United Kingdom and Norway in 1965,
and my friend Commander Beazley will help with the demonstration.
1. The United Kingdom-Norway (Phase I) (1965)
(Figure 11/A) (Counter-Memorial, Ann. 44)
The Governments of Norway and the United Kingdom signed an Agreement delimiting the
continental shelf boundary between the two States on 10 March 1965 (Ann. 44). Article 1 of the
Agreement provides that the dividing line
"shall be based, with certain minor divergencies for administrative convenience, on a line,
every point of which is equidistant from the nearest points of the baselines from which the
territorial sea of each country is measured".
Thus the principle of equidistance was employed for the entire alignment of 359 nautical
miles. Full effect was given to the Shetland Islands. The final three sectors of the boundary,
totalling 150 nautical miles, used four basepoints on the eastern side of the Shetland group. The
distance between the relevant coasts in these three northernmost sectors ranges from approximately
164 to 196 nautical miles.
The length of the Shetland Islands is approximately 113 kilometres and the greatest breadth is
58 kilometres.
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2. Japan-Republic of Korea
(Figure 11/B) (Counter-Memorial, Ann. 56)
Japan and the Republic of Korea signed a continental shelf boundary Agreement on
30 January 1974 (Ann. 56). The boundary thus established gives full effect to the Japanese islands
of Tsushima, situated about 45 nautical miles from the nearest large Japanese island of Kyushu.
The Tsushima islands are approximately 70 kilometres in length and 16 kilometres in width.
According to the United States Department of State publication, Limits in the Seas: "The majority
of the turning points are very close of being equidistant from one point on each country's baseline"
(No. 75, p. 6).
3. India-Indonesia (Phase I) (1974)
(Figure 11/C) (Counter-Memorial, Ann. 57)
India and Indonesia signed the relevant Agreement on 8 August 1974 (Ann. 57). The
Agreement established three straight line sectors as the boundary between Great Nicobar (India) and
Sumatra, with a total length of 47.9 nautical miles. The alignment represents a modified median line
and the consequence is that the Indian island of Great Nicobar is given full effect.
The coasts of Great Nicobar which may be said to abut directly upon the area in question
consist of the whole east coast of Great Nicobar, a distance of 29 nautical miles. If the island fronts
are taken, ignoring the gap between Little Nicobar and Nancowry, the distance is 82 miles. On the
Indonesian side the relevant fronts total 325 miles from Kepulan Kokos on the west coast of Sumatra
to Northwest Island and to Ujong Jambo Aje on the east coast.
This disparity in the coastal frontages will become more apparent when we move later to
Phase 2 of this delimitation.
4. Panama-Colombia (1976)
(Figure 11/D) (Counter-Memorial, Ann. 58)
On 20 November 1976, Panama and Colombia signed an Agreement delimiting maritime
boundaries in the Caribbean Sea and the Pacific Ocean (Ann. 58). Article 1 of the Agreement
expressly adopts the principle of equidistance.
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Whilst the median line in the Caribbean is constructed as a step-like configuration for the sake
of convenience, the principle of equidistance has been applied throughout with only minor deviations.
The result is that the very small islands and cays on which Colombian entitlement is based have
been given full effect.
(5) India-The Maldives (1976)
(Figure 11/E) (Counter-Memorial, Ann. 59)
The Governments of the Republic of India and the Republic of the Maldives signed a maritime
boundary Agreement in 1976 (Ann. 59) and, according to Limits in the Seas, "the boundary closely
approximates an equidistance line" (p. 7).
The delimitation has two principal features. In the first place, as between the mainland of
India and the Maldive Islands, in general the Maldives are given full effect. However, the east-west
trending segment of the delimitation involves allowing the modest and isolated Indian island of
Minicoy full effect as against the northernmost atoll of the Maldives. Minicoy is located
110 nautical miles from the nearest of the Laccadive Islands, to the north, (which are Indian) and
210 nautical miles from the Indian mainland. Overall, the arrangements provide no evidence of
discrimination against offshore islands. The Maldives are some 230 nautical miles from the coast of
India.
(6) India-Indonesia (Phase 2) (1977)
(Figure 11/F) (Counter-Memorial, Ann. 60)
This confirmed and extended the delimitation of 1974 between Great Nicobar, belonging to
India and Sumatra and the Agreement was signed in 1977 (Ann. 60). This extended the boundary of
1974 between the two countries in the Andaman Sea and the Indian Ocean in areas not covered by
the previous Agreement.
(7) Costa Rica-Colombia (1977)
(Figure 11/G) (Counter-Memorial, Ann. 61)
This was an Agreement signed in 1977 but it has not yet been ratified (Ann. 61). Although
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the Agreement does not adhere to any particular principle of delimitation, the actual boundary
established gives more or less full effect to the small islands and cays in the Caribbean which form
the basis of Colombian entitlement.
(8) The Netherlands-Venezuela (1978)
(Figure 11/H) (Counter-Memorial, Ann. 64
(Sketch Map A)).
Delimitation between the Netherlands and Venezuela in a maritime boundary Agreement
concluded in 1978 (Ann. 64). The alignment is not expressly based on any particular principle of
delimitation and consists of a series of geodetic lines, which is, of course, perfectly normal. Sector B
of the boundary lies between the islands of the Netherlands Antilles (Aruba, Bonaire, Curaçao) and
the coast of Venezuela. In the result the delimitation gives full effect to the offshore islands.
(9) United States-Mexico (1978)
(Figure 11/I) (Counter-Memorial, Ann. 65
(Sketch Map A))
This was based on a maritime boundary Agreement in 1978 which has not yet been ratified
(Ann. 65). The Agreement does not refer to any particular method, again, of delimitation and uses
geodetic lines. But, in doing so it gives full effect to three very small insular features some distance
off the coast of Yucatan: Arenas Cay, Isla Desterrada, and Arrecife Alacran.
(10) India-Thailand (1978)
(Figure 11/J) (Counter-Memorial, Ann. 66)
Here the resulting delimitation accords almost full effect to the Nicobar Islands, the only
qualification arising from the fact that certain small islands offshore Thailand appear to have been
employed as basepoints.
(11) United Kingdom-Norway (Phase 2) (1978)
(Also Figure 11/A)(Counter-Memorial, Ann. 67)
On 22 December 1978 Norway and the United Kingdom signed a Protocol Supplementary to
the Continental Shelf Boundary Agreement of 1965 (Ann. 67). This continued the alignment further
north, thus confirming the full weight accorded to the Shetland Islands. The Preamble to the
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Protocol reiterates the provisions of Article 1 of the Agreement of 1965, which relied, of course on
the basis of equidistance.
(12) Dominican Republic-Venezuela (1979)
(Figure 11/K) (Counter-Memorial, Ann. 68)
The Dominican Republic and Venezuela signed a maritime boundary Agreement in 1979
(Ann. 68).
This describes the alignment as an equidistant line between the Dominican Republic and the
Netherlands Antilles islands of Aruba, Curaçao and Bonaire. These are, respectively, 15, 35 and
48 nautical miles from the Venezuelan mainland. The lengths of these three islands are, respectively,
30 kilometres, 60 kilometres, and 35 kilometres. And thus the Agreement gives full effect to the
islands of the Netherlands Antilles.
(13) Denmark-Norway (1979)
(Figure 11/L) (Counter-Memorial, Ann. 69)
On 15 June 1979, Norway and Denmark signed an Agreement demarcating the continental
shelf boundary between the Faroes and Norway, and applying it for other jurisdictional zones
(Ann. 69). This gives full effect to the Faroe Islands. These islands are 308 nautical miles from the
mainland of Norway and stretch 63 miles from north to south.
(14) France-Australia
(Figure 11/M) (Counter-Memorial, Ann. 73)
The Governments of France and Australia signed a maritime boundary Agreement on 4
January 1982 (Ann. 73).
Article 2 of this Agreement establishes a boundary between the French possessions of the
Kerguelen Islands, on the one hand, and the Australian Heard and McDonald Islands, on the other.
These possessions are approximately 200 nautical miles apart. The Kerguelens have an area of
about 7,000 square kilometres and the Australian islands about 378 square kilometres. The
Kerguelen Islands have a frontage of over 70 miles. In contrast, the Australian islands have very
limited coasts abutting upon the delimitation area. The equidistance line delimitation agreed upon
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gives equal effect to the relatively small Australian islands.
(15) India-Myanmar (1986)
(Figure 11/N) (Counter-Memorial, Ann. 75)
The Agreement establishes a maritime boundary between the Andaman and Nicobar Islands,
dependencies of India, and the coasts of Myanmar. The Andaman Islands lie about 540 nautical
miles from the mainland of India, and the Nicobar Islands (lying some 80 nautical miles further
south) are even farther from India. The two chains of islands lie approximately 300 nautical miles
west of the coast of Myanmar.
The delimitation established clearly accords full weight to the Andaman and Nicobar groups
in relation to Myanmar, in spite of the remoteness of the mainland of India. In essence, the Andaman
Islands are treated as mainland for the purpose of creating an equidistance boundary.
There are three other delimitations which are very relevant and which all involved Isla Aves
under the sovereignty of Venezuela.
16. United States-Venezuela (1978), Venezuela-France (1980) and
Netherlands-Venezuela (1978)
(Figures 11/O, 11/P, and 11/Q) (Counter-Memorial, Anns. 63, 71, 64;
(Sketch Map B))
All the agreements involved the Venezuelan Isla Aves situated 300 nautical miles from the
Venezuelan mainland.
Isla Aves is really no more than an islet. Its only 580 metres in length, 150 metres wide at its
maximum. At its minimum its 50 metres and its height is never more than 3 metres. It has no
indigenous population, but it has a small military and scientific establishment housed on an offshore
platform constructed close to the beach and connected with it by a walkway. Although the island
was exploited for guano in the 19th century it now has no economic life of its own, and is a wildlife
sanctuary.
The boundary between Venezuela and the United States (Figure 11/O), is an equidistant line
between Isla Aves and the Island of St. Croix with a coastal front of about 36 kilometres and some
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135 nm distant from Isla/Aves.
And there is then a delimitation between Venezuela and France involving Aves Island
(Figure 11/P).
In the case of the French islands of Guadeloupe (coastal front 50 kilometres) and Martinique
(coastal front 60 kilometres), lying 100 nm and 140 nm respectively from Isla Aves, the boundary is
a meridian of longitude which accords Venezuela full effect in the case of Martinique, and about
80 per cent effect in the case of Guadeloupe.
And lastly there is the delimitation between Venezuela and The Netherlands involving the
small Netherlands islands of Saba and St. Eustatius. And here also there is a median line boundary.
Saba and St. Eustatius, about 120 nm and 174 nm respectively from Aves Island, are admittedly
small islands - Saba's coastal front being only about 5 kilometres and that of St. Eustatius about
8 kilometres - but they are still many times bigger than Isla Aves.
The practice surveyed is not, of course, conclusive of the issue of delimitation, but in its
totality it provides a reliable pattern which, in Norway's submission, is of assistance to the Court.
Not only does the evidence support the median line solution but it indicates the eccentricity of the
Danish claim in this case.
Counsel for Denmark made a somewhat half-hearted effort to establish the irrelevance of the
practice offered in Norway's written pleadings.
In the first place Professor Bowett argued that practice did not count "where the island's
entitlement is linked to the entitlement of a larger mainland" (CR 93/4, p. 32). It is not clear that this
element has the result of irrelevance asserted by Denmark. The distinction between an island, which
is said to be unimportant, and a "mainland", which is said to be important, appears to be an
extension of Denmark's wishful thinking about Jan Mayen projected onto the State practice.
Professor Bowett has objected to Norway's reference to Aves Island on the basis that it is
"not ... an isolated island" but is "part of the entitlement of Venezuela itself, and both island and
mainland share a common maritime zone" (ibid.).
This reasoning is unimpressive. Aves Island lies nearly 300 nm from the mainland of
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Venezuela and about 230 nm from the nearest Venezuelan island, the small and relatively isolated
Isla de Blanquilla, which has a diameter of only about 10 kilometres.
Counsel for Denmark also criticized Norway's reference to the France/Australia Agreement of
1982, of which he said: "balancing small groups of islands in the Coral Sea, tells us nothing"
(CR 93/4, p. 32).
But, the practice invoked by Norway (Counter-Memorial, p. 181, paras. 644-645) did not
relate to the Coral Sea, but to the relation between the Kerguelen Islands, with an area of
7,000 square kilometres and two Australian islands with an area of about 378 square kilometres (see
Counter-Memorial, Ann. 73). The delimitation invoked by Norway refers to the Indian Ocean, not
to the Coral Sea.
Denmark's Counsel asserted in addition that
"there can be no real analogy with cases where there is a large island group with a long coastal
façade and an important population and economy. Thus, the various agreements concluded by
India concerning the Nicobars and Andaman Islands - agreements with Indonesia (Anns. 57
and 60), with Thailand (Ann. 66), and with Myanmar (Ann. 75) - offer no real analogy. For
the Indian groups of islands are large, well-populated, and have a coastal façade of a length
matching that of its neighbour." (CR 93/4, p. 32.)
This criticism, which is related to several other examples, entirely begs the question. Norway
offers geographically similar cases, the similarity resting upon coastal configurations and
relationships. Moreover, Denmark has not attempted to produce evidence that the population factor
affected any of the delimitations in question. Counsel for Denmark made no serious attempt to
produce examples of practice which contradict the evidence adduced by Norway.
The example of the Sweden/USSR Agreement of 1988 (Memorial, Ann. 29) is unhelpful,
given the obvious difference in the geographical context.
In any event - this is the exercise involving the island of Gotland - the exercise involved a
political negotiation which resulted in the adoption of a method involving the transfer of areas. The
precise outcome in terms of delimitation was a boundary which deviates only 8 nm from the median
line between the two mainland coasts of the Baltic Sea.
Conclusions
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Mr. President, I have now completed my remarks concerning State practice and on behalf of
Norway I shall present some conclusions.
I have already offered the conclusion that there are no grounds for regarding the factor of
proportionality as relevant in the present case even as a subordinate norm.
The relevant practice of States provides respectable support for a median line solution in the
geographical situation now presented to the Court.
There is no State practice supporting the Danish claim. No third State and no item in the
literature has accepted the Norwegian arrangements with Iceland as constituting a precedent in
relation to delimitation.
Mr. President, in closing I would like to underline the global significance of delimitation. This
is a court of law and delimitation is a question of law. This is the more so when a claim is advanced
which in real terms is incompatible with the entitlement of another State. Denmark has constantly
tried to deny the legal consequences of Norway's sovereignty over Jan Mayen, for example, by the
facile portrayal of Norway as a long-range fishing State in respect of Norwegian coasts.
Speaking on behalf of Denmark, Professor Bowett goes so far as to say that Norway "is not a
coastal State for the purposes of this delimitation" (CR 93/4, p. 26). Counsel for Denmark
postulated a wholly artificial contrast between "mainland Norway" and Jan Mayen, and even
accused Norway of invoking rights in respect of Jan Mayen "simply because it is under Norwegian
sovereignty" (ibid.).
This attempt to deprive title to coasts and islands of normal legal consequences constitutes a
serious revisionism in terms of the existing legal order and in global terms represents a destabilising
factor.
Many States rely upon island territories as the basis of entitlements to various legal interests,
whether in the territorial sea, in fishery zones, shelf claims, or exclusive economic zones. The
Danish approach is based upon general international law, not treaty, general international law, and
any encouragement to territorial revisionism would simply complicate the process of dispute
settlement and cast a shadow over existing settlements.
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The Court will no doubt bear in mind that there is a substantial agenda of delimitations yet to
be effected relating to small islands juxtaposed to long coasts. I could give some examples among
others, these cases include the Cayman Islands and Cuba, the Spratly Islands and other groups in the
South China Sea in relation to neighbouring coasts, certain Japanese islands near Taiwan, Swains
Island (United States) near Western Samoa, certain French islands near Madagascar and
Mozambique, and the Falklands in relation to Argentina.
As the Court will readily appreciate, the principles of general international law inevitably have
a general significance.
Mr. President, in front of the Court I would like to acknowledge the assistance of colleagues in
preparing my presentation, and, in particular, the assistance of Commander Beazley.
I thank you, Mr. President, and distinguished Members of the Court, for your patience and
consideration.
The PRESIDENT: Thank you very much, Professor Brownlie. So we adjourn now and will
start again tomorrow morning at 10 o'clock to listen to Professor Prosper Weil. Thank you.
The Court rose at 1.00 p.m.