Audience publique tenue le lundi 25 janvier 1993, à 10 heures, au Palais de la Paix, sous la présidence de sir Robert Jennings, président

CR 93/10
International Court Cour internationale
of Justice de Justice
THE HAGUE La HAYE
YEAR l993
Public sitting
held on Monday 25 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 lundi 25 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

- 2 -
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

- 3 -
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

- 4 -
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;
- 5 -
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;
- 6 -
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.
- 7 -
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.
- 8 -
The PRESIDENT: This morning we do not have Judge Guillaume with us, for reasons that
have been explained to me, and we continue with the case between Denmark and Norway by hearing
the Danish Reply. But, before we begin the proceedings, I wish to notice the presence in the Court
of the Vice-Premier of the Greenland Home Rule Government and Minister of Finances
Mr. Emil Abelsen, whom we are very glad to have with us this morning. Now we can begin the
Danish Reply with Mr. Lehmann please.
Mr. LEHMANN: Mr. President, distinguished Members of the Court,
1. Issues still dividing the Parties
In my initial presentation of the Danish case on Monday 11 January, I stated that it ought to
be the common task of the two Parties to try to narrow down their differences in order to assist the
Court in its deliberations (CR 93/1, p. 18).
I am afraid that the first round of oral pleading has not succeeded in that task. The Parties
still appear to be quite far apart in determining the relevance of the individual factors or relevant
circumstances of the present case. This is true of the geographical factors, including the
establishment of a relevant area, as well as of the factors relating to population, conduct and
proportionality. On top of that come new challenges by Norway as to the task of the Court and its
competence to deal with a request for a single line of delimitation.
There are also no meeting of minds as to the whole legal approach of the Parties. Norway
applies a distorted interpretation of the treaty relations between the two Parties and adopts a legal
approach contrary to the current of the Court's settled jurisprudence. Denmark applies customary
international law based upon the jurisprudence of this Court. The Norwegian approach leading to a
strict median line as the boundary in the waters between Greenland and Jan Mayen does not accord
with all the relevant factors and cannot satisfy an ex post facto proportionality test and thereby meet
the requirement of reaching an equitable solution. The Danish approach aims at balancing up all the
relevant factors in order to seek an equitable solution in accordance with equitable principles and
legal rules - first and foremost the norm of equity as recognized in customary international law.
- 9 -
What is to be done in such a situation to assist the Court? We believe that there is no point in
repeating our arguments as if they had not been heard or understood by Norway. We believe they
have been understood by the other side but that Norway does not wish to take them into account.
But in so doing, their own presentation becomes extremely unbalanced, partisan and in many
respects even unreliable. We shall concentrate in our Reply on the most obvious differences, in an
attempt, once again, to assist the Court in its future deliberations.
2. The task requested of the Court
I shall start first by taking up the question raised by Norway as to the task requested of the
Court. In its oral pleading, Norway is now complaining about lack of clarity in the Danish claims
and submissions (CR 93/5, pp. 12-13).
Well, let us see what kind of judgment Denmark-Greenland is asking for in the present case.
As is stated already in our Application, we ask the Court to decide, in accordance with international
law, where a single line of delimitation shall be drawn between Denmark's and Norway's fishing
zones and continental shelf areas in the waters between Greenland and Jan Mayen. So, we ask for a
single line of delimitation to be drawn for those two zones. Our submissions in the Memorial and
the Reply ask for exactly the same, a single line to be drawn for the fishery zone and the shelf area.
The Agent of Norway, Mr. Haug, tried to make a point out of the slightly different wording of
the Application and the submissions in the Memorial and the Reply. Later counsel for Norway,
Professor Prosper Weil, elaborated at great length on the same point.
But there is no difference in substance.
In order to make its point, Norway engages in a misleading interpretation of the Danish
submissions. The Agent of Norway stated
"So, while the first application was simply for a single line of delimitation, the principal
submission was changed to ask for a declaratory judgement of entitlement to a full 200-mile
fishery zone and a full 200-mile continental shelf vis-à-vis the Norwegian island of
Jan Mayen." (CR 93/5, p. 13.)
No, Mr. President, Denmark is not asking for a declaratory judgement of entitlement. Our
presentation of facts and arguments leads us to submit that Greenland has a right to a 200-mile
- 10 -
fishery zone and continental shelf area vis-à-vis Jan Mayen. I stress the words vis-à-vis Jan Mayen
because that indicates - of course - that it is a delimitation situation we are concerned with, namely
Greenland in competition with Jan Mayen. In our Application it was premature to tell the Court
where the exact line of delimitation should be drawn. But having presented the facts and developed
the law in our Memorial, we were in a position to submit to the Court - in the light of the facts and
arguments presented - that the line of delimitation should correspond to Greenland's 200-mile fishery
zone and continental shelf area, not simply because Greenland is entitled to such maritime zones
under contemporary international law, but because the delimitation process, as described in the
Memorial, leads to that result. The delimitation process in our view favours Greenland in all
relevant respects. Therefore, we reach the conclusion that the Court should adjudge that Greenland
is entitled to a full 200-mile fishery zone and continental shelf area vis-à-vis the island of Jan Mayen.
I wish to stress the words full zone vis-à-vis the island of Jan Mayen, which clearly indicates that it
is in the context of the delimitation process that Denmark has asked for the full zone and not a
reduced zone. Having set out our submission as to the delimitation question, we ask the Court to
draw the line of delimitation for both the fishery zone and the continental shelf in the waters between
Greenland and Jan Mayen. Obviously, this is a line applying to the two sides - and not, as
suggested by counsel for Norway, Professor Prosper Weil, a line of delimitation in respect of
Greenland's own shelf and fishery zone - an absurd contention.
Our terminology corresponds actually to that used in the 1981 Agreement between Norway and
Iceland on the continental shelf in the area between Iceland and Jan Mayen where the delimitation
line coincides with the delimitation line for the Parties' economic zones following the outer limit of
Iceland's 200-nautical-mile zone. Last - but not least - the title given by the Court to the present
case: "Maritime Delimitation in the Area between Greenland and Jan Mayen" shows that the Court
itself has had no difficulty in identifying the proper subject-matter of the dispute.
Mr. President, one gets the impression that Norway is running out of arguments in support of
their own case when at this very last stage of the proceedings it chooses to engage itself in such a
semantic exercise. Maybe Norway seeks to persuade Denmark to adopt the same attitude it has
- 11 -
taken towards the judicial function of the Court in the present proceedings, namely
"In the circumstances the Norwegian Government respectfully submits that the
adjudication should result in a judgment which is declaratory as to the basis of
delimitation, ..." (Counter-Memorial, p. 197, para. 704.)
As the Court will be well aware the basis of delimitation, according to Norway, is entitlement.
3. The request for a single line of delimitation
Norway has raised a procedural question as to whether it is within the mandate of the Court to
determine a single line of delimitation as requested by Denmark in its submissions (CR 93/5,
pp. 24-25).
Our answer is as follows:
It has been suggested by the Agent for Norway (CR 93/5, pp. 12, 24-25) that, in the absence
of a special agreement, the Court cannot determine a single line of delimitation, valid for both
continental shelf and fishery zones. That proposition is unfounded in law.
The Court's competence under Article 36, paragraph 2, of the Statute, is as wide as could
possibly be conceived, namely "any question of international law". There being no reservations, and
no objection to jurisdiction or admissibility in the present case, we therefore start from the
presumption that, provided the Applicant makes a legal submission, the actual task of the Court
arises from the submissions of the Parties which, in so far as they contain a legal claim and a denial
of that claim, define the dispute before the Court.
Denmark requests the Court to draw a delimitation line. It requests a line between the only
two zones actually claimed by the Parties - the shelf and fishery zones.
Denmark's submission is clearly a claim as to a legal right opposed by Norway and from this
it follows that there is a legal dispute which, under Article 36, paragraph 2, the Court is competent
to deal with.
Now I do not say the Court is bound to accept Denmark's request for a single line, simply
because the submission so requests. The Court would be fully entitled to say that such a boundary is
unjustified in law, because specific, relevant factors dictate that there should be separate boundaries,
in different locations, for the shelf and for the fishery zones. But Denmark knows of no special
- 12 -
factors which in this case would lead to that conclusion; and Norway does not invoke such special
factors. What Norway invokes is a whole series of political considerations presented by counsel for
Norway, Professor Keith Highet, in his address to the Court last Thursday. He even went so far as
to suggest that maritime delimitation is inherently and prima facie inappropriate for cases brought by
application (CR 93/9, p. 60). He said a situation was created where the Applicant State can dictate
the course of the proceedings - may be even the judgment. Mr. President, the implications of that
argument are devastating to international adjudication in maritime delimitation. It means either that
delimitation is not a legal question, or that the optional clause reference to any legal question does
not include such legal questions as maritime delimitation. The argument simply does not make
sense. Norway has been free at all stages to challenge all Denmark's contentions. Norway was free
to challenge our baseline, our proposed relevant coasts and area, our proposed delimitation line, and
our submissions. Thus Denmark cannot dictate anything in this court-room. We can only argue our
case just as the Respondent State can argue its case.
Now, Norway for its part tries to uphold the position, or rather fiction, that the present case is
concerned with two different delimitation situations: one concerning the continental shelf area and
another one relating to the fisheries zones between Jan Mayen and Greenland.
But in this case the Court has not received a request for the establishment of different lines,
one for the shelf, a different one for the fisheries. Denmark has asked for a single line. Norway on
its part has requested that the same median line should apply both to the shelf and the fishery zones.
The maritime boundary line requested by Norway would thus perform a dual function: the
same line being applicable to "two different jurisdictions" as the Court said in the Gulf of Maine case
(paras. 27, 119).
Consequently while there is divergence between the Parties as to the location of the boundary,
there is coincidence as to the scope and function to be performed by a delimitation which will have
"a twofold object" as stated in the Gulf of Maine case (para. 193).
This being so, the question arises, why - apart from the location of the line - is Norway
making this an issue? Does it really matter whether we have one line, or two lines in an identical
- 13 -
location?
Well it does to Norway, apparently, as a matter of stated national interest (CR 93/5, p. 23)
and Denmark is ready to take this element into account as I shall revert to later during this Reply.
However, in reality we believe that Norway seeks to avoid the implications of the Court's judgment
in the Gulf of Maine case as to the law applicable to a single maritime boundary. The Court there
denied that Article 6 of the 1958 Convention on the Continental Shelf could provide the law
governing a single maritime boundary.
So Norway feels bound to argue that in this case the Court must determine two separate
boundaries.
First, a shelf boundary, a median-line already determined, or "in place" as Norway puts it, by
virtue of Article 1 of the 1965 bilaterial Agreement, and Article 6 of the 1958 Convention, and
second, a fishing-zone boundary which under customary international law should be located
identically with the pre-existing shelf boundary.
So that is really what this rather confusing series of propositions are all about. It has nothing
to do with the Court's competence, or the task of the Court, in reality. But it has everything to do
with the law governing the delimitation. It is simply part of Norway's attempt to have this boundary
governed inter alia by Article 6 of the 1958 Continental Shelf Convention - or to be more precise
part of Article 6. Because Norway wants to rely exclusively on the two words "median line" in
Article 6 disregarding the "special circumstances" clause. In that way Norway seeks to avoid a
direct confrontation between Greenland and Jan Mayen through a balancing-up of relevant factors
leading to an equitable solution. In order to avoid the test of proportionality all kinds of manoeuvres
are used. In the first place to dismiss the request for a single line of delimitation. Secondly, to claim
that a median line boundary for the continental shelf is already in place and thirdly, to join - very
simply - the delimitation for the fisheries to the shelf boundary. But in so arguing Norway has to
overlook what cannot, however, be overlooked, namely that the whole dispute originates in the
establishment around 1976-1977 of the new broad 200-mile fishery zones; that the concept of
delimitation of these zones is based on the norm of equity; that a State cannot adopt the 200-mile
- 14 -
concept for the fishery zone and leave out the corollary concept of an equitable delimitation when
overlapping claims are made; that the equidistance/special circumstances rule in Article 6 of the
1958 Convention is one single comprehensive rule; and that a renunciation of the special
circumstances clause as claimed by Norway would - if at all possible - have to be express and relate
to a particular delimitation situation.
All these aspects are being deliberately overlooked by Norway in an attempt to counter the
quite simple Danish position which is that a delimitation of the fisheries zones and continental shelf
within a distance of 400 nautical miles must in this area follow the same line - as has, indeed, been
the situation in case-law and generally in State practice since the late 1970s, as explained in our
Memorial (paras. 360-364). Such a result is also conducive to establishing finality and stability in
the area - an essential goal, we believe, of the judicial process within this field of international law.
4. The aim of reaching an equitable solution
Mr. President, we welcome the statement by the Norwegian Agent in his opening address that
Norway is indeed seeking an equitable solution (CR 93/5, p. 23). That represents an important legal
recognition of the fundamental rule of delimitation, namely that the method to be adopted should be
justified by the equity of the result - and not the other way around.
Against this background it is, in particular, regrettable that counsel for Norway, Professor
Prosper Weil, should relegate equity to the subordinate function of correcting a result reached on the
basis of applicable rules (CR 93/8 p. 76). But, Mr. President, equity is itself a rule of law as
recognized by the Court in its 1969 Judgment (para. 85) and reiterated in the Libya/Malta case
(para. 45). So, to state, as Professor Weil in effect does, that equity is not part of the law regulating
the very process of delimitation is, indeed, to turn the whole law of maritime delimitation
upside-down.
Professor Weil attacks Denmark for resorting to arguments of entitlement, though everybody
who reads our Memorial and Reply can see that we are engaged in nothing but evaluating the factors
and equitable principles which are basic to the whole delimitation process. It is Professor Weil, as
counsel for Norway, who relies entirely on entitlement, postulating that a delimitation between
- 15 -
different entitlements must necessarily cut into both entitlements. May I ask why? Did, for instance,
the delimitation between Iceland and Jan Mayen cut into Iceland's entitlement? It did not. Did the
Maltese islet of Filfla cut into Libya's entitlement? It did not. Under customary international law a
maritime delimitation dispute must be resolved in a way which leads to an equitable result. That
requires a nuanced evaluation and balancing up of all the relevant factors of the case - like the scale
of Justitia. It may be that the result of that judicial balancing leads to a line which, though equitable
in general terms, cannot be upheld judicially because a positive rule of international law dictates a
certain limit beyond which entitlement must not be extended. Such is the situation in the present case
where contemporary international law has cut the delimitation process short at a distance of
200 nautical miles where the distance between the opposite lying coasts is less than 400 nautical
miles. If no such rule existed the equitable line of delimitation in the waters between Greenland and
Jan Mayen would have to be drawn closer to Jan Mayen than the 200-mile outer limit of Greenland's
maritime zone indicates. That line - the 200-mile line - therefore becomes both the minimum and
maximum line of delimitation in the present case. Jan Mayen for its part does not loose its
entitlement as postulated by Professor Weil. Jan Mayen maintains its entitlement up to some
50 nautical miles and more, not as a result of balancing entitlements, as Professor Weil tried to put
it, but as a result of balancing the relevant factors in the delimitation process.
Unfortunately, Norway does not, as we have seen, argue for an equitable solution by
balancing-up the relevant factors considered in the light of equitable principles and the applicable
rules of contemporary international law. Norway evades that essential process of striving to find an
equitable solution by arguing, first, that the Parties have already agreed on a median line between
Greenland and Jan Mayen in the 1965 Agreement; and, second, that Article 6 of the
1958 Convention requires a median line.
My colleague Per Magid will deal with the argument based on the 1965 Agreement in our next
intervention.
The 1958 Geneva Convention on the Continental Shelf
As regards the 1958 Convention, I believe the Norwegian argument completely
- 16 -
misunderstands its effect.
Norway has made it clear that, for Norway, reliance on the 1958 Convention is a secondary or
subsidiary argument - a kind of "fall-back" argument if the argument based on the 1965 Treaty fails.
Denmark, for its part, fully accepts that the 1958 Convention remains in force and binding on the
Parties.
But the argument based on the 1958 Convention faces two main obstacles.
First, this Court has already held, in the Gulf of Maine case, that the 1958 Convention cannot
provide the applicable law for a single maritime boundary. Norway seeks to avoid this judicial
finding by suggesting that the reason for this finding was that the 1958 Convention was excluded
because the Parties came before the Court by special agreement (CR 93/6, p. 41).
But that is not correct. The Court's reasoning can be found at paragraphs 119-125 of the
Judgment. The basis of that reasoning has nothing to do with the Special Agreement. It was rather
that a convention, the 1958 Convention, dealing with only one dimension - the shelf - could not
govern a two-dimensional delimitation, i.e., shelf and superjacent waters.
This conclusion is reinforced by the same dictum in the Saint-Pierre and Miquelon Arbitral
Award (paragraph 40 of the Award).
Second, the Agent for Norway, Mr. Haug, treats Article 6 of the 1958 Convention as though it
created an obligatory rule - the median line - but with a proviso or exception for "special
circumstances", narrowly defined. That was precisely the argument rejected in the 1977 Award,
where the Court of Arbitration held that there was one rule - not a rule and an exception - and that
the whole purpose of including "special circumstances" was to achieve an equitable result. The
1977 Award held specifically, applying Article 6, that "failing agreement, the boundary between
States abutting on the same continental shelf is to be determined on equitable principles" (Decision,
para. 70).
In the event, neither group of British islands - neither the Channel Islands, nor the Scilly
Islands - received full effect in that case. So why does Norway assume Jan Mayen gets full effect if
the 1958 Convention applies?
- 17 -
In fact, Denmark submits that the application of Article 6 would lead to the same result as is
contained in our submissions, because full effect for the island of Jan Mayen would not produce an
equitable result vis-à-vis Greenland in the light of all the relevant factors, including the ex post facto
proportionality test which speaks a quite different language than the median line. The extraordinary
difference in coastal length alone dictates another line than the median line. Counsel for Norway,
Professor Prosper Weil, challenged Denmark to indicate more precisely how the island of Jan Mayen
could be considered, by itself, a special circumstance within the meaning of Article 6. I wish to refer
to the Court, which has itself offered a general explanation of what is meant by the expression
"special circumstances" in Article 6 of the 1958 Convention. It did so in its dictum in the North Sea
Continental Shelf cases, paragraph 55:
"it is clear that at no time was the notion of equidistance as an inherent necessity of continental
shelf doctrine entertained. Quite a different outlook was indeed manifested from the start in
current legal thinking. It was, and it really remained to the end, governed by two beliefs; -
namely, first, that no one single method of delimitation was likely to prove satisfactory in all
circumstances, and that delimitation should, therefore, be carried out by agreement (or by
reference to arbitration); and secondly, that it should be effected on equitable principles. It
was in pursuance of the first of these beliefs that in the draft that emerged as Article 6 of the
Geneva Convention, the Commission gave priority to delimitation by agreement, - and in
pursuance of the second that it introduced the exception in favour of 'special circumstances'."
(I.C.J. Reports 1969, pp. 35-36, para. 55.)
In the light of that dictum, it seems fair to conclude that features which are creative of inequity
in regard to a delimitation might be covered by the term "special circumstances" in Article 6 of the
1958 Convention. The island of Jan Mayen is undoubtedly such a feature on account of its
particular character - it is not only small relative to the opposite coast but, in addition, it cannot
sustain and has not sustained human habitation or economic life of its own, to borrow the phrase
used in Article 121, paragraph 3, of the 1982 United Nations Convention on the Law of the Sea.
According to Professor Weil's analysis, Jan Mayen could not qualify as a special
circumstance. Nor would, in his analysis, isolated oceanic features of even less importance than Jan
Mayen so qualify. I am referring to features which are covered by the description of rocks in the
provision just mentioned, but which can still - as in the case of Jan Mayen - claim entitlement to
continental shelf, namely under the 1958 Convention. This serves to illustrate that a legal analysis,
leading to a median-line claim for an island like Jan Mayen - a claim, which is in reality based on
- 18 -
nothing else than the entitlement of the feature to continental shelf - is simply not a sound analysis.
For it leads to results, which are manifestly inequitable and, therefore, unacceptable. It reminds me
of a saying by my old teacher, the late Professor Alf Ross, that, if the logic violates the realities it is
worst for the logic - which probably has been flawed in the first place.
5. The Norwegian-Icelandic Agreements
Allow me, Mr. President, to turn now to the Norwegian-Icelandic Agreements, an important
precedent for this case. These Agreements were entered into in 1980 and 1981 and concern fisheries
and continental shelf questions. We heard the Agent from Norway, Mr. Tresselt, saying that the
Fisheries Agreement from 1980 was exceedingly favourable to Iceland, not only in its fisheries
management provisions but also, "for the de facto concession of an area of nearly 30,000 square
kilometres to the north of the median line" (CR 93/5 p. 49). This is a statement against the facts. I
shall not repeat my analysis of the two Agreements, as presented to the Court in my intervention on
13 January (CR 93/3, pp. 38-55). But allow me, Mr. President, to read out the following part of the
Recommendation from the Foreign Affairs Committee of the Norwegian Parliament to the
Parliament's Plenary on the 1981 Agreement with Iceland concerning the continental shelf:
"The Committee would also recall that by virtue of the Agreement of 28 May 1980
between Norway and Iceland concerning fisheries and continental shelf questions, Norway
indirectly approved an Icelandic economic zone of 200 nautical miles, comprising both fishing
territory and the continental shelf, between Iceland and Jan Mayen. That approval at the same
time marked acceptance on Norway's part of an Icelandic continental shelf of at least
200 miles towards Jan Mayen." (Counter-Memorial, Ann. 14, p. 82.)
This statement makes it crystal clear that Norway has made no concessions to Iceland in so
far as Iceland's 200-mile economic zone is concerned but, as I explained to the Court on Wednesday,
13 January, Norway did in fact offer some additional rights to Iceland beyond Iceland's 200-mile
zone, i.e., within Norway's exclusive zone. So these so-called political concessions did not, as
Mr. Tresselt stated, relate to a zone north of the median line, but north of Iceland's 200-mile zone -
and that is a quite different matter.
Mr. Tresselt did not comment upon the second Norwegian/Icelandic Agreement concerning the
continental shelf. But Mr. Haug did in his intervention on 18 January (CR 93/6, p. 67). He tried to
- 19 -
counter the Danish argument that this Agreement and the recommendation of the Conciliation
Commission preceding the Agreement are based on legal arguments and form an important legal
precedent for the present case. But Mr. Haug tried to counter this in a most surprising way, because
first he conceded that the Conciliation Commission did make a conclusion of law, namely as to the
status of Jan Mayen as an island under international law and then he stated that the ensuing bilateral
treaty was not the result of a "purely legal process". So, in fact, it is admitted that the
1981 Agreement is based upon a legal process but not entirely so. We agree. The legal evaluation
was concerned with the status of islands under international law - Section IV of the Commission's
Report - but it was also concerned with the effects of islands in maritime delimitation situations,
seen in the light of State practice and Court decisions - Section VI of the Report; both evaluations
leading to a unanimous recommendation that - and now I quote from preambular paragraph 4 of the
1981 Agreement - "the delimitation line between the two Parties' parts of the continental shelf in the
area between Iceland and Jan Mayen shall coincide with the delimitation line for the economic
zones". This represents the essential legal conclusion to be drawn in respect of the present dispute,
namely Norway's recognition, in law, of Iceland's right to a 200-mile zone vis-à-vis the island of Jan
Mayen. What was not a purely legal process in the 1981 Agreement related to the recommendation
by the Conciliation Commission of a specified area of co-operation between Iceland and Jan Mayen
on both sides of the delimitation line. The major part of that area, 75 per cent, is situated north of
Iceland's 200-mile economic zone.
*
Mr. President, if we look at the individual factors considered to be relevant in deciding the
present delimitation dispute we see, unfortunately, very little common ground also on this score.
6. The relevant area
Norway does not want to enter into the decisive ex post facto proportionality test and
consequently Norway rejects the establishment of a relevant area.
In our first presentation we asked Norway either to demonstrate its own concept of a relevant
- 20 -
area and relevant coasts - or to explain to the Court why those concepts are irrelevant to the present
case.
We may now take it for granted that Norway does not intend to come up with its own
suggestion for the identification of such areas. We have had quite a few quotations from the
Libya/Malta case (1985), but so far no reference has been made to paragraph 74 of the Judgment
which - inter alia - reads as follows:
"In the view of the Court, there is no reason of principle why the test of proportionality,
more or less in the form in which it was used in the Tunisia/Libya case, namely the
identification of 'relevant coasts', the identification of 'relevant areas' of continental shelf, the
calculation of the mathematical ratios of the lengths of the coasts and the areas of shelf
attributed, and finally the comparison of such ratios, should not be employed to verify the
equity of a delimitation between opposite coasts, just as well as between adjacent coasts."
(I.C.J. Reports 1985, p. 53, para. 74.)
What is meant here by "relevant coasts" can be seen from the Tunisia/Libya case,
paragraph 75 of the Judgment:
"75. Nevertheless, for the purpose of shelf delimitation between the Parties, it is not the
whole of the coast of each Party which can be taken into account; the submarine extension of
any part of the coast of one Party which, because of its geographic situation, cannot overlap
with the extension of the coast of the other, is to be excluded from further consideration by the
Court. It is clear from the map that there comes a point on the coast of each of the two Parties
beyond which the coast in question no longer has a relationship with the coast of the other
Party relevant for submarine delimitation. The sea-bed areas off the coast beyond that point
cannot therefore constitute an area of overlap of the extensions of the territories of the two
Parties, and are therefore not relevant to the delimitation." (I.C.J. Reports 1982, pp. 61-62,
para. 75.).
Contrary to the Libya/Malta case, the present case is favoured by a simple geography which
only reinforces the applicability of the dicta just referred to.
But we must, of course, in this context of the relevant area, make sure that we get the facts
right. The scale on Map 1 in the folder distributed by Norway on 15 January is not correct. The
map compares Jan Mayen with the State of Malta but an extra zero has slipped into the scale. It
should read 10 nautical miles and 20 kilometres respectively, and not, of course, 100 and 200 as now
indicated. I also wish to point out that in real life Jan Mayen is not, as argued by Norway, being
deprived of any effect vis-à-vis Greenland according to the Danish claims. Under our claim the
island of Jan Mayen will be given a considerable effect namely an area of 31,000 km2
, slightly less
than the territory of the Netherlands. In the water expanse between Greenland and Jan Mayen the
- 21 -
island itself, in terms of distance, gets a minimum of some 50 nautical miles, i.e., four times the
breadth of the territorial sea and twice the breadth of the contiguous zone. However, as can be seen
from Map V in the Danish Reply, where we have the median line and the 200-mile limit, here we can
see that this minimum distance of 50 nautical miles only relates to a narrow beam just west of the
island, since the breadth of Jan Mayen's zone and shelf areas increases towards the north to a
maximum of 200 nautical miles, and towards the south to nearly 100 nautical miles. Thus it is not
an accurate description, to put it mildly, to state as Norway does, that the proposed line of
delimitation by Denmark is drawn as if Jan Mayen did not exist (CR 93/9, p. 77) and penalizes Jan
Mayen (CR 93/9, p. 29).
7. The disputed area
In the late 1970s when Norway and Iceland started negotiations we know - inter alia from the
debate in the Norwegian Parliament - that Norway sought to obtain recognition of Jan Mayen as an
island under international law and not merely as a rock not entitled to broad maritime zones.
Norway did in the end obtain that recognition but not at the expense of Iceland's 200-mile economic
zone.
Now, some ten years later we hear from the Norwegian Agent, Mr. Tresselt, that Jan Mayen
generates a maritime zone of 200 nautical miles vis-à-vis the competing coast of Greenland and that
the median line, because of the difference in coastal length between the two territories involved,
already represents a further reduction of the maritime zone to which Jan Mayen is otherwise entitled
(CR 93/5, pp. 41-42). Indeed a bold statement accompanied as it was by a description of that area
as the fat banana. May I just remind the Court that the median line is not a Norwegian compromise
line. It is Norway's claimed line in these proceedings which leaves a disputed area labelled by
Mr. Tresselt the banana split. I must say, the Norwegian ambitions on behalf of Jan Mayen have
certainly increased over that short period of time since the negotiations with Iceland and Mr. Tresselt
appeared to me to have "gone completely bananas" during that part of his presentation on Friday
15 January. But the Norwegian position, elaborated further by counsel for Norway, Professor
Prosper Weil, is neither credible nor tenable under customary international law. Any ex post facto
- 22 -
proportionality test based, inter alia, on the extraordinary difference in coastal length completely
destroys the Norwegian approach, which is not of this world.
8. The interests involved
As to the interests involved in the present case, it is the Danish' submission that these interests
obviously would have to be seen in relation to the two relevant territories, i.e., Greenland and Jan
Mayen, whereas Norway in this respect, with regard to the interests, suddenly treats mainland
Norway as the other relevant territory. This is done in order to introduce Norway's much invoked
substantial interests in the North Atlantic region. But these Norwegian interests, however valuable
to Norway, remain a mainland interest not a Jan Mayen interest and cannot therefore be a relevant
factor in the present delimitation which takes place in a maritime region between Greenland, Iceland
and Jan Mayen to which mainland Norway does not belong. In the Channel Island case and the
Gulf of Maine case cited by Norway, France and the United States were present in the respective
regions, so their interests were relevant, whereas the interests of mainland Norway are not.
Mr. President, I shall not repeat my arguments in favour of considering the factor of population as a
decisive one in the present case. I may simply refer to the CR 93/1, pages 16-17 and 27-28.
9. Proportionality
The intervention by my colleague, Ambassador Bernhard, on 14 January (CR 93/4,
pp. 41-52) concerning proportionality still stands as a reliable presentation of the law on the matter
based upon an analysis of the existing case-law. This analysis has not been contradicted in
substance by the Norwegian presentation. It is easily seen that it gives Norway great difficulties to
counter these arguments based upon the jurisprudence. So, Norway reminds the Court of its
freedom to make a departure from its jurisprudence in this particular case or, at least, as it was said,
"to pursue a policy of restraint".
The key word in the Norwegian attempt to move the jurisprudence back to the early 1960s is
the process of "distinguishing". No lawyer would deny that it is necessary to distinguish between
facts and situations which are different, and that, for example, the ratio of coastal lengths does not
- 23 -
automatically play a role in a delimitation case just because it has influenced certain other decisions.
So, the question is whether the particular circumstances of this case indicate that it should be
distinguished from the earlier cases in which the concept of proportionality has played a role.
It is understandable that Norway only raises that question but does not explain how or on
what basis, the cases can be distinguished. In fact, contrary to what Norway implies, all the
circumstances concerning Greenland and Jan Mayen lead to the applicability a fortiori of the
concept of proportionality.
In other words, the comparison between Greenland and Jan Mayen shows that if the role of
proportionality was relevant in other cases it is inevitable in this case.
Counsel for Norway, Professor Weil, discards the role played by proportionality in all the
judicial and arbitral decisions on the subject in the same way as he brushes aside the whole
jurisprudence about the absence of any intrinsic merits in equidistance. In his recent book on the law
of maritime delimitation he labels this jurisprudence, "a hang-over from the past and a survival of
ideas no longer valid" (p. 81 in the English edition). In his oral pleading last Thursday he
proclaimed that "[l]a délimitation maritime est une opération politique, au sens le plus large du
terme" (CR 93/9, p. 28).
This is a comfortable way of dealing with the applicable law, just to discard the cases and
proclaim your own ideas as the law in force. For instance, Professor Weil invokes in support of his
denial of any role to proportionality, certain passages from paragraph 58 of the Libya/Malta
Judgment where proportionality as a direct and independent source of seaward projection is properly
rejected. But, he conveniently stops before the final part of that paragraph and does not quote the
final phrase in which the Court adds that such a rejection,
"does not however mean that the 'significant difference in lengths of the respective coastlines'
is not an element which may be taken into account at a certain stage in the delimitation
process" (para. 58 in fine).
What is even more significant is that in his long statement concerning proportionality
(CR 93/9, pp. 9-31), Professor Weil does not quote paragraph 66 of the Libya/Malta Judgment
which is the classical reference for defining the role of proportionality in maritime delimitation:
"66. The Court has already examined, and dismissed, a number of contentions made
- 24 -
before it as to relevant circumstances in the present case (paragraphs 48-54 above). A further
geographical circumstance on which Libya has insisted is that of the comparative size of
Malta and of Libya. So far as 'size' refers to landmass, the Court has already indicated the
reasons why it is unable to regard this as relevant (paragraph 49 above); there remains
however the very marked difference in the lengths of the relevant coasts of the Parties, and the
element of the considerable distance between those coasts referred to by both Parties, and to
be examined below. In connection with lengths of coasts, attention should be drawn to an
important distinction which appears to be rejected by Malta, between the relevance of coastal
lengths as a pertinent circumstance for a delimitation, and use of those lengths in assessing
ratios of proportionality. The Court has already examined the role of proportionality in a
delimitation process, and has also referred to the operation, employed in the Tunisia/Libya
case, of assessing the ratios between lengths of coasts and areas of continental shelf attributed
on the basis of those coasts. It has been emphasized that this latter operation is to be
employed solely as a verification of the equitableness of the result arrived at by other means.
It is, however, one thing to employ proportionality calculations to check a result; it is another
thing to take note, in the course of the delimitation process, of the existence of a very marked
difference in coastal lengths, and to attribute the appropriate significance to that coastal
relationship, without seeking to define it in quantitative terms which are only suited to the ex
post assessment of relationships of coast to area. The two operations are neither mutually
exclusive, nor so closely identified with each other that the one would necessarily render the
other supererogatory. Consideration of the comparability or otherwise of the coastal lengths is
a part of the process of determining an equitable boundary on the basis of an initial median
line; the test of a reasonable degree of proportionality, on the other hand, is one which can be
applied to check the equitableness of any line, whatever the method used to arrive at that line."
(I.C.J. Reports 1985, pp. 48-49, para. 66.)
The conclusion to be drawn from case-law is, we submit, that the factor of proportionality as
an aspect of equity operates both as a general consideration of the comparability of the relevant
coasts prima facie in order to adopt a method appropriate for producing an equitable delimitation
line and as a subsequent ex post facto proportionality test aimed at checking the equity of the
delimitation arrived at.
The factor of proportionality thus leads to the conclusion that the special features of the
present case, their comparability or otherwise dictate from the very start a method other than the
median line.
10. Negotiating history
As Norway continues to complain about the unilateral Danish Application in the present case
allow me, Mr. President, to draw the Court's attention to what the Agent of Norway stated in his
intervention on Friday, 15 January:
"When Denmark filed its unilateral application to this Court in August 1988, the
immediate reaction of our Minister for Foreign Affairs, Mr. Stoltenberg, was to state that it is
perfectly normal that a dispute between two friendly countries, with a close relationship in so
many fields, should be settled by this Court." (CR 93/5, p. 9.)
- 25 -
I believe Mr. President, that the statement by the Norwegian Foreign Minister - who is also
Norway's Foreign Minister today - puts to rest all the Norwegian complaints in the written pleadings
and even during this very last stage of the oral pleadings about Denmark bringing this case before
the Court through a unilateral application instead of a special agreement (CR 95/5, p. 11). In
particular, I want to stress that the complaint about a possible arbitration procedure suggested by
Norway (CR 93/5, p. 9) is quite unjustified, as can be seen from the facts of the case as presented in
the Danish Reply (paras. 42-47, and Anns. 60-62).
Nevertheless, the Norwegian Agent, Mr. Haug, in the same intervention wonders why friendly
nations like Norway and Denmark would not agree on a negotiated settlement (CR 93/5, p. 9). Well,
the answer was, in fact, given by the other Norwegian Agent, Mr. Tresselt, in his intervention the
same day. Mr. Tresselt quoted from the Parliamentary debate in Norway on 6 June 1980 concerning
the first Norwegian/Iceland Agreement on the fisheries question. He referred to the leading
opposition spokesman and later Prime Minister, Mr. Kare Willoch, who was determined not to allow
"Danish efforts to squeeze Norway out of any part of the area on the Norwegian side of the median
line between Greenland and Jan Mayen" (CR 93/5, p. 50). As if this was not enough, Mr. Willoch
elaborated upon this point by stressing:
"There is, in short, no reason for Norway to recognize anything but the median line as
the delimitation line between the economic zones off Jan Mayen and Greenland, and this
should be made perfectly clear to Denmark. I was pleased to see in today's papers that the
Foreign Minister has sent Denmark a Note about this. Indeed, it was the only course to take.
Norwegian statements to the effect that the line of delimitation between the Jan Mayen
zone and Greenland's zone should be established by negotiation should not be misunderstood.
Negotiations will in all probability be needed to settle details connected with the delineation of
the boundary on the basis of the median line principle. But there must be no negotiation about
moving the line so as to enlarge Greenland's zone at the expense of the Jan Mayen zone."
(Counter-Memorial, Ann. 11, p. 43.)
Other parliamentarians who, during the debate, commented on the zone vis-à-vis Greenland
used such terms as, "Norway must stick to the median line principle" (Counter-Memorial, Ann. 11,
p. 48, Mr. Per Karstensen), and "where the median line with Greenland is concerned, the
Government has no leeway" (Counter-Memorial, Ann. 11, p. 72, Mr. Anders Talleraas).
Against this background, it is not surprising that Norway had very little room to manoeuvre, if
- 26 -
any at all, in the negotiations with Denmark on a delimitation line in the waters between Greenland
and Jan Mayen. The median line was "a must" for the Norwegians. That explains eight years of
fruitless negotiations.
So, proceedings were instituted in August 1988 before this World Court by Denmark and, just
of a sudden, within the next ten months the first tripartite agreement between Denmark/Greenland,
Iceland and Norway on the capelin stock was successfully concluded in June 1989. What a
coincidence! After so many years of fruitless negotiations to secure a tripartite agreement to
substitute for the exclusive bilateral Icelandic/Norwegian agreement sharing the capelin stock among
themselves. Could it be, Mr. President, that the initiation of the present proceedings has been
conducive to establishing a joint co-operation on the capelin stock in the waters between Greenland,
Iceland and Jan Mayen? I believe it could. I believe that the Court has already been productively at
work from the very start of these proceedings. But as I stated in my first intervention on Monday,
11 January, joint management agreements are indeed necessary, irrespective of legal boundaries, but
such boundaries are conducive to the achievement of stability and finality in the area and thereby
establish the basis for further joint co-operation (CR 93/1, pp. 11-12). We are, therefore, looking
forward to the settlement of the present dispute, once and for all, by this Court, in a way which will
render justice to Greenland.
*
Mr. President, I have not touched upon the factor of conduct seen in relation to Denmark and
in regard to Norway's own treatment of Bear Island. These aspects of the case, as well as Norway's
argument based upon the 1965 bilateral Agreement will now be addressed by my colleague
Per Magid.
In the following intervention, Professor Bowett will deal with aspects of general international
law and State practice, including the Norwegian/Icelandic Agreements.
Then Mr. Finn Lynge will address the Norwegian presentation from a Greenland perception
- 27 -
and, at the end, I shall read out the final submissions of Denmark.
I thank you, Mr. President.
The PRESIDENT: Thank you very much Mr. Lehmann. Mr. Magid.
Mr. MAGID: Mr. President, distinguished Members of the Court. I am to address the
Norwegian oral pleadings on what Norway has termed as its primary legal argument - the
1965 Agreement - and on the conduct of the Parties. I shall try to be brief.
The 1965 Agreement
Norway's surprising argument concerning the 1965 Agreement has been dealt with in
Denmark's written pleadings (Reply, paras. 337-350). In oral argument the issue was addressed by
Dr. Jiménez de Aréchaga (CR 93/2, pp. 60-62). What was said by Mr. Haug does not cause us to
alter or qualify what we have already pleaded. But I believe the following additional comments
should be made:
Norway's essential contention is that, by virtue of Article 1 of the 1965 Agreement
(Counter-Memorial, Ann. 46), Denmark accepted that the median line was the boundary for all
delimitations between Norway and Denmark, whether in the North Sea or elsewhere.
This interpretation does not accord with the Preamble, which refers to "the common boundary
between the parts of the continental shelf ...". Norway reads the Agreement as if it said "the
boundaries between all parts of the continental shelf". For clearly, the boundary in the North Sea
and the Jan Mayen/Greenland boundary are different boundaries.
In Mr. Haug's explanation concerning the 1965 Agreement not a word of substance is said
with respect to the official press release issued by the Norwegian Foreign Ministry announcing the
conclusion of that agreement to the world at large and defining its object and purpose (Danish
Annex 96).
The press release does not say anything about Article 1 being a general provision applicable to
all future delimitations between the Parties. It states in so many words that the 1965 Agreement was
- 28 -
an "agreement entered into by Norway concerning the delimitation of the continental shelf in the
North Sea".
Mr. Haug has provided the Court with a lengthy review of the Agreement of 10 March 1965
between Norway and the United Kingdom and its similarities with the Danish-Norwegian
Agreement. The Norwegian point is that the Agreement with the United Kingdom made no
delimitation north of the 62nd parallel, and that the extension of the delimitation north of that parallel
could be carried out by an amending Protocol. This Protocol of 22 December 1978, in the
Norwegian contention,
"makes the distinction between the generally agreed principle of continental shelf delimitation
and the step-by-step specification or drawing of the boundary line eminently clear" (CR 93/6,
p. 13).
The conclusion reached by Mr. Haug is unfounded. While the two agreements are to some
extent similar, Mr. Haug ignores at least one important difference. It is evident from the Agreement
between Norway and the United Kingdom that a further delimitation in accordance with the
Agreement was envisaged when the Agreement was concluded. Article 3, paragraph 2, expressly
provides that
"For the time being the Contracting Parties have not deemed it necessary to draw the
dividing line further north than point No. 8."
The reason was that a delimitation further north of the 62nd parallel in the same area of the
North Sea was expected to take place at a later stage. This delimitation would obviously be just a
continuation of the delimitation already made.
By contrast there was no continuing delimitation to take place under the 1965 Agreement
between Denmark and Norway. The agreement constituted a full and final delimitation between the
Parties in the North Sea. Accordingly, the 1965 Agreement between Denmark and Norway does not
contain a provision similar to Article 3, paragraph 2, of the Agreement between the United Kingdom
and Norway. The area in the North Sea was delimited and no further delimitation in the area was to
take place. On the contrary, any possible further delimitations between the Parties would be
unconnected with the 1965 delimitation and likely to be governed by different geographical and other
- 29 -
circumstances. Furthermore, some potential future delimitations - and that includes the one presently
before us - could not even be foreseen when the 1965 Agreement was concluded.
It is obvious that in 1965 the two Parties could not have had the area between Greenland and
Jan Mayen in mind. Both Parties were asserting shelf rights under the definitions of the shelf found
in the 1958 Geneva Convention - out to 200 metres or the limit of exploitability.
By reference to the technology of 1965 this area was not exploitable, so neither Party could
then claim even as far as the median line. Why, therefore, should they even think about
Greenland/Jan Mayen?
To suggest, as Mr. Haug does, that the Parties in 1965 contemplated all future delimitations,
even in areas which only future technology might make exploitable is beyond belief.
The "dynamic" Norwegian interpretation of the 1965 Agreement does not fit with general
international experience. Delimitations are "area-specific". They vary in the light of the relevant
factors, especially geography, specific to that area. This is why no two judicial or arbitral decisions
on delimitation are identical. That is why, in delimitation agreements, all kinds of different solutions
and boundaries are to be found. It would be foolhardy in the extreme for a State to agree in advance
that one method should apply to all its delimitations, in all circumstances, and ignoring major
geographical and other differences. It might, theoretically, be done, but it would need clear, express
words of agreement. And such words are not to be found in the 1965 Agreement. That Agreement
dealt with the North Sea, and nothing more.
The restricted scope of the 1965 Agreement is aptly demonstrated by the fact that it was
necessary in 1979 to enter into a new agreement between the Parties for the delimitation between the
Faroe Islands and Norway. The 1979 Agreement (Annex 69 to the Counter-Memorial) does not
refer to the 1965 Agreement or treat the median line boundary as already established, and in place.
On the contrary, it says that the Parties "having decided to delimit the continental shelf in the area
between the Faroe Islands and Norway" have agreed as follows. This clearly refers to a new
decision on a delimitation, and a new agreement. The fact that there was no lengthy discussion of
the merits of the Faroe Islands, justifying a median line, signifies nothing: their merits were obvious.
- 30 -
The 1979 Agreement is an awkward treaty for Norway. And the clear statements made by the
Norwegian Government in its Proposition No. 63 presenting the 1979 Agreement to the Storting for
ratification makes it difficult for Norway to argue its point (Annex 84 to the Reply). As the Court
will recall, in that official communication the Government plainly stated that "the
[1965] Agreement did not cover the delimitation of the continental shelf ... area between Norway
and the Faroe Islands".
Now, Mr. Haug tries to explain away the terms of this Proposition. To disentangle itself from
this otherwise clear and conclusive statement, Norway has engaged in a complicated exercise of
semantics. The distinguished Agent for Norway wants us to believe that in its statement, the
Norwegian Government used the Norwegian word for delimitation ("avgrensning"), not in the usual
sense of that word, but in the sense of actual demarcation or drawing of boundary lines carried out
under Article 2 of the 1965 Agreement (CR 93/6, p. 31).
The Norwegian contention that the reference to delimitation should be taken to refer to
demarcation cannot be correct. In maritime delimitations the issue of demarcation simply does not
arise. Of course the distinction between delimitation and demarcation is well-known in relation to
land boundaries. A line or a map is agreed - the delimitation - followed by a demarcation exercise in
which this line is marked by boundary pillars, posts and the like. But at sea that distinction has no
place, for demarcation is impracticable. States delimit their maritime boundaries once and for all, by
means of geographical co-ordinates. They do not proceed to mark out their maritime territories by
buoys.
It is evident that to define a boundary by means of geographical co-ordinates is a delimitation
operation, and not a demarcation. We have shown on the basis of Articles 75 and 84 of the Law of
the Sea Convention that to define a boundary by means of geographical co-ordinates is a delimitation
operation, and not a demarcation (CR 93/2, p. 62). Consequently the Proposition to the Norwegian
Parliament concerning the 1979 bilateral Agreement cannot have referred only to a separate so-called
demarcation arrangement under Article 2 of the 1965 Agreement.
Proposition No. 63 offers additional solid evidence which proves the fallacy of Norway's
- 31 -
interpretation of the 1965 Agreement. The Proposition states that during the negotiations, Denmark
and Norway each tabled a proposal for an agreement on the maritime delimitation issue. Both
proposals had been prepared "along the lines of" or to use Norway's translation "according to the
pattern" of the 1965 Agreement (Annex 84 to the Reply, p. 204). But it is not said that the
proposals follow from the 1965 Agreement. In other words, there was no suggestion that the
1979 Agreement was the inevitable consequence of the 1965 Agreement.
The Proposition also contains comments to each of the individual articles of the Agreement.
In the comments to Article 1 it is stated that the clause provides that the boundary between the two
States' continental shelf in the area between Norway and the Faroe Islands "like the agreement of
8 December 1965" shall be the median line. I repeat the words "like the agreement of
8 December 1965". It is "like" not "pursuant to" or some similar wording which might support the
Norwegian interpretation.
In fact if one looks at the Norwegian Government's Proposition - its own explanation of the
1979 Agreement - two things are abundantly clear. First the distinction between "delimitations" and
"demarcation" is never made. Second there is not one word to suggest - as Norway now does - that
the delimitation of the shelf as between Norway and the Faroe Islands had already been made in
Article 1 of the 1965 Agreement: and that all the 1979 Agreement was doing was to "demarcate" a
pre-existing delimitation. The argument now made by Norway has been manufactured entirely for
these proceedings.
The Norwegian Agent made another attempt at evading the 1979 Agreement. Mr. Haug
explained that this Agreement covered not only the shelf boundary but also the fisheries and for that
reason a new treaty was required, not just an additional protocol to the 1965 instrument.
But this argument is a boomerang. It would also apply to a delimitation between Greenland
and Jan Mayen, since the fisheries are the main problem. This confirms that the 1965 Agreement,
which was confined to the shelf, by itself is not sufficient to define the single boundary in the
geographical area between Greenland and Jan Mayen and that a new agreement would have been
necessary, covering both the shelf and the fisheries.
- 32 -
Nor does the Norwegian argument fit with Norway's own conduct in the eight years of
negotiations over Jan Mayen. Mr. Haug suggests that Norway never referred to the 1965 Agreement
because the negotiations never got down to questions of "detail". But the whole legal basis of
Norway's claim to a median line could hardly be a mere detail. And, in fact, the Parties did spend
considerable time in explaining their respective legal positions. The assumption must be that it never
occurred to Norway, then, to argue that a median line boundary for Jan Mayen had been agreed in
1965.
In support of the Norwegian interpretation of the 1965 Agreement, Mr. Haug has finally
referred to an answer given on 19 November 1980 by the Danish Minister of Energy (Norwegian
Annex 105; CR 93/6, pp. 20-21, 33-34). Norway has quoted from the answer at length but has
omitted to put the answer in its proper perspective by explaining or indicating the question to which
the answer was given.
The background for the question was a request from the Danish Government to the sole
concessionaire of the shelf rights in the Danish part of the North Sea to renegotiate the concession in
order to get better terms for the State. Since oil had been found by Norway in the North Sea, in
areas which the Member of Parliament asking the question described as areas of the North Sea "that
belonged to the Danish continental shelf", the question related solely to the North Sea, and so did the
response. There is no basis for using the answer given by the Minister of Energy in support of a
median line delimitation between Greenland and Jan Mayen. The Minister was only addressing the
North Sea. He was answering a specific question concerning the North Sea and was not giving a
statement concerning Denmark's general delimitation policy.
The answer given by the Danish Minister of Energy also addresses the following question
from another Member of the Danish Parliament:
"If Norway was in its right to have the principle of equidistance recognized, can it then
be correct that an agreement on Norway's rights in Eastern Greenland was included in the
agreement between Norway and Denmark?"
The Danish Minister declined to answer this question stating:
"I have no comments ... [on the] ... remarks concerning Greenland. I cannot go into
- 33 -
that, and I do not have any background to make any statement about that."
This underlines that the Minister, in his answer, only was dealing with the North Sea. Not
Greenland or the area between Greenland and Jan Mayen.
I will now turn to Norway's remarks on the conduct of Denmark.
The Conduct of Denmark
The Norwegian attempt to demonstrate that Denmark, through its conduct, is estopped from
claiming more than a median line delimitation between Greenland and Jan Mayen (Haug, CR 93/6,
pp. 51-65, 69-74; Brownlie, CR 93/7, pp. 37-40) appeared to be so half-hearted that my comments
can be brief.
The use of loaded words may be a matter of taste. The Norwegian Agent has a taste for it.
He said that
"(t)he Danish side admits in its Memorial that the Danish Minister had already in August
1979 ventured the opinion that 'Greenland must not be treated less favourably than Iceland in
relation to Jan Mayen'" (CR 93/6, p. 34).
And that
"Denmark has kindly admitted that the Norwegian Minister was genuinely surprised when
Denmark first presented its idea concerning Jan Mayen" (emphasis added) (CR 93/6, p. 34).
And Mr. Haug goes on describing the Danish Minister's statement as "cast in the framework of a
'most-favoured nation' approach" (CR 93/6, p. 74).
To get matters straight. As early as March 1979 the Danish Minister for Foreign Affairs
advised his Norwegian colleague that an equidistance line delimiting the waters between Greenland
and Jan Mayen would not be acceptable to Denmark (Memorial, para. 44). There is nothing to
warrant the Norwegian suggestion that this was a "ballon d'essai". And Mr. Haug carefully omits
to inform the Court that the statement which he claims was cast in the form of a "most-favoured
nation" approach also contained the following information which Denmark - using the terminology of
Mr. Haug - admits was said in August 1979 by the Danish Foreign Minister to his Norwegian
colleague:
- 34 -
"if a median line between Jan Mayen and Iceland became the end result, it could not be taken
for granted that the delimitation between Jan Mayen and Greenland could also be determined
by application of the median line principle" (Annex 5 to the Memorial, pp. 12-13).
I fail to see how one can describe this as a "most-favoured nation" approach.
Professor Brownlie touched very briefly on the subject of conduct in his intervention
(CR 93/7, pp. 37-40). In going through the conduct of Denmark, he stated - much to my surprise -
that in my intervention I "did not contradict the picture presented in Norway's written pleadings"
(CR 93/7, p. 38). It is correct that March 1979 was the first time Denmark advised Norway that a
median line delimitation between Greenland and Jan Mayen would not be acceptable. But to say that
I have not contradicted the picture presented in Norway's written pleadings does less than justice to
my statement.
Mr. President, would it be convenient to have an intermission now or do you want me to
finish? I still have ten minutes to go.
The PRESIDENT: Mr. Magid. I think it would be convenient if you would like to finish and
then we will take the break.
Mr. MAGID: Thank you, Mr. President.
The Agreement of 9 November 1984 between Denmark and Sweden
Mr. Haug addressed the delimitation Agreement of 1984 between Denmark and Sweden. It
was correctly pointed out that the Danish island of Hesselø in the Kattegat, along with two other
islands, was given full effect in the delimitation. (CR 93/6, pp. 46-47.) However, that case offers
no real analogy with the present case.
Unlike Jan Mayen, Hesselø is not a barren, uninhabited island lying at a great distance from
its mainland. Hesselø is inhabited. Hesselø forms part of the Danish straight baseline system. Thus
Hesselø is not an isolated feature.
The effect of Hesselø is furthermore to be viewed in the context of the entire delimitation
- 35 -
between Denmark and Sweden. A median line delimitation was considered equitable between the
two States.
Mr. Haug also offers the example of two insignificant island features that were accorded
weight in delimitations in the Baltic Sea. However, this was the result of a balanced compromise
between the Parties. In effect, a dispute over the weight to be given to the small and isolated Danish
island group of Ertholmene was resolved by according in principle equal effect to the uninhabited
Swedish rock of Utklippan. This compromise reflects once again on the weakness of the claims of
small and isolated islands, not on their strengths as Norway seems to assume.
Finally, I will address the Norwegian response to our arguments on Norway's conduct in
relation to the Spitzbergen Treaty and Bear Island.
Bear Island
In support of the conclusion that the Danish argumentation concerning Bear Island is "weak,
to say it at least", Norway has the following three contentions:
1. Svalbard is a part of the Kingdom of Norway.
2. Denmark has not noticed that the main island Svalbard is situated less than 400 nautical miles
from the Norwegian mainland.
3. Norway claims full entitlement to Bear Island's fishery protection zone.
First, the notion that Svalbard is a part of Norway. During this litigation Norway has not
even commented upon, let alone refuted, the Danish review of the legal and political considerations
concerning the maritime delimitations of the areas appertaining to the Svalbard Archipelago,
including Bear Island. Considerations which motivated the Norwegian Government and were
explained in the Storting. In view of the Spitsbergen Treaty, it is difficult to regard the maritime
delimitations between mainland Norway and the maritime areas appertaining to the Svalbard
Archipelago as an internal matter. Statements from the Norwegian Government and the debates in
the Storting make it evident that Norway regarded the delimitations as an international matter.
Second, Mr. Haug accused us of not having done our homework. It appears that the reason
- 36 -
for this accusation is that we should have overlooked that the distance between the main island of the
Svalbard Archipelago - Svalbard - and the Norwegian mainland is less than 400 nautical miles.
I am sure that Mr. Haug has carefully read our written pleadings and the transcript of our oral
pleadings and that he has done his homework properly. In doing so, he might have noticed that
Denmark actually is well aware of the distance between Svalbard and mainland Norway (Reply,
para. 293 and CR 93/3, p. 36). This has had no impact on our view that the delimitation between
the Norwegian mainland and Bear Island and other parts of the Svalbard Archipelago is an
international delimitation. An international delimitation evidencing Norway's perception of the role
of an uninhabited small island in the delimitation vis-à-vis a mainland. Moreover, the fact that the
boundary is not effected by even Svalbard itself scarcely helps Norway. If mainland Norway claims
a full 200-mile zone against not only Bear Island, but Svalbard too, this does not strengthen the
Norwegian position in relation to Jan Mayen.
Third, Mr. Haug refers to the Bear Island fishery zone in an attempt to show that Norway's
conduct in relation to Bear Island should have no adverse effect for Norway in the present case
(CR 93/6, p. 69). Norway contends that, in relation to the fishery zone, Norway has claimed full
entitlement for Bear Island. This statement reflects but once again a Norwegian attempt to substitute
delimitation with entitlement. There is no argument over whether Bear Island or Jan Mayen are
entitled to maritime zones. The argument presently before us relates to a different concept. It
relates to the delimitation vis-à-vis competing coasts, in that case mainland Norway. It is the Danish
contention that islands with the characteristics of Jan Mayen or Bear Island should be given no effect
in competing with mainland coasts. And Mr. President, this was indeed the solution chosen by the
Norway. Towards the west, where there is no competing claim, the Bear Island zone extends to the
full 200 miles. But to the south, towards mainland Norway, the Bear Island zone only extends to the
limit of the 200-mile zone of mainland Norway. This is the exact solution advocated by Denmark as
regards the delimitation between Jan Mayen and mainland Greenland. The Norwegian intervention
in no way refutes the impression that the two situations are fundamentally similar.
This concludes my intervention. Mr. President, distinguished members of the Court, I thank
- 37 -
you for your attention and your patience and may I suggest that after the intermission you call
Professor Bowett.
The PRESIDENT: Thank you very much Mr. Magid. We will take our break now and we
will try to make it a short one and be back within ten minutes. Thank you.
The Court adjourned from 11.35 to 11.45 a.m.
The PRESIDENT: Professor Bowett.
Mr. BOWETT:
Reply to the Norwegian arguments based on general international law
Mr. President, distinguished members of the Court, it falls to me to reply on behalf of
Denmark to the Norwegian arguments based on general international law.
We have heard from Norway an argument conducted with skill - to which I readily pay tribute
- and designed to restore equidistance as the operative norm in maritime delimitation. It is an
argument which is quite irreconcilable with Norway's own position in concluding the 1980-1981
Agreements with Iceland. If it succeeds in this case, it will set back the evolution of the law of
maritime delimitation by 25 years. Let me try to dissect its component parts.
Title and "equal division"
Denmark does not dispute Jan Mayen's title and, in an abstract way, one can speak of equal
titles. But Norway would go further. Norway would transpose equality of title into the principle of
"equal division" which, for Norway, means equidistance.
The portrayal of the 1969 Judgment by counsel for Norway is highly misleading. The words
of paragraph 91 of the Judgment need careful reading and as the Court said,
"Equity does not necessarily imply equality ... There can never be ... a question of
rendering the situation of a State with an extensive coastline similar to that of a State with a
restricted coastline." (I.C.J. Reports 1969, pp. 50-51, para. 91.)
- 38 -
And the concept of "equal division" used in paragraph 101.C.2 of the Dispositif was not used
in reference to the whole area to be delimited, but only to those marginal areas of overlap between
natural prolongations that might remain at the completion of the delimitation exercise.
So, Norway's whole premise is flawed. Here, we do not have equal coasts. Therefore, we
cannot start from the premise of "equal division", and from the presumption in favour of
equidistance. Yet this is precisely what Norway does - treating this as axiomatic, and then going on
to show that Jan Mayen does not fit into any of the recognized exceptional situations in which
equidistance can be modified or abated.
You will recall that Professor Brownlie confined the modification of equidistance to three
situations.
(a) Where incidental special features exist in a situation of
quasi-equality
Here the argument was essentially that Jan Mayen stood alone, as an independent feature
entitled to maritime zones in its own right. It was, therefore, not an "incidental feature" justifying
modification of equidistance.
This was, of course, the argument of France last year, in the St. Pierre et Miquelon case; and
it was rejected by the Arbitral Tribunal - which perhaps accounts for Norway's failure to mention it
in this context.
But, of course, the real point is that we are not in a situation of "quasi-equality". So there is
no need to start from any presumption that equidistance is the operative rule, and then to ask whether
this exception applies. The issue is the premise, not whether the exception applies.
(b) The general geographical context
Here, Norway tries to explain away Libya/Malta. Norway suggests that equidistance was
modified because the relevant area lay within a semi-enclosed sea, with Sicily to the north of Malta.
Norway implies that otherwise equidistance would have applied.
Would it really? Would the Court have otherwise ignored the difference in the coastal
lengths? I very much doubt it. As I recall, the effect of the Italian coast to the north - the coast of
- 39 -
Sicily - was to curtail the northerly reach of the Libyan claims, to impose a maximum limit to those
claims well to the south of the Rift Zone. Without Italy, Libya might have claimed a larger area,
more in keeping with the coastal front ratio. And certainly the St. Pierre et Miquelon Award does
not support Norway's thesis. There was no semi-enclosed sea there, only the wide Atlantic to the
east, as with Jan Mayen, and equidistance was certainly not applied.
(c) Islands "straddling" a median line
This exception does not arise. Jan Mayen is not on a median line, so we can agree on its
irrelevance.
But Norway's conclusion that, if the three "exceptions" do not apply, the median line must
apply, is a non sequitur. It simply assumes the basic applicability of the median line. As I have
said, we are not in a position of equality or even quasi-equality, so the basic applicability of the
median line cannot be presumed.
We then turn to Professor Brownlie's argument on the irrelevance of the lengths of the two
coasts.
Lengths of coast: relevant or irrelevant?
Norway suggests that the courts, in treating coastal lengths as relevant, have erred. The
suggestion is that this is a confusion with "landmass thinking", and the courts have consistently
rejected landmass as a relevant factor.
I confess I do not follow this argument. There is a world of difference between the coastal
front, or façade, and the landmass behind it. Title derives from the former, not the latter.
And if, say, one coast is ten times the length of the opposite coast, it seems eminently fair and
reasonable that the delimitation of the maritime area between the two coasts should reflect that
difference. Otherwise the coasts are not treated equally, for, if the area were literally divided
equally, in the result each mile of the shorter coast would attract ten times as much shelf area as each
mile of the longer coast. That seems a long way removed from any concept of "equal title". And
certainly it has nothing to do with the landmass behind the coasts. Now it may be true that
equidistance does not necessarily effect an equal division of areas - that is, not unless the coasts are
- 40 -
exactly equal and exactly parallel. But it is equally true that, where the lengths of opposite coasts
differ radically, equidistance will produce a radically unequal division.
What is not true is the assertion (CR 93/7, p. 52) that "distance and adjacency ... are all
expressions of the qualitative idea of equality". In fact, if you take our situation of a small island
lying opposite a long coast, the further the distance between them becomes, the greater the
divergence between any equality in the ratio of length of coast to maritime area.
The role of proportionality
Norway's treatment of proportionality suffers from the defect that it assumes proportionality
has only one role - as an ex post facto test of the equity of the result.
I had tried to point out, citing the Gulf of Maine Judgment, that it has another and prior role,
namely to assist in the actual delimitation process, by indicating that a particular method may be
suitable or unsuitable. And my submission is that, with situations of radical differences in coastal
length proportionality may rule out equidistance entirely as a suitable method. However, let us take
Norway's discussion of the role of proportionality as an ex post facto test. Let us concede it is a
"factor", rather than a "principle" - and in that sense perhaps "auxiliary". What we cannot concede
is that it is a factor which becomes "otiose" (CR 93/7, p. 58) or redundant in a situation of opposite
coasts.
Norway's reasoning to support this extraordinary proposition has two parts. The first is an
ill-concealed attack on the Malta/Libya Judgment. The Court is, in effect, invited to "distinguish"
that Judgment. The second is the bald, and bold assertion that "in a situation of opposite coasts ...
the concepts of distance and adjacency produce the legal equality of a median line ..." (CR 93/7,
p. 58).
Denmark believes that to be untrue. In the Figure 2 which I used in my first intervention we
had shown how the median line allocates to a small opposite island areas totally disproportionate to
its coastal length, as compared with the long, opposite mainland coast. You cannot disguise that fact
by saying this is nevertheless "legal equality". If one mile of island coast attracts several times the
maritime area which attaches to one mile of the mainland coast, there is no "equality", legal or
- 41 -
otherwise, about that.
Norway's reasoning is hard to follow. Professor Brownlie says we must start from the
principle of distance as the source of title (CR 93/7, p. 60). I had thought that coasts were the basis
of title - the "distance-principle" governs the limit or reach of that title, but the basis of title remains
the coast - but let us follow the argument further. We come to the so-called "illegal consequences"
of comparing coastal lengths and these are apparently three.
First, "opposite coasts involve no problems of cut-off or encroachment" (CR 93/7, p. 60).
Why so? What else is Jan Mayen's claim to a median line, except an encroachment into Greenland's
200-mile zone? Did not Iceland insist that the opposite coast of Jan Mayen should not encroach into
Iceland's 200-mile zone?
Secondly, "the process of selecting relevant coasts is ... artificial ..." (CR 93/7, p. 60). Again,
why so? It may require judgment, but courts have managed that task in most cases.
Thirdly, "the lengths of coasts factor involves giving major consequences to irrelevant
circumstances" (CR 93/7, p. 6). The proposition is so heretical that one's curiosity is aroused as to
how it can be maintained. It was supported by Figure 10 in the Norwegian dossier, but I find the
demonstration totally unconvincing. The Court will recall Figure 10.
If one of the opposite coasts is of equal length - but divided between different States - why
does its length become irrelevant? Think of the two broadly equal coasts in the Persian Gulf. Does
their equal length become irrelevant because on the west side you have not one State but Kuwait,
Saudi Arabia, Qatar, Bahrain, the Emirates? I simply do not follow. Nor can I see that it makes any
difference if the length consists of a string of islands.
So I have to say that I find the whole argument to demonstrate the inapplicability of
comparisons of coastal lengths between opposite coasts totally unpersuasive.
Denmark has no quarrel with the proposition that proportionality is not an independent source
of rights. Nor with the view that the selection of the relevant coast requires judgment. But then to
argue that the modus operandi of relating coasts and area involves landmass thinking (CR 93/7,
pp. 66-67) is inexplicable and, in fact, unexplained.
- 42 -
The criticisms of Mr. Thamsborg's demonstration of coasts and relevant area is equally
unexplained. It does not suffice to simply use epithets like "flawed" or "confused". What was
needed was a demonstration, by Norway, that the selection of coasts and area was wrong. Such a
demonstration was wholly lacking. And it does not help to imply that Denmark sees its claim to a
200-mile line as coinciding with the result produced by proportionality (CR 93/7, p. 69). We have
made it absolutely clear that any strict application of proportionality - which Denmark does not
seek - would produce a line much further east than the 200-mile limit.
This last point has considerable importance. The Court may have detected, in Norway's
arguments, a series of hints that, if strict equidistance cannot be achieved, then "modified"
equidistance might be acceptable. The difficulty is that one has to find that, in all the circumstances,
equidistance does offer a reasonable starting point; and then one has to find some basis, or criterion,
for the modification. Normally, proportionality calculations will provide this. But in this case these
calculations suggest a line beyond the 200-mile limit, and the law precludes that result.
It will not have escaped the Court's attention that Norway's arguments are quite incompatible
with Norway's agreement with Iceland. There is, therefore, this important element of conduct which
cannot be ignored.
The Difference between Iceland and Greenland
In my first intervention I had put the question: why is it that Greenland should be treated
differently from Iceland?
Mr. Per Tresselt was good enough to offer a reply to that question. He saw the 1980, 1981
Agreements with Iceland as "concessions" by Norway: he referred to "the de facto concession of an
area of nearly 30,000 square kilometres ... north of the median line" (CR 93/5, p. 49). That we
cannot accept. We can be confident this was not Iceland's view, and the Agreements do not use the
language of "concessions" at all. We are entitled to regard the Agreements as a recognition by
Norway of the legal entitlement of Iceland, to be reflected in an equitable boundary, the 200-mile
limit off Iceland.
As to the differences with Greenland, Mr. Per Tresselt saw these as lying in the "history" and
- 43 -
the "politics" of the situations (CR 93/5, p. 46). I have only two things to say about that,
Mr. President. First, these are not the differences itemised by the Norwegian Foreign Minister
(Counter-Memorial, Ann. II, p. 40), so there is evidently some confusion here. Second, I have never
before heard "history" and "politics" advanced as relevant factors in a maritime delimitation. But in
fact, when one examines closely what Mr. Per Tresselt says, the difference lies in what he calls the
"considerable Icelandic activity in the waters between Iceland and Jan Mayen" (CR 93/5, p. 46),
compared to the assumed absence of activity by Greenland in the waters between Greenland and Jan
Mayen.
The evidence may be somewhat exaggerated. The Icelandic activity apparently consists of
taking driftwood from the shores of Jan Mayen, whaling - although the level of activity is not
specified - a herring fishery in times past and capelin fishing. But, as is accepted by all Parties, the
capelin fishery is post 1978.
However, it is not so much the lack of evidence of this activity which is disturbing, it is the
sheer heresy of the proposition which Norway makes from it. Let me put the proposition bluntly, so
that the Court will grasp its true implications. A coastal State may not be entitled to a full 200-mile
zone where it has not previously been active in that area.
Can you imagine the reaction to such a proposition at UNCLOS III? By that test, most
developing States would have been disentitled to a full 200-mile zone.
I suppose Norway might argue that its proposition applies only in the context of boundary
delimitations. So let us try to reformulate the proposition in those terms.
For the purpose of effecting an equitable delimitation between the maritime areas of
neighbouring States, the crucial, relevant factor is the extent to which the two States have utilised
in the past the resources in the area.
Now there is novelty for you! You can discard all the established criteria of geography,
coastal lengths, conduct of the parties, etc. What matters, according to Norway, is evidence of the
use - or lack of use - of the resources of the area.
And note that Norway is not arguing "relative economic dependence", which is an argument
- 44 -
parties have made in past cases. For Jan Mayen has no such dependence. Norway is really saying
that, because of the lack of evidence of prior use by Greenland in this area, the boundary must be
less favourable to Greenland than it would otherwise have been. The audacity of the argument is
astonishing. It goes far beyond a demand for "historic rights" in Greenland's waters, based upon
Norway's prior fishing practices - a demand which would be untenable in contemporary law. This
proposition is even more far-reaching, because its effect is to have the waters treated as Norwegian,
simply because of lack of prior use by Greenland. You do not merely preserve historic rights: you
change the ownership of the waters because of non-use. You penalize the developing coastal State
with no evidence of prior use of its waters.
There is no mystery about the reason for this audacity. As Mr. Per Tresselt stated, since 1978
the Norwegian catch of capelin has been worth US$110 million. Forty per cent of that has come
from the disputed zone. With $44 million at stake - and more to come - one can risk a little audacity.
Yet the height of this audacity is reached when we examine the theoretical underpinnings for
the Norwegian thesis that equidistance - and only equidistance - offers a principled, juridical
approach to delimitation.
Equidistance or chaos?
The central intellectual problem is posed by Professor Weil. He says you cannot start from
"equity" - it is too elusive, amorphous, or even meaningless: so you must start from equidistance.
The difficulty about this solution is that you are immediately committed to a methodology,
without any prior examination of the merits of the claims. It is a solution which nevertheless works
well in many cases, where the merits are equally balanced. But, of course, it is a solution which
brings in to the delimitation exercise a whole series of preconceptions, of assumptions that are highly
questionable. And these assumptions are most questionable in a situation such as ours, where you
have a small island, enjoying radial projection, lying off a long mainland coast.
To demonstrate this, let us go through Professor Weil's thesis, step-by-step.
Step one: you start with the notion of "equality of title": no problem.
Step two: you translate this into equality of reach, the "distance principle". This is this notion
- 45 -
that each coast has equal "generating power" ("puissance génératrice").
Here you run up against some very serious questions, which are virtually ignored by Norway,
or regarded as inadmissible because of the presumed consequences of "equal title". First, why is it
that if so much importance is attached to equal reach, no importance is attached to equal areas?
Why is it that one mile of a small island's coast should project as far seawards as one mile of a long
mainland coast, so as to ensure equality: but it is of no relevance that one mile of short, island coast
attracts an area many times the area of the long mainland coast? In short, why is it that reach or
distance is vital; and area irrelevant?
You can see now what lies behind the attack on proportionality. Proportionality compares
areas to coastal lengths, and that is anathema to Norway. At least that is so at this stage.
Step three: you cope with overlapping claims by using equidistance - inevitably, because
equidistance produces "equal division".
So, you have in place an equidistance boundary, ignoring all differences in coastal lengths and
proportionality, and now, only at this final stage, with an equidistance boundary in place, do you
turn to "fine-tuning", as the fourth and final step to introduce such modifications or adjustments to
the equidistance boundary as the "relevant factors" require.
But, of course, under the Norwegian thesis this fine-tuning, this adjustment to the median line,
is confined to dealing with "incidental features", such as islets, promontories and other "distortions".
Proportionality, or disproportionality, is conceded to have a role here, but it is a very minor,
marginal role confined to eliminating such "distortions". It cannot, at this stage, call in question the
very basis upon which the equidistance line has been put in place.
This is the thesis, advanced by Norway, and so ably argued by my colleagues Ian Brownlie
and Prosper Weil.
Of course, it does not match with State practice - it cannot possibly explain the
Icelandic/Norway Agreements, for example. And it does not match the case-law: North Sea,
Anglo-French, Tunisia/Libya, Malta/Libya, St. Pierre et Miquelon and so on. But, to the extent
these cases do not fit the thesis, the Court is invited to distinguish them.
- 46 -
But, says Professor Weil, there is no rational alternative. It is either equidistance or equity,
which means an unprincipled floundering in a host of subjective evaluations, a sort of juridical
chaos.
Mr. President, I believe the choice Professor Weil offers us is not the only choice. The
dilemma of principle (equidistance) or chaos (equity) is unreal.
The normal, principled and judicial approach is to start from the claims of the two Parties.
Are they well-founded, in the light of all relevant factors - geography, including coastal
configurations, lengths, concepts of title, non-encroachment, conduct of the parties, and so on? This
is not an unprincipled process. Each factor can be properly evaluated.
At the end of this initial evaluation the Court will have identified the legitimate claims which
must be reconciled. Equally, an appropriate methodology will begin to emerge, in the light of all the
relevant factors. It may be equidistance, it may not.
Finally, with a basic methodology selected, it can be "fine-tuned" and tested by the ex post
facto test of proportionality, or even by reference to whether the economic results would be
catastrophic. And, if there remains a marginal area of genuine overlap between legitimate claims,
this can be divided either equally or in the ratio of the coastal lengths which are the source of title.
Now, my brief summary does less than justice to a complex judicial process. But my main
point is that it is not necessary to start from equidistance. And if you do start from equidistance, at
least in cases like this with coasts of very different lengths, you build into the delimitation process
some presumptions which, as I have shown, are totally unreasonable and unacceptable.
Perhaps I can now turn to State practice.
Professor Brownlie is wrong to assume we are afraid of State practice. What we were afraid
of was boring the Court with irrelevant material. Fifteen judicial faces are already a sufficient
ordeal: 15 bored judicial faces is something to be avoided.
There is little utility in examples of State practice that simply demonstrate islands having full
effect. One can just as easily give a host of examples where islands have been given reduced effect,
half-effect, or even no effect. To cite but one, in the Australia/Papua New Guinea Agreement of
- 47 -
1978, the Australian islands lying just south of Papua New Guinea were given no more than a 3-mile
territorial sea, enclaved within the waters of Papua New Guinea.
What we should be looking for if we are really to assist the Court, are true analogies to our
case - a small isolated island more than 200 miles off a long mainland coast, when the island has a
claim quite independently of any metropolitan mainland.
By this test, the illustrations shown to us by Professor Brownlie are disappointing and, I
repeat, largely irrelevant. I will, for the record, identify each agreement I refer to by the Figure used
in the Norwegian folder, so that the Court can study these at its leisure. I will confine the
illustrations on the screen to the more relevant agreements.
The island of Tsushima under the Japan/Korea Agreement of 1974 is clearly not treated in
isolation, but as part of the entitlement of Japan as a whole (Fig. No. 11 B). The India/Indonesia
Agreement of 1974 (Fig. 11 C) portrays a median line between two comparable coastal fronts.
Certainly the Indonesian coastal front is longer than the opposite front of the Nicobars, but not four
times as long, as Professor Brownlie's figures suggest. Perhaps he has measured the coast rather
than the coastal front? That may explain the difference. We believe the correct coastal front figures
are 12 miles for the Nicobars and 20 miles for Sumatra.
The Panama/Colombia Agreement of 1976 (Fig. No. 11 D) I have discussed earlier. The
Colombian group of islands, the Intendencia San Andres y Providencia, is quite a large group and
cannot be categorised as "very small islands and cays". The Intendencia is a separate administrative
unit with a population of 22,000 people. It is not correct to regard the whole group as having full
effect. The main island, San Andres, has full effect, but Albuquerque and the South East Cays have
only half-effect. The Colombia/Costa Rica Agreement of 1977 (Fig. 11 G) obviously accorded
similar weight to this group of islands.
The India/Maldives Agreement of 1976 (Fig. 11 E) shows a median line between two quite
comparable groups of islands, the Maldives and the Laccadive Islands, not just the most southerly
island in the Laccadive group, the island of Minicoy, which has a sizeable population. And the
Maldives were "compensated" in the sense that they were given favoured treatment between Points 1
- 48 -
to 10 of the boundary.
The use of the Netherlands/Venezuelan Agreement of 1978, affecting the Dutch Antilles
(Fig. 11 H) in the Norwegian folder is surprising; so surprising that we had not prepared a
transparency for it. But the Court is already familiar with the Norwegian illustration. Certainly in
the area between the Venezuelan coast and the islands of Aruba, Curaçao and Bonaire there is a
median line. Given the long coastal front of the islands, and the narrowness of the intervening
waters, that is scarcely surprising. But Norway makes no mention of the seaward variation, where
the narrowing "funnel" does not accord full effect to the islands, but in fact reflects the coastal ratio
of around 7:3 in favour of Venezuela.
The United States/Mexico Agreement of 1978 (Fig. 11 I) can be set aside. The United States
has not ratified this agreement and seems unlikely to do so. And, in any event, the three Mexican
islands are not isolated but very much part of the coast of Yucatan. This agreement must also be
looked at together with an agreement for the West Coast, and there was a clear balancing of claims
off the two coasts.
As regards India/Thailand - the Agreement of 1978 (Fig. 11 J) - I maintain my earlier
statement that the Andaman group is not only a large group, but has a coastal front equal to that of
the opposite coast of Thailand. The same is true of the delimitation between the Andamans and
Myanmar (Agreement of 1986: Fig. 11 N). And Narcondam Island and Barren Island, in the
Andamans, were actually discounted in the delimitation, even though Narcondam bears a close
comparison with Jan Mayen in so far as the island has no population but only a police post and radio
station. The Norwegian discussion of the Venezuela/Dominican Republic Agreement of 1979
(Fig. 11 K) seems mistaken. The median line - in fact two lines - lie between the Dominican
Republic and the Venezuelan mainland - not the Dutch Antilles.
As regards the France/Australia Agreement of 1982 (Fig. 11 M), there is certainly no long
mainland coast. The Kerguelan Islands have a longer frontage than Heard Island - this is true - but
is the difference so great as to destroy the balance between the two? Evidently the parties thought
not, particularly since France was compensated in the Coral Sea delimitation.
- 49 -
As regards the series of agreements concluded by Venezuela and affecting Aves Island, since
Norway seems to set great store by these we had best deal with them in some detail.
Aves Island lies 300 miles north of Venezuela. Venezuelan sovereignty over the island had
been recognized by the United States in 1859, and an arbitral award of 1865, between Venezuela and
Holland, also upheld Venezuelan sovereignty. In the 19th century important guano deposits had
been exploited on the island - and Venezuela objected to any suggestion that it was a mere rock, with
no economic life of its own. More recently, by Decree No. 1069 of 23 August 1972, Venezuela had
declared the island to be a wildlife sanctuary.
By an Agreement of 28 March 1978, (Fig. 11 O) the United States agreed to a median line
boundary between Aves Island and the island of St. Croix, geographically close to Puerto Rico, some
145 miles to the north of Aves Island. Some three days later, on 31 March 1978, the Netherlands
also signed an Agreement with Venezuela (Fig. 11 Q) agreeing a median line between Aves Island
and the Dutch islands of Saba and St. Eustatias. On 17 July 1980, France also signed an Agreement
with Venezuela, agreeing a line between Aves Island and the French possessions of Guadeloupe and
Martinique which gave Aves Island reduced effect (reduced by approximately 11 per cent)
(Fig. 11 P).
The question is: do these agreements support in any way Norway's claim that Jan Mayen is
entitled to a median line vis-à-vis Greenland? The answer must be "No", for a number of reasons.
First, the "opposite" coasts of St. Croix, Saba, Guadeloupe and Martinique were themselves
relatively small islands - even though Puerto Rico itself is quite large - so there is no real comparison
with Greenland. In fact the balance was between Puerto Rico and mainland Venezuela, not Puerto
Rico and Aves Island.
Second, for purely policy reasons, neither the United States nor France wished to challenge the
proposition that small islands merited considerable weight in matters of delimitation. For example,
France had St. Pierre et Miquelon and its many Pacific islands to think about.
Third, Venezuela attached importance to the security value of Aves Island, and a full maritime
zone for it was thought to increase the means of surveillance over shipping approaching the
- 50 -
Venezuelan coast.
Fourth, and most important, the zone attaching to Aves Island forms a coherent whole with
the maritime zone attaching to the Venezuelan mainland. There is no "High Seas" between Aves
Island and Venezuela. This is quite unlike the relationship between Jan Mayen and Norway.
Fifth, and last. There is evidence that other States in the Caribbean, States members of the
Organisation of East Caribbean States (OECS), are not prepared to agree to a median line boundary
between Aves Island and other East Caribbean States. (See Lewis and Challenger, "Regional
Co-operation and Ocean Development: the OECS Experience" in Lecture Notes on Coastal and
Estranine Studies, Ed. Gold. A New Law of the Sea for the Caribbean (1988), No. 27, Ch. XI and
Freestone, "Maritime Boundaries in the Eastern Caribbean," July 1989, Proceedings of the Coastal
Zone Symposium, South Carolina).
There is one final observation on State practice to be made. Professor Brownlie referred to
the "global significance" of this case - meaning that the Court's decision would affect future practice,
future delimitation agreements.
That may well be. But there is no reason to suppose that Denmark's approach to this
particular delimitation, if upheld by the Court, will be any more detrimental to inter-State relations
than Norway's solution of strict equidistance. Indeed, the contrary may be the case.
So, in my submission, the Court has no option but to take each case on its merits. There is
little point in speculating on how the Court's decision will affect this or that party, in this or that
future delimitation.
Mr. President, I fear that I have now produced in the Court the reaction I was anxious to
avoid. So I will end now, but not without expressing my thanks to the Court for its patience and
forbearance. Could I ask you to call on Mr. Finn Lynge?
The PRESIDENT: Thank you very much Professor Bowett. Mr. Lynge.
Mr. LYNGE:
- 51 -
The Lion's Share
Mr. President, honourable Members of the Court, having listened to Norway's presention of
its case, I feel a little puzzled at the exact nature of the attitude behind the words. When the
200-mile zone was globally adopted in the late 1970s, we understood in Greenland that one
motivating factor in the community of nations was the desire to secure, for the coastal States and, in
particular, the developing nations, the marine resources off their own coasts. The tide had turned, so
we were brought to understand, and developing countries could from now on rely on a secure
resource access for the benefit of their own economy, on land and at sea. This was, so we saw it, yet
another step in the long haul of an overall decolonization process whereby, step-by-step, European
control over basic third world resources was being dismantled. Therefore, it would only be a matter
of a short while before also we in Greenland would obtain full international acceptance of the
fisheries zone to which we were now entitled.
As it has turned out, however, it is not as simple as that. What we see now, to our dismay, is
the reluctance of a highly-industrialized European country to let go of a claim which is, after all, of
marginal importance to its national economy. We see here, these days, how Norway, for its own
benefit, is denying a resource input into what is today, for all practical purposes, a small developing
society trying to fend for itself - also economically. There shall be no doubt: the value of the capelin
in the disputed area is relatively much more important to Greenland than it can ever be to Norway.
We hear Norway assert that the acceptance of Iceland's 200-mile zone vis-à-vis Jan Mayen
was politically motivated, and therefore irrelevant to this case. I wonder which political motives
govern Norway's attitude in the present case. Iceland is overwhelmingly dependent on fisheries.
Norway recognizes that fact. Greenland is even more dependent on fisheries. Norway refuses to
make an acknowledgement of that. Norway is trying, these days, to build a common North Atlantic
marine resource management policy - together with, among others, Greenland. How in the world can
Norway attempt to carve out an area twice the size of Denmark from Greenland's fishery zone, and
call it a legal claim?
This approach, to us, has an unpleasant political flavour, however much our Norwegian
- 52 -
friends are trying to gloss it over.
Mr. President, allow me now to table a few corrections to the material put in front of us by
Norway.
Professor Brownlie, in his intervention (CR 93/7, p. 19), stated in a slightly different wording
what is said in the Norwegian Rejoinder, in paragraph 560 on page 166:
"A very small proportion of the population of Greenland lives within the Arctic Circle
(at the same latitudes as Jan Mayen)."
This is not so. In 1991 figures, 43.5 per cent of the Greenland population live within the
Arctic Circle. That is no small proportion.
Professor Brownlie also tries to construe an argument out of what he calls the "population
density" (ibid.) - something that maybe we had better call sparsity! The comparison he makes is
blatantly unfair. If one really wants to calculate the population density of Greenland, the icecap area
must be discounted. Anyone knows that the icecap is utterly and completely lifeless and
uninhabitable, as opposed to the coastal areas. If then, we compare Jan Mayen to the ice-free area
of Greenland, we arrive at the figure of one person per 15 square kilometres in Jan Mayen, as
opposed to one person per 7 square kilometres in Greenland. Not that we expect this to make any
difference in the maritime delimitation issue for which we are here, but then again, we may as well
make sure that every little piece of information tabled is fair and correct.
Norway has been at great pains to emphasize the irrelevance of population. Apparently
physical geography is all-important, human geography is irrelevant. The distinction seems to be
unreal, for the exploitation of these off-shore resources - whether they be fish or sea-mammals, oil or
gas - is for the benefit of people - what else?
People are not, of course, irrelevant to Norway. The only difference between the Parties is
that Norway seeks to use these resources for the benefit of the population of mainland Norway, or
some of them, whereas Denmark seeks to preserve these resources for the benefit of the people of
Greenland.
I also believe it is correct to say that the population factor has led the international community
to decide that only territories which can sustain human habitation or economic life of its own are
- 53 -
entitled to broad maritime zones. I am referring, of course, to Article 121, paragraph 3, of the 1982
United Nations Convention on the Law of the Sea. A fortiori the population factor must have a
bearing upon a delimitation situation like the present one.
I also have to say something about Professor Brownlie's many misleading comments about
Scoresbysund. The municipality of Scoresbysund does not consist of one (CR 93/7, p. 19), but of
three settlements. Scoresbysund is not the poorest of municipalities in Greenland (CR 93/7, p. 20).
Kangaatsiaq municipality on the west coast is. Scoresbysund was settled not by government
initiative, but by a private group of people (ibid.). This was not done for sovereignty reasons, but in
order to effect a thinning out of the - at the time - overpopulated Ammassalik district and in order to
utilize the abundant wildlife resources of the Scoresbysund fiord system. All this can be ascertained
in that same source upon which Norway builds its comments. The possibility of moving people from
Ammassalik to Scoresbysund was officially mentioned already in 1910-1911, and local desires of
that nature were recorded in 1919. There was no sovereignty debate at the time. The 1925 initiative
to actually provide some Ammassalik families with transport to and housing in Scoresbysund was
motivated by a wish to help them back to the good hunting grounds from which their forebears had
come.
Professor Brownlie further says (ibid.) that the Scoresbysund area was unpopulated until
1925. That is not true either. There have been indigenous people in the area for thousands of years.
If the Scoresbysund fiord system has been unutilized by the Inuit, it has only been for a short period
of a generation or so, around the turn of the century.
To say, as Professor Brownlie does, that "Scoresbysund has an essentially political rather than
an economic role" (CR 93/7, p. 20) is completely false. People moved to that place in 1925 because
of the abundance of the game. They were hunters on the outlook for a good life. It is true that
Scoresbysund is a very isolated spot, and that the money economy is at a low ebb. But the people
are attached to their place and would not want to live anywhere else. To say that, "catch activities
represent only 5 per cent of the local income" (ibid.), as Professor Brownlie states, is also
misleading. These activities represent 5 per cent of the monetary income, the point being that this is
- 54 -
a community based upon a subsistence life-style where people live directly off nature's resources,
largely without the intervention of cash, as can be verified in that very same source where the
information about the 5 per cent is found.
Professor Brownlie also contends (ibid.) that recent prospecting for oil has halted a
development toward dismantling the entire Scoresbysund community. That, too, is wrong. The
question of depopulating Scoresbysund was mentioned informally at a Greenland Council meeting in
the beginning of the 1970s. The Greenland Council, at the time, was a Danish Government
instituted advisory board for the Danish Minister for Greenland, not to be confused with the popular
elected Provincial Council in Greenland itself. Like many other ideas brought up in that forum, this
idea was considered obsolete from the outset since by then visions of autonomy had begun to
influence the political life. Thus, the idea was halted by the trend towards autonomy, certainly not
by the oil prospecting activities of a later stage - some 20 years later - as contended by Professor
Brownlie.
Mr. President, for how long shall I go on correcting the sorry homework done by the
Respondent State? Quo usque tandem patientiam nostram abutuntur? - as Cicero would say. Let
me finish my comments about Professor Brownlie's intervention by my wonderment about how he
imagines to himself what he calls "a normal urban development" (CR 93/7, p. 20) on those latitudes.
Would it maybe be something like highrise buildings or concrete sidewalks or subways? Normality
is a relative thing, Mr. President. That kind of development certainly would not be visualized as
very normal by the Scoresbysund people - if, indeed, they are capable of visualizing it at all at the
place where they live. I, for my part, have a hard time doing it.
This brings me, finally, to Professor Brownlie's contention that:
"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." (ibid..)
Mr. President, there certainly is a distinction! Very certainly! In some settlements, people live
from generation to generation, hunting the seals and whales, hunting the caribou and muskox,
- 55 -
because they want to eat that kind of meat and because they want to clothe themselves in that kind of
fur. They are the indigenous inhabitants of that country. They do not want to live anywhere else,
because they love their land and they prize that way of life. They are the kind of people who are
celebrated by the United Nations in this year of 1993.
In other places of the Arctic, you have individuals from faraway lands, separated from their
families, people who eat flown-in canned beef and vegetables, doing their highly-specialized
technical job - and a very well paid one at that. They wait out their contractual period comfortably
in high-quality centrally-heated buildings with good easy-chairs and wall-to-wall carpets. These men
do not risk their lives on the ice-floes in order to provide for their families. In their heart of hearts,
they belong somewhere else in the world.
In the Arctic, we need both kinds of habitation. On Jan Mayen, there is only the latter kind.
In Greenland, we have both.
At one point, Professor Prosper Weil said (CR 93/8, p. 9) that according to Denmark,
Greenland should have everything and Jan Mayen nothing. To illustrate his point, he had an
amusing quotation from the fables of La Fontaine (CR 93/8, p. 10). Frankly, Mr. President, as
Professsor Weil began expounding the story about the lion who wants its share, I did not understand
what he was getting at then. It did not last long, though, before - to my astonishment - I realized that
he was referring to Greenland. Greenland as a growling king of beasts, scaring away the weak and
inferior Norwegians, in order to take it all. I did not believe my own ears, but this, Mr. President,
was the "humorous" allegory utilized.
Well, what is then, in reality, the balance of interests as viewed from Greenland? It has to do
with fish. For the information of the Court, we have distributed this morning a picture of the capelin
on the background of a ruler with the measurement in centimeters, so that one may get an impression
of the shape and the size of this important little fish.
But let us now take a final look at the map. In my first presentation last Tuesday (CR 93/2,
pp. 10-11), I used a standard Greenlandic school map of our country, upon which Jan Mayen did not
figure. It is the one over here behind. I understand that Professor Highet took offence of that
- 56 -
(CR 93/9, p. 77). There was no offence intended, since the idea at that stage simply was to present
the history of Greenland, nothing else. But let me add that on more recent school maps of Greenland
the scope is widened so as to include also among others Jan Mayen, as can be seen in the Greenland
atlas which has been distributed to the Court at the beginning of these proceedings. At this final
point today, and for a different purpose, I will use another map where, of course, Jan Mayen figures.
It is based upon the one tabled by Norway as Map no. 5 on Friday 15 January (CR 93/5, p. 52). It
was a map that showed the extension of the drift-ice off the East Greenland coast in the month of late
April.
At the same time, I also want to make a reference to the Danish Memorial, page 41 - you all
know this, this is the map, actually a series of maps, showing the extension of the drift-ice, as it
changes from one month to the next, the year round. As we can see in the Danish Memorial the
relevant coast is blocked by drift-ice for an approximate 75 per cent of the time. Commercial fishing
has been attempted out of Scoresbysund harbour, but has been given up. On an average, if we take
the year-round average, the drift ice belt reaches about half way over to Jan Mayen and then it
grows, it has the widest extension at the beginning of the year, February, March, April and May;
and then it decreases again in the second part of the year. That is the way it keeps changing.
Commercial fishing, as I said, has been tried out of Scoresbysund, but has been given up. We can
say that as a general rule which is completely unalterable, if we take the median line, or let us say
just half-way between Greenland and Jan Mayen, you have the ice to the west and the open water to
the east. That is the general rule. And from June, July, August, September, October the open water
stretches over here and then it comes back like that. So, what we see is that to the east of what
approximates the equidistance line, to the east of the middle, you have the good fishing water. To
the west of the middle line you cannot fish. As a general rule.
Mr. President, Denmark has analysed the concept of proportionality in maritime delimitation
situations both in general and specifically related to the present dispute. We have so far made no
proportionality calculations based on the drift-ice situation. If we now calculate the ice-free waters
which will attach to each territory under the respective claims of the two Parties as they appear on
- 57 -
the Norwegian ice-map here, we see that Norway claims about 90 per cent of the good fishing water
and leaves to Greenland about 10 per cent. If we take a look at the map - this of course if we stick to
this line here which is a Norwegian claim - Norway will get all this, Greenland will get that. If we
adhere to the Danish solution which we see here, well, we see that the good fishing waters are
divided up in this month of April roughly on a 50:50 ratio.
The severe drift-ice condition is a fact of life at this part of the Greenland coast. It is
unalterable. And this is what aggravates the disproportionate effect of the Norwegian claim, even
given the fact that the edge of the drift ice lies considerably further to the west in the late summer,
the fact remains that the median line solution will give Norway almost a monopoly over the ice-free
areas, a veritable lion's share. The median line solution will give Greenland close to nothing, when it
comes to fishing.
In contrast, the solution sought under the Danish claim will divide the good fishing waters in
an even-handed manner between the two Parties.
These are the facts of the matter.
So, to close this statement, these facts of the matter bring us to the necessity of reshaping the
La Fontaine allegory. If there is a lion out there, it is Norway, perched on the rocks of Jan Mayen,
having set his mind on, as far as possible, all and every square nautical mile of the good fishing
water. But the eyes of that regal beast are met, if you will allow me to reset the scene in this
venerable little piece of French literature, by those of a white bear on the ice-floes to the west. There
you have a polar bear who has a taste for fish. The lion, mind you, has no intention of renouncing
what he considers his share, namely: as much as possible of the open water stretch. But faced with
the bear, the unlionly solution is imposed upon him: court proceedings and adjudication.
And so, here we are. Greenland is asking for a plain and simple 200-nautical-mile limit for
the purpose of securing a part of the good fishing water that is found between Jan Mayen and
Greenland. This is a matter of Greenland placing its trust in the equity of the United Nations system,
and of this Court in particular.
Greenland has a right to this resource.
- 58 -
Mr. President, honourable Members of the Court, thank you for your attention.
The PRESIDENT: Thank you very much Mr. Lynge. Mr. Lehmann.
Mr. LEHMANN:
Finishing statement
Mr. President, distinguished Members of the Court. It is my task to conclude the Danish
arguments and in accordance with Article 60, paragraph 2, of the Rules of Court to read out
Denmark's final submissions.
Before doing so I wish to state that the questions addressed to the Parties by the distinguished
Vice-President of the Court, Judge Oda, will be answered by Denmark, in writing, in due course.
As to the Danish submissions, I can be rather brief in so far as the pleadings of the
Respondent State have not convinced Denmark/Greenland that an equitable solution of the present
delimitation case could follow a line less than 200 nautical miles measured from the relevant part of
Greenland's baseline. Thus we maintain our submissions advanced in the Memorial and refined in
the Reply in the light of the revised East Greenland baseline established in 1989 (see paragraph 31 of
the Reply).
However, the Respondent State has pressed a procedural point as to what would happen if the
Court does not accept Denmark's submissions. It is suggested that there would be nothing further for
the Court to do (CR 93/9, pp. 70-71). Well, in the view of the Danish Government the Court would
still be fully competent to determine and draw whatever delimitation line in the waters between
Greenland and Jan Mayen is in accordance with international law.
In order to avoid any misunderstanding on this procedural point and following the latin
proverb: Fortiter in re suaviter in modo, we have decided to add a paragraph to our submissions, so
as to assist the Court in its task and to take into account the stated national interest of Norway. For
Denmark it is the substance which counts.
Denmark's final submissions then read as follows:
May it please the Court:
- 59 -
(1) To adjudge and declare that Greenland is entitled to a full 200-mile fishery zone and
continental shelf area vis-à-vis the island of Jan Mayen; and consequently
(2) To draw a single line of delimitation of the fishery zone and continental shelf area of
Greenland in the waters between Greenland and Jan Mayen at a distance of 200 nautical miles
measured from Greenland's baseline, the appropriate part of which is given by straight lines
(geodesics) joining the following points in the indicated order:
Point No. Designation Latitude N Longitude W
1 At Cape Russel 69°59'38"3 22°19'18"2
2 At Cape Brewster 70°07'24"0 22°03'55"5
3 At Cape Lister 70°29'33"5 21°32'28"7
4 At Cape Hodgson 70°32'16"7 21°28'51"0
5 Rathbone Island SE 70°39'53"4 21°23'01"4
6 Rathbone Island NE 70°40'14"7 21°23'01"8
7 At Cape Topham 71°19'56"0 21°37'57"0
8 Murray Island 71°32'45"3 21°40'00"0
9 Rock 72°16'09"4 22°00'17"6
10 Franklin Island 72°38'57"2 21°40'04"7
11 Bontekoe Island 73°07'15"9 21°12'09"0
12 Cape Broer Ruys SW 73°28'57"9 20°25'05"9
13 At Cape Broer Ruys 73°30'30"9 20°23'02"6
14 Arundel Island 73°45'49"4 20°03'28"9
15 At Cape Borlase Warren 74°15'58"1 19°22'11"4
16 At Clark Bjerg 74°20'34"3 19°11'04"7
17 Lille Pendulum 74°36'43"9 18°22'33"0
18 At Cape Philip Broke 74°57'15"2 17°31'08"5
19 Cape Pansch S 75°00'34"8 17°22'20"4
- 60 -
20 At Cape Pansch 75°08'37"5 17°19'01"6
21 Cape Børgen SE 75°21'26"1 17°50'52"2
(3) If the Court, for any reason, does not find it possible to draw the line of delimitation
requested in paragraph 2, Denmark requests the Court to decide, in accordance with international
law and in light of the facts and arguments developed by the Parties, where the line of delimitation
shall be drawn between Denmark's and Norway's fisheries zones and continental shelf areas in the
waters between Greenland and Jan Mayen, and to draw that line.
*
Mr. President, a copy of this text, duly signed, will be communicated to the Court and
transmitted to the Respondent State in accordance with Article 60, paragraph 2, of the Rules of
Court.
I thank you, Mr. President, and the other distinguished Members of the Court for your
patience and attention.
The PRESIDENT: Thank you very much Mr. Lehmann. So that concludes the Danish
argument in these proceedings and we shall meet again on Wednesday morning at 10 o'clock to hear
the Norwegian Rejoinder. Thank you.
The Court rose at 1.15 p.m.