Summary of the Judgment of 14 June 1993 | INTERNATIONAL COURT OF JUSTICE

Document Number

6745

Document Type

summary

Case

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

Number (Press Release, Order, etc)

1993/2

Date of the Document

Mon, 06/14/1993 - 12:00

Document File

6745.pdf

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

CASE CONCERNING MARITIME DELIMITATIONIN THE AREA BETWEEN
GREENLAND AND JAN MAYEN (DENMARK v. NORWAY)

Judgment of 14 June 1993

InitsJudgmenton the caseconcerning Maritime Delimi- Vice-PresidentOdaand Judges Schwebel, Shahabuddeen,
tation in the Area between Greenlandand Jan Mayen,the Weeramantry and Ajibola appended separate opinionsto
Court, by 14 votes to 1, fixed a delimitation linefor boththe Judgment of the Court.
the continental shelf and the fishery zonesof Denmark and Judge ad hoc Fischer appendeda dissenting opinionto
of Norway in the area between Greenlandand Jan Mayen. the Judgment of the Court.
The Court was composed as follows: President Sir
Robert Jennings; Vice-President Oda; Judges Ago,
Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume,
Shahabuddcen, Aguilar Mawdsley, Weeramantry, Ranjeva,
Ajibola; Judgead hoe Fischer; Registrar Valencia-Ospina.
Review ofthe proceedings and summaryoffacts
(paras. 1-21)

TheCourtoutlinesthesuccessivestagesoftheproceedings
as fromthe date the case was brought beforeit (paras. 1-8)
The full text of the operative paragraphis as follows: and sets outthe submissionsof the Parties (paras. 9-10).It
"94. For these reasons, recalls that Denmark, instituting proceedingson 16August
THECOURT, 1988,had asked the Court
By fourteen votes to one, "to decide, in accordance with internationallaw,where a
single line of delimitation shall be drawn between Den-
Decides that, within the limits defined mark's and Norway's fishingzonesand continentalshelf
1. to the north by the intersection of the line of areas inthe waters between Greenland andJanMayen";
equidistance between thecoasts of Eastern Greenland and had, in the courseofthe proceedings, madethe follow-
and the westerncoasts of JanMayen with the 200-mile ing subn~issions:
limit calculated as from the said coasts of Greenland,
indicated on sketch-mapNo. 2 as point A, and "To adjudge and declarethat Greenlandis entitled to a
2. tothe south,bythe 200-mile limit around Iceland, full 200-mile fishery zone and continental shelfarea
asclaimedby Iceland,betweenthepointsofintersection vis-A-visthe island of Jan Mayen; and consequently
ofthat limitwiththetwo said lines, indicated onetch- To draw a single line of delimitation of the fishing
map No.2 as points B and D, zone and continental shelf area of Greenland in the
the delimitation line that divides the continental shelf waters between Greenland and Jan Mayen at a distance
and fishery zones of the Kingdom of Denmark andthe of 200 nautical miles measured from Greenland's
Kingdom of Norway is to be drawn as set out in para- baseline."
graphs 91and 92 of the present Judgment. "If the Court, for anyreason,doesnot findit possibleto
drawthe lineof delimitation requested in paragraph2)'
IN FAVOUR: President Sir Robert Jennings; Vice- Denmark requests the Courtto decide, in accordance
President Oda; Judges Ago, Schwebel, Bedjaoui, with international law and in the light of the facts and
Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, arguments developedby the Parties, wherethe line of
Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola; delimitation shall be drawn between Denmark's and
AGAINSTJ:udge ad hoc Fischer." Norway's fisheries zones andcontinenta1shelf areas in
the waters between Greenland and JanMayen, and to
draw that line."
and that Norway had asked the Court to adjudge and de-
clare that the median line constitutedthe boundary forthe
Vice-PresidenOt daandJudgesEvensen,AguilarMawdsley
and Ranjeva appended decIarationsto the Judgmentof the purpose:;of delimitation of the relevant areasof both the
continental shelf and the fisherieszone between Norway
Court. and Denmark in the region between Jan Mayen and

Continued on next pageGreenland. The Court then describes the maritime areas, After examining the Agreement in its context, in the
which have fcatured in the arguments of the Parties light of its object and purpose, the Court also takes into
(paras. 11-21). account the subsequent practice of the Parties, especiallya
subsequent treaty in the same field concluded in 1979.It
irhecontention thata tielitnitationalready exists considers that if the intentionof the 1965Agreement had
(paras. 22-40) been to committhe Partiesto the median linein all ensuing
shelf delimitations, it would have been referred to in the
A principal contention of Norway is the.ta delimitation 1979 Agreement. The Court is thus of theview that the
has already been established between Jan Mayen and 1965 Agreement did not result in a median line delimita-
Greenland. The effectof treaties in force between the Par- tion of the continental shelf between Greenland and Jan
t-ies-a bilateral Agreementof 1965 and the 1958Geneva Mayen.
Conventiononthe Continental Shelf-has been, according

to Norway, to establish the median lineas .theboundary CI~ ~h, 1958GenevaConventionon the ContinentalShelf
tlnecontinental shelf of the Parties, andthe practice of the 31-32)
Parties in rcspect of fishery zones has representeda recog-
nition of existing continental shelf boundariesasbeingalso The validity of the argument that the 1958 Convention
applicable to the exercise of fisheries jurisdiction. These resultedin a median line continental shelf boundary already
contentions, that the applicabilityof a median lineelimi.- ''inplace" between Greenland andJan Mayen is found to
tation in the relations between the Parties has long been depend on whether the Court finds that there are"special
recognized in the context both of the conti~ientalshelf an,d circumstances" as contemplated by the Convention, a
of fishery zones and that a boundary is already in place, question to be dealt with later. The Court thereforeturns
will need to be examined first. to the arguments which Norway bases upon the conductof
the Parties and of Denmark in particular.
The1965Agreentent
(paras. 23-30) Conduct oftheParties

On 8 December 1965, Denmark andNoiway concluded (paras. 33-40)
an Agreement concerning the delimitation of the continen- Norway contendsthat, up to some ten yearsago at least,
tal shelf. Articl1 of that Agreement reads.: the Parties by their "conjoint conduct" had long recog-
nized the applicabilityofa median line delimitation intheir
"The boundary between those parts of the continental
shelf over which Norway and Denmairkrespectively mutual relations. The Court observes thatit is the conduct
exercise sovereign rights shall bethe median line which of Denmark which has primarily to be examined in this
at every point is equidistant fromthe nearest points of
the baselines fromwhichthebreadth ofthe territorial sei3 TheCourtisnot persuadedthata Danish Decreeof7 June
of each Contracting Party is measured." 1963 concerning the Exercise of Danish Sovereignty
Article 2 provides that "in order that the principle forth over the Continental Shelf supports the argument which
in article 1 may be properly applied, the boundary shall Norway seeksto base on conduct. Nor doesa Danish Act
consist of straight lines" which are thendl:finedby eight of 17 December 1976or an Executive Order of 14 May
points, enumerated with the relevantgeode.ticcoordinate!; 1980, issued pursuant to that Act, commit Denmark to
and as indicated on the chart thereto annexad; the lines so acceptance of a median line boundary in the area. An
Agreementof 15June 1979betweenthe Partiesconcerning
defined lie in the Skagerrak and part of the North Sea,be.- the delimitation between Norway and the Faroe Islands
tween the mainland territories of Denmarlcand Norway. does not commit Denmarkto a median line boundary ina
Norway contends that the text of article 1 is general in quite different area. Danish statements madein the course
sc:ope,unqualified and without reservation, and that the of diplomatic contactsandduring the ThirdUnitedNations
natural meaning of that text must be "to e,stablishdefini..
tively the basis for all boundaries which would eventually Conference onthe Law of the Sea had also not prejudiced
fall to be demarcated" between the Parties. In its view Denmark's position.
article 2, which admittedly relates only to the continentall Summing up, the cour toncludes that the Agreement
shelves of the two mainlands, "is concerne:dwith demar- entered into between the Parties on 8 ~~~~~b~~,965 can-
ctltion". Norway deduces that the Parties are and remain1 not be interpreted to mean, as contended by N ~ ~ ~ ~ th,at
committed to themedia:nline principle of the 1965Agree- the Parties have already defined the continental shelf
merit. Denmark On the argues that the Agree- boundary as the median line between Greenland and Jan
ment is not of such general application and that its object: Mayen. Nor can the cour tttribute suchan effect to the
and purpose is solely the delimitationin the Skagerrakand. prov~sionofarticle 6,paragraph ofthe 1958convention,
part of the North Sea on a median line basis. so as to conclude that by virtue of that Convention the
The Court considers that the object and purposeof the
median line is already the continental shelf boundarybe-
1965Agreementwas to provide simply for he question of' tween Greenland and JanMayen. Nor can such a result bc
the delimitationin the Sltagerrakandpart of theNorth Sea, deduced from the conduct of the Parties concerning the
where the whole seabed.(with the exception of the "Nor- continental shelf boundaryand the fishery zone. In conse-
wegian Trough") consists of continental shelf ata depth of' quence, the Court does not consider that a median line
less than 200 metres, ar~dthat there is nothing to suggest boundary is already "in place", either as the continental
that the Parties had in mind the possibilily that a shelf' shelf boundary, or as that of the fishery zone. The Court
boundary between Greenland and Jan Mayen might one therefore proceedsto examinethe law applicableatpresent
day be required, or intended that their Agreement should to the delimitation question still outstanding betweenthe
apply to such a boundary. Parties.

(paras. 41-48) The Court notes that the Parties differ on the question whether what is required is one delimitation line or two lines, Denmark asking for"a single line of delimitation of the fishery zone and continental shelf area", and Norway contending that the median line constitutesthe boundary for delimitation of the continental shelf, and constitutes also the boundary for the delimitationof the fishery zone, i.e., that the two lines would coincide, but the two bound- aries would remain conceptually distinct. The Court refers to the~ulf of Maine case in which it was asked what was "the course of the single maritime boundary that divides the continental shelf and fishery zones of Canada and the United Statesof America". It ob- serves that in the present caseit is not empowered--or con- strained-by any agreement for a single dual-purpose
The Court then observesthat itis called uponto examine every particular factor of the case which might suggest an adjustment or shifting of the median line provisionally drawn. The aim in each and every situation must be to achieve "an equitable result". From this standpoint, the 1958Convention requires the investigationof any "special circumstances"; the customary law based upon equitable principles, on the other hand, requiresthe investigation of "relevant circumstances". 5 1Theapplicable law The concept of "special circumstances" was included in
the 1958 Geneva Conventions on the Territorial Sea and
the Contiguous Zone (art. 12)and onthe Continental Shelf
(art. 6,paras. 1 and 2). It was and remains linked to the
equidistance method there contemplated.It isthus apparent
that special circumstances are those circumstances which
might distort the result produced by an unqualified appli-
cation of the equidistance principle. General international
law has employed the concept of "relevant circum-
stances". 'Thisconcept can be defined as a fact necessary
to betake11into account,in the delimitation process,to the
extent that it affects the rights of the Parties over certain
maritime areas. Although it isa matter of categories which
are different in origin and in name, there is inevitably a
tendency towards assimilation between the special circum-
stancesof article 6 of the 1958Conventionandthe relevant
circumstances under customary law, andthis if only be-
/> cause they both are intendedto enable the achievementof
an equitable result.This must be especiallytrue in the case
of opposite coasts where, as has been seen, the tendency
of customary law, like the terns of article 6, has been to
postulatet.hemedian lineas leading prima facieto an equi-
tableresult.
The Court thenturns to the question whether the circum-
stances of'the present case require adjustmentor shifting
of that line, taking into account the arguments reliedon by
Norway to justify the median line, and the circumstances
invoked by Denmark asjustifying the 200-mile line.
to
of
Disparity of length ofcoasts
61-11)
A fitst factor of a geophysical character, and one which
has featured most prominently in the argument of Den-
mark, in regard t~ both continental shelf and fishery zone,
CUS-
is the disparity or disproportion between the lengths of the
coastsM.
Prima facie,amedian line delimitation between opposite
coasts results in general in an equitable solution, particu-
larly ifthe coasts in question are nearly parallel. There are,
however, situations-and the present case is one such-in
which the:relationship between the lengthof the relevant
coasts, and the maritime areas generated by themby appli-
cation of the equidistance method, is so disproportionate
that it has been found necessaryto take this circumstance
into account in orderto ensure an equitable solution.
any adjustment
1, the light of the existing case-law, the court comes
to the conclusion that the striking difference in length of
the relevant coasts in this case (which had been calculated
as approximately 9 (for Greenland) to 1(for Jan Mayen))
a special circumstance within the meaning of
article 6, paragraph 1, of the 1958Convention. Similarly,
as regards the fishery zones, the Court is of the opinion
that the application of the median line leadsto manifestly
circumstances" inequitable results.
It follows that, in the light of the disparity of coastal
lengths, t:hemedian line should be adjusted or shifted in
such a way asto effect a delimitation closerto the coast of
Jan Mayen. It should, however,be made clear that taking
account of the disparity of coastal lengths doesnot mean
a direct and mathematical application of the relationship
between the length of the coastal front of eastern Green- ,
land and that of Jan Mayen. Nor do the circumstances
require the Court to uphold the claim of Denmarkthat the
boundary line should be drawn 200 miles fromthe base-

52 lines on the coast of eastern Greenland,i.e., a delimitation Population andeconomy
giving Denmark maximum extensionof its claim to conti-. (paras. 79-80)
ne:ntalshelf and fishery zone.The result of such a delimi-,
tation would beto leaveto Norway merelythe residualpart: Denmark considers as also relevant to the delimitation
of'the"area relevanttothe delimitation dispute" asdefined the major differences between Greenlandand Jan Mayen
by Denmark. The delimitation accordingto the 200-mile as regards population and socio-economic factors.
line calculated from the coasts of eastern Greenland may The Court observes that the attributionof maritime areas
from a mathematical perspectiveseemmore equitablethan to the territory of a State, which, by its nature, is destined
th:ateffected on the basis ofthe median line, regard being to bepcrmanent, is a legal processbased solely on thepos-
sessionby the temtory concernedofa coastline. The Court
had to the disparity in coastal lengths; but this does not recalls in the present dispute the observations ithad occa-
mean that the result is equitable in itself,, which is the
objective of every maritime delimitationbased onlaw.The sion to make, concerning continental shelf delimitation, in
Court observes in this respect that the coast of JanMayen, the Continental Shelf (Libyan Arab Jamahiriya/Malta)
no less than that of eastern Greenland, generates potential case, namely, that a delimitation should not be influenced
tit'leto the maritime areas recognized by customary law, by the relative economic position of thetwo Statesin ques-
i.e., in principle up to a limit of 200 miles from its base- tion, in such a way that the area of continental shelf re-
lines. To attribute to Norway merely the residual area left garded as appertaining to the less rich of the two States
after giving full effect to the eastern coast of Greenland would be somewhat increased in order to compensate for
would run wholly counter to the rights of Jan Mayen and its inferiority in economic resources.
also to the demands of equity. The Court therefore concludes that, in the delimitation
Atthis stage of its analysis, the Court thus considers that to be effected in this case, there is no reason to consider
neither the median line nor the 200-mile line calculated either the limited nature of the population of Janayenor
from the coasts of eastern Greenland in the relevant area socio-economic factors as circumstances to be taken into
account.
should be adopted as the boundary of the continental shelf
or of the fishery zone. [t follows that the boundary line Security
must be situated between these two lines described above, (para. 81)
and located in such a way that the solution obtainedis ius-
tified by the specialcircimstances confronted by the l-958 Norway has argued, in relation to the Danishclaimto a
Convention on the Continental Shelf, and equitable on 200-mile zone off Greenland, that ..the drawing of a
the:basis of the principles and rulesof custclmaryinterna- boundary closer to one State than to another would imply
tional law. The Court will therefore next consider what an inequitabledisplacementof the possibilityofthe former
other circumstances may also affect the position of the State to protect interests which require protection,,.
boundary line.
In the LibyaIMaltacase, the Court was satisfied that
Access toresources "the delimitation which will result from the application
(paras. 72-78) of the present Judgment is. ..not so near to the coast of
either Party as to make questions of securitya particular
The Court then turns to the question whether accessto consideration inthe present case" (I.C.J.Reports 1985,
the resources ofthe area of overlapping claims constitutes p. 42, para. 51).
a fiictorrelevant to the delimitation. The Parties are essen- The Court is similarly satisfied in the present case as
tially in conflict over access to fisheryesoui:ces,the prin- regards the delimitationto be described below.

cipal exploited fishery resource being cape1:in.The Court Conductof theParties
has therefore to consider whether any shifting or adjust- (paras. 82-86)
ment of the median line, as fishery zone bou.ndary,would
be requiredto ensure equitable accessto the capelin fishery Denmark has contendedthat the conduct of the Parties
res~urces. is a highly relevant factor in the choice of the appropriate
It appears to the Court that the seasonal migrationof the method of delimitation where such conduct has indicated
capelinpresents a pattern which, northofthe 200-mile line someparticular methodas being likelyto produce an equi-
claimed by Iceland, may be said to centre on the southern table result. Inthis respect, Denmarkreliesonthe maritime
part of the area of overla.ppingclaims, approximately be- delimitation between Noway and Iceland, and onabound-
tween that line and the parallelof 72" north latitude, and ary line establishedby Noway between the economiczone
that the delimitation of the fishery zone should reflectthis of mainland Norway and the fishery protection zoneofthe
Svalbard Archipelago (Bear Island/Bjerrnaya).
fad:. It is clear that no delimitationin the area could guar-
antee to each Party the presence in every year of fishable So far as Bear Island is concerned, this territoryis situ-
quantities of capelin in the zone allotted to it by the line. ated in a region unrelatedto the areaof overlapping claims
It appears, however, to t;heCourt that the median line is nowto be delimited.Inthat respect, the Court observesthat
too far to the west for Denmark to be assured of an equi- there can be no legal obligation fora party to a dispute to
table accessto the capelin stock, since it would attributeto transpose, for the settlement of that dispute, a particular
Noway the whole of the area of overlapping claims. For solution previously adoptedby it in a different context.As
this reasonalsothe medianlinethus requiresto be adjusted for the delimitation between Iceland and Norway, interna-
or shifted eastwards. The Court is further :satisfiedthat tional law does not prescribe, with a view to reaching an
while ice constitutes acoi~siderableseasonal restrictionof equitable solution, the adoption of a single method for
accr:ssto the waters, it does not materially affect accessto the delimitation of the maritime spaces on all sides of an
migratory fishery resourcesin the southern partof the area island, or for the whole of the coastal frontof a particular
of overlapping claims. State, rather than, if desired, varying systemsof delimita-tion for the various parts of the coast. The conduct of the tion, indicated on the sketch-map as points I and J; simi-
larly, the median line shows two corresponding changes
parties will in many cases therefore have no influence on
such a delimitation. Forthese reasons, the Court concludes of direction, marked as points K and L. Straight lines
that thc conduct of the Parties does not constitute an ele- drawn between point I and point K, and between point J
ment which could influence the operation of delimitation and point L, thus divide the area of overlapping claims into
in the present case. three zones, to be referred to, successively from south to
north, as zone 1,zone 2 and zone 3.
Thedefnitiotr of the delitjlitation line [Para. 921The southernmost zone, zone 1, corresponds
(paras. 87-93) essential1.yto the principal fishing area. In the view of the
Court, the two Parties should enjoy equitable access to the
Having thus completed its examination of the geophysi- fishing resources of this zone. For this purpose a point, to
cal and other circumstances brought to its attention as be designated point M, is identified on the 200-mile line
appropriate to be taken into account forthe purposes of the claimed by Iceland between points B and D, and equidis-
delimitation of the continental shelf and the fishery zones, tant from those points, and a line is drawn from point M
the Court has come to the conclusion that the median line, so asto intersect the line between points J and, at apoint
adopted provisionally for both as first stage in the delimi- designated point N, so as to divide zone 1 into two parts
tation, should be adjusted or shifted to become a line such
as to attribute a larger area of maritime space to Denmark of equal area. The dividing line is shown on sketch-map
than would the median line. The line drawn by Denmark No. 2 as the line between pointsN and M. So far as zones2
200 nautical miles from the baselines of eastern Greenland and 3 are concerned, it isa question of drawing the appro-
would, however, be excessive as an adjustment, and would priate conclusions, in the application of equitable princi-
be inequitable in its effects. The delimitation line must ples, from the circumstance of the marked disparity in
therefore be drawn within the area of overlapping claims, coastal lengths, discussed in paragraphs 61 to 71 above.
between the lines proposed by each Party. The Court will The Court considers that an equal division of the whole
therefore now proceed to examine the question of the pre- area of overlapping claims would give too great a weight
cise position of that line. to this circumstance. Taking into account the equal divi-
sion of zone 1,it considers that the requirements of equity
To give only a broad indication of the manner in which would be met by the following division of the remainder
the definition of the delimitation line should be fixed, and of the area of overlapping claims: apoint (0 on sketch-map
to leave the matter for the further agreement of the Parties, No. 2) is to be determined onthe line between 1and K such
as urged by Norway, would in the Court's view not be a that the distance from I to 0 is twice the distance from 0
complete discharge of its duty to determine the dispute. to K; the delimitation of zones 2 and 3 is then effected by
The Court is satisfied that it should define the delimitation the straight line from point N to this point 0, and the
line in such a way that any questions which might still straight line from point 0 to point A.
remain would be matters strictly relating to hydrographic
technicalities which the Parties, with the help of their The Court sets out the coordinates of the variouspoints,
experts, can certainly resolve. The area of overlapping for the information of the Parties.
claims in this case is defined by the median line and the
2.00-mile line from Greenland, and those lines are both Declaration of Vice-PresidentOda
geometrical constructs; there might be differences of opin-
ion over basepoints, but given defined basepoints, the two In his declaration, Judge Oda explains that, the Court
lines follow automatically. The median line provisionally havingtaken a decision onthe substance ofthe case despite
drawn as first stage in the delimitation process has accord- his own view that the Application should have been dis-
ingly been defined by referenceto the basepoints indicated missed as misconceived, he voted with the majority be-
by the Parties on the coasts of Greenland and Jan Mayen. cause the line chosen lay within the infinite range of pos-
Similarly, the Court may define the delimitation line, now sibilities open to selection by the Parties had they reached
to be indicated, by reference to that median line and to the agreement.
200-mile line calculated by Denmark from the basepoints
on the coast of Greenland. Accordingly, the Court will pro-
Declaration of Judge Evensen
ceed to establish such a delimitation, using forthis purpose
the baselines and coordinates which the Parties themselves In hi:; concurring declaration, Judge Evensen stresses
have been content to employ in their pleadings and oral that the United Nations Convention on the Law of the Sea
argument. of 10December 1982expresses a number of principles that
[Para. 911 The delimitation line is to lie between the must be considered governing principles of international
median line and the 200-mile line from the baselines of law although the Convention has not yet entered into force.
eastem Greenland. It will run from point A in the north,
the point of intersection of those two lines, to a point on Jan Mayen must be regarded an island and not solely a
the 200-mile line drawn fromthe baselines claimed by Ice- rock. ~ ~ i ~~21,paragraph 2, of the convention provides
land, between points D (the intersection of the median line that inprinciple islands be governedbythe samelegal
with the 200-mileline claimedby Iceland) and I3(the inter- regimeas land territoryw.Thus, JanMayenmustbe
section of Greenland's 200-mile line andthe 200-mile line taken into considerationin the delimitation ofthe maritime
claimed bv Iceland) on sketch- ma^ No. 2. For the Dumoses zones vis-a-vis Greenland, a continental-sizearea.
of definitibn of thiline, and with'a view to makiig Goper It lies within the Court's measure ofdiscretion to estab-

provision for equitable accessto fishery resources, the area lish a system of equitable access to fish resources in areas
of overlapping claims will be divided into three zones, as of overlapping claims. In his declaration, Judge Evensen
follows.Greenland's200-mileline(betweenpoints A and B endorses the proposed system for the distribution of these
on sketch-map No. 2) showstwo marked changes of direc- resources of the adjacent seas.
54 SKETCH-MAP No.2

GREENLAND

by SEA

NORWEGIAN

S E A DeclarationofJudge AguilarMawdsley Judge Oda's view the Court,as a judicial body applying
international law, is,however, precluded from takingthe
Judge Aguilar Mawdsley votedfor the Judgment be- second course unless mandated by both parties to do so.
cause he concurs withits reasoning. He is, however, not It should not haveso proceeded onan Application which
persuadedthat the delimitation lineas drawn by the Court relied on declarations under Article 36, paragraph 2, of
provides for an equitable result.In his opinion,the differ- the Statute,sincesuch declarations conferjurisdiction only
enceinthelengthsofthe coastsofGreenlandandJan Mayen for strictly legal disputes, whereasan act of delimitation
is such that Greenland (Denmark)shouId have receiveda requires an assessmentex aequo etbono.
larger proportion of the disputed area. Given the impor-
tance attached to this factor in the Judgment, it would Judge Oda further criticizesthe Court'sconcentrationon
have been logicalat leastto makean equal distributionof the area of overlap between claims,to the neglect of the
zones 1,2 and 3. whole relevant area,as well as its failure togive any good
reason whya5cessto fishing resources should have been
Declaration ofJudge Ranjeva taken intoaccountinrelationto aboundary applyingto the
continental shelf.
Judge Ranjeva appendeda declaration to the Court's
Judgment indicating that he had voted in favour of the SeparateopinionofJudge Schwebel
operative part and subscribed to the arguments on which
it is based. In his view, the result was an equitable one. Judge Schwebel, inhis separate opinion, maintains that
He would nevertheless have wishedthe Court to be more the Courl:'~Judgment is questionable with respectto the
explicit in stating its reasons for drawingthe delimitation following,three questions:
line adopted.For inthe exerciseof its discretionary power,
the Court could indeed have been more specific as regards 1. Should the lawof maritime delimitation be revised
the criteria, methods and rulesof law applied. Also, he to introduceand apply distributive justice?
would have preferred the Courtto makeit clearthat it was 2. Shouldthediffering extent ofthelengthsof opposite
in relation to the rights of the Parties to their maritime coastlines determinethe position of the line of delimita-
spaces thatthe special or relevant circumstances couldor tion?
sometimes should be taken into account in a delimitation
operation;for thesewere factsaffecting therightsof States, 3. Should maximalist claims be rewarded?
as recognized in positive law, eitherin their entirety,or in
the exercise of the powers relating thereto. The proper However, he concluded that, since what is equitable
administrationofjustice and legal security depend onthe appears to be as variable as the climate of The Hague,
ground for dissent from theCourt'sJudgmentis lacking.
certaintyof the legal rule.
On theotherhand, in theviewofJudgeRanjeva,although SeparateopinionofJudgeShahabuddeen
the Court--and rightlyso-had no needto explorethelegal
scope of statements madeby a State at the Third United In his separate opinion, Judge Shahabuddeensays that
Nations Conference on theLaw of the Sea, the Court he understands the Judgment to be upholding Norway's
should not, considering the exceptional procedure adopted view that the 1958 conventional delimitation formula
on that occasion, have taken accountof positions which means that,in the absence of agreementandof special cir-
were unofficial only and entirely non-committing. cumstances,the boundaryis the median line.He gives his
reasons fbr agreeing withthis view and for declining to
Separate opinionof Vice-President Oda accept that the conventional formulais to be equated with
the customary formula.He is not persuaded that the equa-
In his separate'opinion, Judge Oda emphasizetshat the tion suggestedby the 1977Anglo-French arbitral decision
Court can be endowed withthe comDetenceto delimit a should be followed.
maritime boundary only by specific akeement ofboth par-
ties concerned. Denmark's unilateral Application ought, He thinks that the conceptof natural prolongation,con-
consequently,to have been dismissed. Denmark'ssubmis- sidered in a physical sense, has placed limits on recourse
sions furthermore supposed, wrongly,that the exclusive to proportionality.In his view, the movement away from
economic zone (EEZ) could coexist witha fisheryzone of the physical aspectof natural prolongation should be fol-
the kind eliminated fromthe 1982Conventionon the Law lowedby a relaxationd those limits.
of the Sea.Its request fora single-line boundaryalso over-
looked the separate background and evolution of the con- Judge Shahabuddeengives his reasons for holding that
tinental shelf regime. the decision of the Courtis notex aequo et bono. He has
some doubts as to whether a single line is possible in the
In that respect, Judge Oda considers that the Court absence of agreement by the Partiesto such a line being
wrongly followedthe Parties in applying article6 of the established. He agrees that in the state of the technical
1958Convention, which relatesto a superseded concept of material before the Court, an actual delimitation line
the continental shelf. What applies todayto the delimita- should not be drawn, but considers that,had the material
tion of either the continental shelfor the EEZ is the cus- been adequate, the Court could competently have drawn
tomary law reflected in the 1982Convention, which leaves such a line notwithstanding Norway's non-consentto that
the Partiesfreeto reach agreement onany linetheychoose, being done.
sincethe referenceto an "equitable solution"isnot expres-
sive of a rule of law. Finally, in his view, where Parties have failedto agree
on a boundary, the resulting dispute as to what is the
A third party called uponto settle a disagreementover boundaryis susceptible of judicial settlement viaa unilat-
delimitation mayeithersuggest guidelinesto the partiesor eral Application made under Article 36, paragrap2, ofthe
itself choose a line providing an equitable solution. In Statuteof the Court. Separate opinionofJudge Weeramantry He then examines the equitable principlesin maritime
boundary delimitation, comingto the conclusion that they
Judge Weeramantry, in his separate opinion, expresses are the fundamental principles whichnow apply to mari-
his;agreement with the Judgment of the Court and exam-
ines the special role played by equity in th,eCourt's rea- time delimitation in customary international law and that
soning and conclusions. As the use of equity in maritime they can be expected to underlieits future development.
delimitation is currently passing through a critical phase, Finally, Judge Ajibola examinesthe conceptsof "special
the opinion studies its operation in thisase from several circumstances" under the 1958 Convention andof "rele-
angles. It looks at the relevanceto theudgment of equita- vant circumstances" under customary international law,
concluding that there is effective equivalence between, on
ble:principles, equitable procedures, equitable methodsand the onehand, the triad of agreement, special circumstances
equitable results. Theoplinionstresses that equity operates, and equidistance and,on the other, that of agreement, rele-
in the Judgment, infrulegem and not contfizlegem or ex vant circumstances and equitable principles, withthe last-
aequo et bono, and traces the various routes of entry of mentioned constituting the ultimate rule under modern
equity into maritime delimitation. It distinguishes the customary law.
a priori employment of equity to work towards a result
from its a posteriori employment, to check a result thus Dissenting opinion of Judgead hoc Fischer
obtained, and sets out tlie various uses of equity and its
various methods of operiltionin this case. It also analyses Judge Fischer has voted against the decisionas he con-
the Judgment in the light of the several cclmponentele- siders that the most equitable solution would have beena
ments of an equitable decision. delimitation at a distance of 200 nautical miles from East
Greenland. His main reasons are the following.
13xaminingthe various uncertaintiesin the use of equity
in maritime delimitation, the opinion seeksto show that He does not think that the Court has sufficiently taken
these do not constitutea sufficient reason foi:rejecting the the difference between the relevant coastsof East Green-
usc:of equity asan aid bothto particular delimitations such land (approximately 524 kilometres)and Jan Mayen (ap-
as the present and to the general development of the law proximately 58 kilometres) into consideration. The ratiois
ofthe sea. more than 9 to 1in favour of Greenland whereasthe ratio
of allocated areais only3 to 1.The'delimitation200 miles
The opinion also looks at the particular invocations,by from Greenland would have allocated areasto the Parties
treaty and otherwise, of equity in maritime delimitation. It in the ratio of6 to 1, which, according to Judge Fischer,
cor~cludesby examining the concept of equity in global would have beenin conformity with the generally accepted
tenns, showing that a search of global traditions of equity principle of proportionality.
can yield perspectives of far-reaching importance to the Contrary to the standpoint of the Court, Judge Fischer
developing law ofthe sea. considers that the fundamental difference between Green-
land and Jan Mayen with respect to their demographic,
Separate opinion of JudgeAjibor'a socio-economic and political structures should have been
taken into consideration.He has underlined that Greenland
In his separate opinion, Judge Ajibola, while strongly is a viable human society with a population of 55,000
supporting the Court's dercision,considers that some areas
of .theJudgment should be elaborated. He :firstrefers to which is heavily dependent on fisheries and withpolitical
some procedural issues relatingto jurisdiction: Could the autonomy whereas Jan Mayen has no population in the
Co~lrtdraw any line, and should the line have been a dual- proper sense of the word.
purpose single lineor two lines? Should onlya declaratory Judge Fischer furthermore considers that the Iceland-
judgment have been given? Can the Court engage in a Jan Mayen delimitation which respects Iceland's 200-mile
delimitation without the agreement of the Parties? How- zone is highly important for the present case.As the rele-
ever that might be, the Court, once convinced that there is vant factorsin the two cases arevery similar,itwould have
an issue in dispute, ought to proceed to a decision on the beenjust and equitable to draw the delimitation linein the
mei:its. present case in a manner similarto the Iceland-Jan Mayen
delimitation.
As to the question of whether there should be one line Judge Fischeris opposedto the methodof usinga median
or two, the development of the lawof maritime delimita- line asa provisionally drawn line. Judicialpracticeis in his
tion and the relevant case-law supports theCourt's conclu- opinion ambiguous and no such method can be deduced
sions. from article6 of the 1958 Convention on the Continental

Characterizing the Danish submissionsas more a claim Shelf.
of entitlement than a call.for delimitation, Judge Ajibola Finally, Judge Fischer considers the methodof dividing
poii~tsout that, despite the disparityof size,the entitlement the area of overlapping claims into three zones and of
of Norway in respect of Jan Mayen is equally justifiable dividing eachof these zones accordingto different criteria
and recognized in international law. to be artificial and without foundationin international law.

Document file FR

6744.pdf

Document Long Title

Summary of the Judgment of 14 June 1993